Any person who willfully attempts to evade or defeat any tax or the payment thereof is, in addition to other penalties provided by law, guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or imprisoned not less than one year nor more than five years, or both such fine and imprisonment, together with the costs of prosecution.

History: 1953 Comp., § 72-13-85, enacted by Laws 1965, ch. 248, § 73.

Prior assessment not needed. — This section covers all willful attempts to evade taxes, including willful failure to file returns if that results in evasion of taxes and willful failure to pay taxes required by law if that is motivated by an attempt to evade. There need not be a prior assessment of taxes before a defendant may be convicted of evasion of taxes. State v. Long, 1996-NMCA-011, 121 N.M. 333, 911 P.2d 227.

Traditional standard of proof applied in tax fraud cases. — Court of appeals would not require a higher standard of proof in terms of criminal intent in tax fraud cases, choosing instead to follow the traditional standard of appellate review in criminal cases. State v. Martin, 1977-NMCA-049, 90 N.M. 524, 565 P.2d 1041, cert. denied, 90 N.M. 636, 567 P.2d 485, overruled on other grounds by State v. Wilson, 1994-NMSC-009, 116 N.M. 793, 867 P.2d 1175.

Appropriateness of incarceration as penalty. — It was not error for the trial court to impose a sentence of incarceration pursuant to the plea and disposition agreement where defendant was given an opportunity to explain what efforts he had made to acquire funds for restitution and failed to present evidence sufficient to excuse his inability to present any funds. State v. Bowie, 1990-NMCA-068, 110 N.M. 283, 795 P.2d 88.

Attorney convicted for violation of this section was suspended from the practice of law. In re Cox, 1994-NMSC-054, 117 N.M. 575, 874 P.2d 783.

Tax evasion is a crime involving moral turpitude, because fraud is an essential part of tax evasion. Wittgenstein v. Immigration & Naturalization Serv., 124 F.3d 1244 (10th Cir. 1997).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 71 Am. Jur. 2d State and Local Taxation § 7.

Right of grantor or transferor or his privies to attack conveyance or transfer made for purpose of evading taxation, 118 A.L.R. 1184.

Actionability of accusation or imputation of tax evasion, 32 A.L.R.3d 1427.

Construction and application of United States Sentencing Guideline § 2T1.4(b)(2) (18 USCS § 2T1.4(b)(2)), authorizing increase in base offense level for individual for use of "sophisticated means" to impede discovery of tax fraud, 131 A.L.R. Fed. 601.

Construction and application of 26 USCA § 6015(b)(1)(C) requiring that spouse not know of understatement of tax arising from erroneous deduction, credit, or basis to obtain innocent spouse exemption from liability for tax, 154 A.L.R. Fed. 233.

Construction and application of 26 U.S.C.A. § 6015(b)(1)(C), requiring that spouse not know of omission of gross income from joint tax return to obtain innocent spouse exemption from liability for tax, 161 A.L.R. Fed. 373.