Unpublished Disposition, 872 F.2d 431 (9th Cir. 1988)

MEMORANDUM^** 

Kenneth Nelson appeals his conviction on three counts of failure to file income tax returns in violation of 26 U.S.C. § 7203. Nelson contends that the district court erred when it refused to give certain proposed jury instructions. We affirm the judgment of the district court.

On February 17, 1987, a federal grand jury sitting in Reno, Nevada returned a three-count indictment charging Nelson with failure to file valid individual income tax returns for the tax years 1982, 1983 and 1984, in violation of 28 U.S.C. § 7203. Upon consent of the parties, Nelson's jury trial was presided over by a magistrate. The jury returned a guilty verdict on all counts of the indictment. Nelson appealed his conviction to the district court claiming that the magistrate erred in rejecting certain of his proposed jury instructions. By minute order dated February 17, 1988, the district court affirmed the judgment of conviction of the magistrate. Nelson now appeals the district court's order.

Nelson's proposed jury instructions rejected by the magistrate fall into three broad categories: (1) two instructions relating to the Anti-Injunction Act, 26 U.S.C. § 7421, and its preclusive effects on civil remedies in tax cases; (2) three instructions concerning negation of the willfulness mental element in Sec. 7203; and (3) four instructions concerning the applicability of the Internal Revenue code to "income" of United States citizens such as Nelson. The district court properly determined that the magistrate did not commit error in rejecting each of these proffered jury instructions.

We review the language or formulation of the jury instructions given by the district court for abuse of discretion. United States v. Wellington, 754 F.2d 1457, 1462 (9th Cir.), cert. denied, Utz v. United States, 474 U.S. 1032 (1985); United States v. Green, 745 F.2d 1205, 1209 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985). Failure to submit a proper jury instruction raises a question of law subject to de novo review. Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1044 (9th Cir. 1987) (citing 999 v. C.I.T. Corp., 776 F.2d 866, 871 (9th Cir. 1985)).

The district court properly rejected Nelson's jury instructions concerning the lack of civil remedies from tax assessments afforded by the Anti-Injunction Act (Act) and other remedial devices such as declaratory judgments. Nelson claims that since these statutes precluded him from bringing a lawsuit against the government to obtain a judicial determination of his tax liability, he was forced to rely on his own interpretation of the law. This argument is flawed in two respects. First, the Act does not apply to criminal proceedings and, thus, instructions relating to the Act would have merely confused the jury. See United States v. Buras, 633 F.2d 1356, 1360 (9th Cir. 1980) (district court correctly rejected defendant's proffered jury instruction when instruction concerned matter irrelevant to issue of criminal liability). In addition, Nelson's assertions notwithstanding, both declaratory judgments and the Act permit individuals to challenge their civil tax liabilities under specified circumstances. See, e.g., 26 U.S.C. §§ 6212(a) and (c), 6213(a), 6672(b), 6694(c), 7426(a) and (b) (1), and 7429(b). Thus, the district court properly rejected Nelson's proposed jury instructions concerning civil remedies and the Act since they were irrelevant to the proceedings and a misstatement of the law. United States v. Coin, 753 F.2d 1510, 1511 (9th Cir. 1985); United States v. Little, 753 F.2d 1420, 1433 n. 3 (9th Cir. 1984); Buras, 633 F.2d at 1360.

The district court also correctly rejected Nelson's proposed jury instructions relating to Sec. 7203's mental state standard of willfulness. Nelson claims that although the court instructed the jury on the good faith defense it was error for the district court to refuse his proffered instructions stating specifically that good faith, albeit incorrect, interpretation of Supreme Court caselaw can negate Sec. 7203's requirement that a defendant "willfully" fail to file tax returns. The fact that the district court did not accept the specific language proposed by Nelson provides no ground for appellate relief. Since the court's instructions to the jury adequately instructed the jury on Nelson's good faith defense, the court need not have accepted the specific language proposed in his rejected instructions. Hasbrouck, 842 F.2d at 1044 ("So long as the instructions on each element of the case are adequate to insure that the jury fully understands the issues, no particular formulation or wording is required."); see also United States v. Washington, 797 F.2d 1461, 1476 (9th Cir. 1986), cert. denied, 479 U.S. 1086 (1987); United States v. Hayes, 794 F.2d 1348, 1350-51 (9th Cir. 1986); United States v. Falsia, 724 F.2d 1339, 1342 (9th Cir. 1983).

Finally, the district court properly rejected Nelson's proposed jury instructions concerning the applicability of federal tax laws to income earned by United States citizens. Nelson claims that is was error for the trial court to refuse to give his instructions concerning his theory that a United States citizen is not a "person" and that his wages were not "income" within the meaning of the Internal Revenue Code. Such a construction of the Code has been consistently rejected by federal courts. See, e.g., United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981); United States v. Rice, 659 F.2d 524, 528 (5th Cir. 1981); United States v. Buras, 633 F.2d 1356, 1361 (9th Cir. 1980). Since Nelson's construction of the Code had no basis in law, he was not entitled to an instruction on this defense theory. See Hasbrouck, 842 F.2d at 1044; Hayes, 794 F.2d at 1350-51; United States v. Coin, 753 F.2d 1510, 1511 (9th Cir. 1985).

Accordingly, the district court did not err in affirming the magistrate's rejection of Nelson's proffered jury instructions.

AFFIRMED.