Whether a subjective standard must be applied in determining whether there was evidence of full disclosure to support a reliance on a tax professional jury instruction in a criminal tax case

QUESTIONS PRESENTED Willfulness—the intent to violate the law—is an element of certain federal criminal tax offenses, including IRC § 7206(1). Courts have long recognized that good-faith reliance on the advice of a tax professional negates willfulness, where there has been full disclosure of the material facts to the advisor. In Cheek v. United States, 498 U.S. 192 (1991), this Court held that a jury must consider a defendant’s subjective belief in determining whether the defendant held a good-faith belief that he was complying with the tax laws. However, the district court in this case refused to give Mr. Hardy’s requested instruction based on the court’s objective determination that Mr. Hardy’s accountant had not actually received all documents necessary to accurately prepare Mr. Hardy’s tax returns, disregarding Mr. Hardy’s subjective belief that his accountant had all necessary records. In a decision that conflicts with other circuits and relies on a case that preceded Cheek, the Ninth Circuit affirmed the district court’s refusal to provide the defendant’s requested instruction, holding that it is not an abuse of discretion to refuse to give such an instruction where the court has given an adequate instruction on specific intent. The questions presented are: 1. Does this Court’s decision in Cheek v. United States, 498 U.S. 192 (1991), require a court to apply a subjective standard in determining whether there was evidence of full disclosure to support a reliance on a tax professional jury instruction in a criminal tax case? ii 2. Is a defendant entitled to a jury instruction on the defendant’s reliance on a tax professional theory of defense in addition to a standard instruction on specific intent, where there is an adequate foundation for the defense? iii LIST OF ALL PROCEEDINGS United States of America v. Delmar L. Hardy United States District Court, District of Nevada Case No. 3:16-cr-06-MMD-VPC Date of Entry of Jury Verdict: September 22, 2017 (App.17a) Date of Entry of Judgment: May 1, 2018 United States of America v. Del Hardy, Esquire, AKA Delmar L. Hardy United States Court of Appeals for the Ninth Circuit Case No. 18-10174 Decision Date: March 21, 2019 (App.1la) Date of Order Denying Petition for Rehearing en banc: April 25, 2019 (App.19a)