Safe Havens

 

(B)  Crimes of Moral Turpitude.[97]

 

Tax evasion is a CMT where willfulness is an element.  Most courts consult the Supreme Court’s decision in Jordan v. DeGeorge,[98] in determining whether an offense is CMT.  Jordan involved a defendant convicted of conspiracy to defraud the United States of taxes on distilled spirits.  The Supreme Court stated that crimes in which fraud is an element “have always been regarded as involving moral turpitude.”[99]

 

One circuit has strongly suggested that attempted tax evasion is always a crime involving moral turpitude.[100]  It is therefore highly likely that the DHS, BIA, and federal courts of appeals would conclude that a conviction under 26 U.S.C. § 7201 is necessarily a crime involving moral turpitude, which would trigger deportation since it carries a potential sentence of one year or more. 

 

            Most courts have held that convictions for making false or fraudulent statements related to tax returns, under penalty of perjury, 26 U.S.C. § 7206(1), or aiding and assisting in doing so, 26 U.S.C. § 7206(2), necessarily constitute convictions for crimes involving moral turpitude.

 

Board of Immigration Appeals:

 

Matter of Mazza-Alas, File No. A13-408-039, 15 Immigr. Rep. B1-88 (BIA Oct. 27, 1995) (willful failure to file income tax return is not necessarily a crime involving moral turpitude because fraud is not inherent in the crime). 

 

Matter of M, 8 I. & N. Dec. 535 (BIA 1960) (conviction under 18 U.S.C. § 88 (now 18 U.S.C. § 371) of conspiracy to violate the Internal Revenue laws involves moral turpitude when a composite of all specifications in the indictment shows that the object of the conspiracy was to defraud the United States by avoiding taxes), distinguishing Matter of G, 7 I. & N. Dec. 114 (BIA 1956).

Matter of R, 4 I. & N. Dec. 176 (BIA 1950) (intent to defraud is not an element of the offense involved here, which deals with tax “evasion” in Germany in violation of § 396 and 401 of the German Tax Code (possession of untaxed chocolate, depriving the state of revenue), and therefore this crime does not involve moral turpitude).

 

Ninth Circuit:

 

Carty v. Ashcroft, 395 F.3d 1081 (9th Cir. Jan. 19, 2005) (California conviction of willful failure to file a tax return with the intent to evade taxes, in violation of Revenue and Taxation Code § 19406 (1992), involves fraud, and thus constitutes a crime of moral turpitude for deportation purposes under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii)).

 

District Courts:

 

United States v. Carrollo, 30 F.Supp. 3 (D.Mo. 1939) (willful attempt to evade federal tax, although characterized as a felony, was held not to involve moral turpitude, since not violative of universal moral code).

 

[97] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.46 (2005).

[98] Jordan v. De George, 341 U.S. 223 (1951).

[99] Id. at 227-229, 232.

[100] Tseung Chu v. Cornell, 247 F.2d 929, 936 (9th Cir. 1957) (“We follow the rule laid down in the De George case . . . that an intent to defraud the government is a prerequisite to conviction under § 145(b) (the precursor to 26 U.S.C. § 7201) and hence, a conviction thereof where such fraud is charged in the indictment, is conviction of a crime involving moral turpitude”).