NATIONALLY RECOGNIZED FEDERAL LAWYERS
Can you go to prison for not filing taxes?
|Thanks for visiting Spodek Law Group – we’re a second-generation law firm managed by Todd Spodek, with over 40 years of combined experience handling criminal defense cases. You’re here because you’re worried about not filing taxes, and that means you need answers that cut through the panic. We’ve represented clients in high-stakes federal cases – from Netflix’s Anna Delvey to juror misconduct in the Ghislaine Maxwell trial – and we understand how federal prosecutors think when they’re deciding whether to charge someone with a tax crime.
The short answer is yes, you can go to prison for not filing taxes. The reality is more complicated than that – and far less terrifying than you might think right now.
What the Law Actually Says
The federal statute you need to know is 26 U.S. Code § 7203. It makes willful failure to file a tax return a federal crime – specifically a misdemeanor. If convicted, you’re facing up to one year in federal prison, a fine up to $25,000 ($100,000 for corporations), or both. That’s the maximum penalty on the books.
Most people who don’t file taxes never see the inside of a courtroom, let alone a prison cell. The IRS prosecutes only when they can prove willfulness – that means you knew you had a legal duty to file and you intentionally chose not to do it. Not filing because you’re overwhelmed, confused about what forms to use, or genuinely can’t afford to pay what you owe? That’s not criminal. It’s a civil tax problem with civil penalties.
What Willfulness Actually Means
Federal prosecutors have to prove three things beyond a reasonable doubt to convict you under Section 7203: you were required to file a return, you failed to file when the law required it, and that failure was willful. The third element – willfulness – is where most criminal tax cases fall apart for the government.
Willfulness means you voluntarily and intentionally violated a known legal duty. The IRS has to show you knew filing was required and you deliberately decided not to file anyway. Making an honest mistake doesn’t cut it. Neither does forgetting or being too disorganized to get your paperwork together. What the government looks for is a pattern – multiple years of not filing after you’ve received IRS notices, particularly when you’re taking affirmative steps to hide income or deceive the IRS about what you owe.
You don’t even need to owe taxes to be prosecuted under Section 7203. As long as your gross income was high enough to trigger a filing requirement, the government can charge you for not filing – even if you would have gotten a refund.
When the IRS Actually Prosecutes
In 2016, the IRS indicted 1,437 taxpayers out of more than 140 million for tax evasion involving legal-source income. That’s roughly 0.001% of all taxpayers. By fiscal year 2022, IRS Criminal Investigation initiated about 2,550 criminal investigations total – covering all tax crimes, not just failure to file – and they maintain a conviction rate above 90% on cases they actually prosecute.
Those numbers tell you something important: the IRS is selective. They don’t have the resources to prosecute everyone who misses a filing deadline, and they don’t want to. Criminal referrals happen when there’s egregious conduct – years of non-filing despite repeated warnings, substantial amounts of tax owed, attempts to hide assets or income, or combining failure to file with other criminal conduct like money laundering or fraud.
If you made $60,000 last year and forgot to file because you were dealing with a family emergency, you’re not getting indicted. You’ll get civil penalties – the IRS charges a minimum penalty of $515 or 100% of the tax due (whichever is less) for returns filed more than 60 days late in 2025, plus interest at 7% on any unpaid balance. Painful, yes. Criminal? No.
The Difference Between Failure to File and Tax Evasion
Tax evasion under 26 U.S.C. § 7201 is a felony – five years maximum in federal prison and fines up to $250,000 for individuals. The critical difference is that tax evasion requires an affirmative act to evade or defeat paying taxes you know you owe. Filing a false return with fabricated deductions. Creating shell companies to hide income. Keeping two sets of books. Moving money offshore to avoid detection. These are evasion tactics that involve active deception.
Failure to file is passive by comparison – you’re not doing something you’re required to do, but you’re not lying to the IRS about it either. That’s why it’s a misdemeanor, not a felony. Section 7203 is actually a lesser included offense of Section 7201, which means if prosecutors can’t prove you took affirmative steps to evade taxes, they might still be able to prove you willfully failed to file.
Most people charged with tax crimes face Section 7201 charges, not Section 7203. The IRS Criminal Investigation division focuses on bigger fish – tax fraud involving hundreds of thousands or millions of dollars, sophisticated schemes, repeat offenders who thumb their nose at the system year after year.
What Happens If You Haven’t Filed in Years
Multiple years of unfiled returns get the IRS’s attention. They create a pattern that starts to look like willfulness rather than neglect. But even then, criminal prosecution isn’t automatic – or even likely for most people. The IRS would much rather you come forward voluntarily, file the missing returns, and work out a payment plan for what you owe. They get their money that way without spending resources on a prosecution.
The worst thing you can do is nothing. Ignoring the problem doesn’t make it disappear. Every year you don’t file, you’re adding to the civil penalties and interest – and you’re also potentially extending the statute of limitations for criminal prosecution, which is six years for failure to file charges. If the IRS sends you notices demanding that you file and you continue ignoring them, you’re building their case that your failure is willful.
Coming forward before the IRS comes after you changes the analysis completely. The IRS has voluntary disclosure programs specifically designed to encourage people who haven’t filed to get current without facing criminal charges. It’s not a get-out-of-jail-free card – you still owe the taxes, penalties, and interest – but it demonstrates you’re not trying to evade your obligations, which undermines any argument that your conduct was willful.
Why You Need a Federal Criminal Defense Attorney
If the IRS Criminal Investigation division contacts you – or if you’ve received a grand jury subpoena, or if IRS agents showed up at your door – you’re past the civil penalty stage and well into criminal investigation territory. Don’t talk to them without a lawyer. Anything you say to IRS-CI agents can and will be used to prosecute you. That includes explanations that seem innocent to you but establish willfulness to prosecutors.
At Spodek Law Group, we handle cases where other attorneys back away. Our criminal defense attorneys include former federal prosecutors who understand exactly how the government builds tax cases and where the weaknesses are in their evidence. Todd Spodek’s father was a criminal defense lawyer – he grew up watching these cases unfold, and he’s spent many, many years defending clients against federal charges that seemed impossible to beat.
The key to defending a failure-to-file case is attacking the willfulness element. Did you actually know you were required to file? Did you have the mental capacity to understand your legal obligations? Were there circumstances – financial hardship, illness, family crisis – that explain why you didn’t file without proving you intended to violate the law? These are fact-intensive defenses that require someone who knows how to tell your story to a jury in a way that creates reasonable doubt.
We’ve been featured in the New York Post, Bloomberg, and Newsweek for our work on federal cases, and we’re available 24/7 because we know these situations don’t wait for business hours. If you’re being investigated or charged with tax crimes, the decisions you make in the next few days will affect the rest of your life. We can help you make those decisions from a position of knowledge rather than panic.
Can you go to prison for not filing taxes? Yes – but only if the government can prove you willfully violated the law, and that’s a high bar they rarely clear for ordinary people who made mistakes or fell behind. What you can’t afford to do is ignore the problem and hope it goes away. It won’t.