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Court Seems to Hold that Tax Willfulness Good Faith Defense Requires the Defendant to Testify (6/15/22)

In Darst v. United States (M.D. Fla. Case No.
8:21-cv-1292-WFJ-JSS Order dated 6/13/22), CL here,
Darst had long ago been convicted of tax obstruction and four counts of failure
to  file tax returns.  Darst sought belatedly to overturn his
convictions with a petition for writ coram nobis and motion to compel discovery
of documents.  The Court denied
petitioner’s motion on fairly standard grounds for this type of belated hail-mary
gambit.

Rather than discuss the trajectory of the order, I focus on
one part that caught my attention.
  Darst
sought to obtain discovery of certain statements of the IRS Commissioners that “that
filing a tax return is voluntary.”
  (See
Slip Op. 2, 5 (“he had no duty to file a tax return because of the comments by
the commissioners”), & 8-9.)
  Here is
the discussion of the issue (Slip Op. 8-9):

            A
commissioner’s comments about tax laws enacted by Congress do abrogate those
laws. Even so, Petitioner quotes statements by commissioners from 1953 and
1990. Dkt. 20 at 2 n.3. If he contends that these statements caused him to
misunderstand tax law and “because of [this] misunderstanding of the law, he
had a good-faith belief that he was not violating any of the provisions of the
tax laws,” Mr. Darst should have testified and presented his good-faith belief
to the jury at trial.
Cheek v. United States, 498 U.S. 192, 202 (1991).

I have previously written on the issue of the necessity for
the defendant to testify if he asserts a good faith defense.
  Making a Cheek Good Faith “Defense” Without Testifying (Federal Tax Crimes Blog 11/24/11), here.;
and
Cheek Good Faith – Must the Defendant Testify to Assert the Good Faith “Defense” (Federal Tax Crimes Blog 10/13/10), here.  I think the defendant usually cannot assert a
credible good faith defense without testifying, but the tenor of the court’s
last sentence is that a good faith defense requires the defendant to testify.
  I am just not sure that
is the case.

On a related issue, conviction of a tax crime requires that
the legal duty be (i) objectively knowable (a determination made by the court) and
(ii) subjectively known to the defendant (a determination made by the fact
finder, usually the jury). See
Certainty of the Law’s Command and
Willfulness
(Federal Tax Crimes Blog 9/10/09), here.   Perhaps
Darst’s strategy was to address the objectively knowable issue.
  In James v. United States, 366 U.S.
213 (1961), the leading authority on this line of cases, the jury convicted James
of tax evasion – meaning that the jury found he subjectively intended to commit
the crime — but the Supreme Court held that in view of the confused state of Supreme
Court authority, on an objective level, he could not be convicted of violating
the confused law, a confusion that, given the jury’s determination, he did not
even know about.
  So, perhaps Darst
stumbled into something here that got past the court.

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