dissenting:
As a matter of first impression, I would be willing to accept the majority’s position that willful failure to file a tax return with intent to evade a tax is necessarily a crime of moral turpitude. It is not a matter of first impression, however, and in my view our precedent requires a contrary result.
In Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir.1957), we addressed the question whether a violation of 26 U.S.C. § 145(b) was a crime of moral turpitude. Section 145(b), as it then existed, proscribed willful attempts to evade a tax. We held that a violation of section 145(b) was a crime of moral turpitude, but we did not arrive at that conclusion from the face of the statute itself or from the mere fact of conviction. We relied on earlier case law holding that proof of fraud was required to sustain a *1086conviction under section 145(b). We then said of Tseung Chu:
He was here charged with making in each of four years “a false and fraudulent income tax return.” Fraud may not be an essential element of the crime of wilful attempt to defeat or evade the income tax, but it can be an essential part of that crime. Here fraud was charged as part and parcel of the crime, and to that crime so involving appellant’s alleged fraudulent acts, appellant plead nolo.
Id. at 935 (internal citation omitted). Thus in Tseung Chu we relied on a specific allegation of fraud in order to arrive at the conclusion that the crime involved moral turpitude. There was no such allegation in Carty’s conviction; he pleaded nolo con-tendere to two counts alleging only that he “did willfully and unlawfully fail to file any return or to supply any information with intent to evade any tax imposed by this part.”1 Tseung Chu’s reasoning makes it clear that such an allegation is not enough to establish moral turpitude.
Indeed, Tseung Chu elsewhere makes the point even more specifically than it did in the passage I have quoted above. Anticipating this court’s adverse approach, Tseung Chu had managed to have his earlier conviction modified, so that the judgment’s description of the charge no longer referred to “false and fraudulent income tax returns,” but only to “wilful attempts to evade or defeat an income tax.” We responded to that maneuver as follows:
The “order correcting clerical error in Judgement” eliminating the description of the offense charged as “making false and fraudulent income tax returns” may technically take the judgment out of Class One [“crimes necessarily involving moral turpitude”] described by Judge Chambers in the Twentieth Century-Fox Film classifications, but it does not take the crime as charged out of Class One.
Id. (emphasis in original). Finally, we summed up our decision as follows:
We follow the rule laid down in the De George case supra, and Bloch v. United States, 221 F.2d 786 (9th Cir.1955), that an intent to defraud the government is a prerequisite to conviction under section 145(b) and hence, a conviction thereof where such jraud is charged in the indictment, is conviction of a crime involving moral turpitude.
Id. at 936 (emphasis added).
We reiterated the rationale of Tseung Chu in Khan v. Barber, 253 F.2d 547 (9th Cir.1958). In that appeal, the first question presented was whether a conviction for violating section 145(b) involved moral turpitude. We stated:
This court has already answered the first question affirmatively where, as here, intent to defraud the government is charged in the indictment and found by the jury.
Id. at 549 (emphasis added). A quotation from Tseung Chu immediately followed.
In my view, the rationale of Tseung Chu, reaffirmed in Khan, is fatally inconsistent with any notion that the bare crime of failing to file a tax return with intent to evade taxes is ipso facto a crime of moral turpitude. If intent to evade were sufficient to establish moral turpitude, there would have been no need for us to examine the indictments in Tseung Chu and Khan to make certain that they charged fraud. The charges to which Carty pleaded nolo contendere included no such allegation.
We did not diverge from the rationale of Tseung Chu in our later decision of Goldeshtein v. INS, 8 F.3d 645 (9th Cir.1993), *1087discussed in the majority opinion here. In Goldeshtein we held that the crime of structuring financial transactions in order to avoid currency reports was not a crime of moral turpitude. It is true that we based our decision in Goldeshtein partly on the ground that nothing had been taken from the government, but we also based our decision on the absence of fraud or deception. We pointed out that all of the cases upon which the government relied involved “some false or deceitful conduct through which the alien obtained something from the government.” Id. at 649 (emphasis added). We then held that Goldeshtein’s crime did not share this necessary characteristic for a crime of moral turpitude:
The offense of structuring financial transactions to avoid currency reports, in contrast, does not involve the use of false statements or counterfeit documents, nor does the defendant obtain anything from the government.
Id. at 649 (emphasis added).
Finally, I note the implications of the Supreme Court’s decision in United States v. Scharton, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917 (1932), which held that the longer, six-year statute of limitations for “offenses involving the defrauding or attempting to defraud the United States” did not apply to a conviction for willfully attempting to evade payment of taxes. It is true, as the majority opinion here recites, that SchaHon’s result depended in part on a strict standard of construction applicable to the extended limitations provision. Nevertheless, SchaHon expressly rejected the arguments presented by the government that “fraud is implicit in the concept of evading or defeating” and that “[a]ny attempt to defeat or evade a tax is said to be tantamount to and to possess every element of an attempt to defraud the taxing body.” Id. at 520-21. Although I agree with the majority that Scharton is sufficiently distinguishable that it does not directly control the outcome of Carty’s case, Scharton certainly leans in the same direction as Tseung Chu.
For these reasons, I respectfully dissent from the majority’s opinion. I would grant the petition for review and reverse the decision of the BIA.
. As the majority opinion here notes, California does not require proof of fraud for conviction on this charge. Majority opinion, supra, note 8.