Crimes of Moral Turpitude

Chapter

§ 9.46 16. Tax Evasion

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Tax evasion is a CMT where willfulness is an element.

Since the maximum possible term of imprisonment under 26 U.S.C. § § 7201, 7203, 7206(1), 7206(2), and 7212(a) is at least one year, a conviction of any of these offenses can trigger deportation if it is considered a crime of moral turpitude when committed within five years of admission. Most courts consult the Supreme Court’s decision in Jordan v. DeGeorge,[89] 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.”[90] Applying DeGeorge, three federal courts of appeals have concluded that tax evasion is necessarily an offense involving moral turpitude.

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));

Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (fraud is necessarily an element of New Mexico State tax evasion statute which uses language tracking 26 U.S.C. § 7201);

Tomlinson v. Lefkowitz, 334 F.2d 262, 265-266 (5th Cir. 1964) (“willfulness” element of attempted tax evasion necessarily subsumes all elements of fraud);

Costello v. INS, 311 F.2d 343, 348-349 (2d Cir. 1962) (tax evasion necessarily a crime involving moral turpitude), rev’d on other grounds, 376 U.S. 120 (1964).

One circuit has strongly suggested that attempted tax evasion is always a crime involving moral turpitude. 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”).

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.

See also Gambino v. INS, 419 F.2d 1355 (2d Cir. 1970), cert. den., 399 U.S. 905, 26 L.Ed.2d 559, 90 S.Ct. 2195 (1970) (conspiracy to defraud, taxes);

Khan v. Barber, 253 F.2d 547 (9th Cir. 1958) (fraud is implied);

Carrollo v. Bode, 204 F.2d 220 (8th Cir. 1953), cert. den., 346 U.S. 857, 98 L.Ed. 370, 74 S.Ct. 73 (1953);

Chanan Din Khan v. Barber, 147 F.Supp. 771, 774-775 (D. Cal. 1957), aff’d, 253 F.2d 547 (9th Cir.), cert. den., 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1364 (1958) (conviction of willfully attempting to evade payment of federal income tax held to involve moral turpitude, since intent to defraud was charged and found true);

Matter of C, 9 I. & N. Dec. 524 (BIA 1963) (convictions for filing false and fraudulent income tax returns for violation of 26 U.S.C. § 145(b) held to involve moral turpitude), citing Chanan Din Khan v. Barber, 147 F.Supp. 771, 775 (N.D.Cal., 1957), affirmed, 253 F.2d 547 (9th Cir.), cert. den., 357 U.S. 920 (1958);

Matter of J, 6 I. & N. Dec. 382 (BIA 1954) (conviction of tax evasion in violation of 26 U.S.C. § 145(b) is a CMT, since while “evade” does not mean intent to defraud, the word “willfully” connotes a purposeful intent, because it serves to differentiate between conscious or deliberate acts and accidental or unintentional infractions), citing Matter of W, 5 I. & N. Dec. 759 (BIA 1954);

Matter of W, 5 I. & N. Dec. 759 (BIA 1954) (since moral turpitude inheres in the intent, the offense defined in 26 U.S.C. § 145(b), willful tax evasion, is a crime involving moral turpitude, since willfulness as used in this statute requires wrongful intent and an intent to deprive the government of the proper tax);

Matter of B, 5 I. & N. Dec. 649 (BIA 1954) (conviction for unlawfully attempting to evade payment of taxes imposed by the Canada Excise Tax Act, formerly the Special War Revenue Act, is a conviction for a crime involving moral turpitude);

Matter of A, 1 I. & N. Dec. 436 (BIA 1943) (conviction of tax evasion with intent to evade the payment of a tax, in violation of § 112, subsection 3, of the Special War Revenue Act, Chapter 179, Revised Statutes of Canada and Amending Acts constitute a crime of moral turpitude, since the phrases “with intent to evade the payment of tax” as used in this statute and “with intent to defraud the revenue” as used in this country have so exactly the same meaning as to be used interchangeably).