This Article analyzes the appropriateness of the No-Tax-Due defense, and the circumstances in which the No-Tax-Due defense should prevail against a charge of attempted income tax evasion. Part II poses, as a basis for analysis, a set of hypothetical cases in which the defense is potentially available. Part III reviews the background of this issue, including the statutory scheme of the federal tax crimes, relevant legislative history and the judicial development of the No-Tax-Due defense. Part IV reviews the impossibility defense in the law of attempt and points out its similarity to the No-Tax-Due defense. Part V proposes a revised, and greatly curtailed, No-Tax-Due defense. The formulation of this revised defense draws heavily on the learning developed in the controversy over the impossibility defense in the law of attempt. Finally, Part VI discusses various issues that would be raised if the revised No-Tax-Due defense were adopted.
Ronald H. Jensen, Reflections on United States v. Leona Helmsley: Should 'Impossibility' Be A Defense to Attempted Income Tax Evasion?, 12 Va. Tax Rev. 335 (1993), available at http://digitalcommons.pace.edu/lawfaculty/507/.