231-36 False and fraudulent statements; aiding and abetting. (a) Any person who wilfully makes and subscribes any return, statement, or other document required to be made under title 14, except chapter 238, which contains or is verified by a written declaration that it is true and correct as to every material matter, and which the person does not believe to be true and correct as to every material matter shall be guilty of a class C felony and, upon conviction, shall be subject to one or any combination of the following:

(1) A fine of not more than $100,000;

(2) Imprisonment of not more than three years; or

(3) Probation;

provided that a corporation shall be fined not more than $500,000; and provided further that, if the person wilfully makes and subscribes any return, statement, or other document required to be made under chapter 238, which contains or is verified by a written declaration that it is true and correct as to every material matter and which the person does not believe to be true and correct, then the person shall be guilty of a misdemeanor and, upon conviction, shall be subject to one or any combination of the following:

(1) A fine of not more than $2,000;

(2) Imprisonment of not more than one year; or

(3) Probation.

(b) Any person who wilfully aids or assists in, or procures, counsels, or advises the preparation or presentation of any tax return, affidavit, claim, or other document required to be made under title 14, which is fraudulent or is false as to any material matter, regardless of whether the falsity or fraud is with the knowledge or consent of the person authorized or required to present the return, affidavit, claim, or document shall be guilty of a class C felony and, upon conviction, shall be subject to one or any combination of the following:

(1) A fine of not more than $100,000;

(2) Imprisonment of not more than three years; or

(3) Probation;

provided that a corporation shall be fined not more than $500,000. [L 1932 2d, c 40, 14; RL 1935, 1902; RL 1945, 5136; RL 1955, 115-40; HRS 231-36; am L 1995, c 92, 6; am L 1998, c 103, 1; am L 1999, c 303, 3]

 

Case Notes

 

Where, pursuant to 231-40, the Cheek interpretation of the wilfulness requirement--that a jury must be permitted to consider evidence of a defendant's good faith belief that defendant's conduct did not violate the tax laws, even if that belief was not objectively reasonable, in determining whether defendant acted wilfully--was adopted and applied in construing subsection (a), the trial court erred in excluding defendant's exhibit pursuant to HRE rules 401 and 403 on the grounds that defendant's analysis of the tax laws was irrelevant and that evidence of defendant's legal theories would confuse the jury. 119 H. 60 (App.), 193 P.3d 1260 (2008).

 

 

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