What is the test for a criminal offence of failure to file an income tax return?

The offense of failure to file an income tax return under 26 U.S.C. Sec. 7203 comprises three elements. The government must prove that the taxpayer was required to file a return, that the taxpayer failed to file, and that the failure to file was willful. See Buras, 633 F.2d at 1358. Willfulness in criminal tax violations means a voluntary, intentional violation of a known legal duty. United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976) (per curiam).

Defendant claims that the government failed to prove willfulness, the third element of the crime. Defendant argues that he was not acting willfully because he was advised by his attorney not to file returns. See United States v. Carlson, 617 F.2d 518, 523 (9th Cir.) (defendant's good faith assertion of an invalid Fifth Amendment claim would defeat section 7203 requirement of willfulness), cert. denied, 449 U.S. 1010, 101 S.Ct. 564, 66 L.Ed.2d 468 (1980). The government introduced substantial evidence to rebut this claim. The government established that defendant failed to file returns in the past, had applied for extensions of time, and knew the possible criminal penalties.