dissenting:
¶ 23 I do not believe that a tax deficiency is a necessary element of tax evasion. I also do not believe that Eyre’s initial counsel provided ineffective assistance at trial. Accordingly, I respectfully dissent.
¶ 24 The Utah tax evasion statute states that: “Any person who intentionally or willfully attempts to evade or defeat any tax or the payment of a tax is, in addition to other penalties provided by law, guilty of a second degree felony.” Utah Code Ann. § 76-8-1101(l)(d)(i) (2003 & Supp.2007). The legislature, in the plain language of the statute, did not mention proof of a tax deficiency as an element of the crime. By adding such a requirement, my colleagues today eliminate from the scope of the statute nearly any unsuccessful criminal who tries, but fails, to defeat or evade a tax obligation.
¶25 The statute applies to anyone who “intentionally or willfully attempts to evade or defeat any tax.” Id. (emphasis added). Successful evasion is not required for prosecution under the statute. All that is required is that the state show that the defendant intentionally attempted to evade a tax, not that the attempt was successful in whole or in part. The purpose of the statute is to criminalize the conduct of tax evasion (or the attempt), not to examine the result of the conduct (i.e., an actual tax deficiency).
¶26 In contrast, a civil tax enforcement proceeding, the purpose of which is to recover unpaid taxes, is concerned with the result of tax evasion. See, e.g., United States v. Williams, 875 F.2d 846, 851 (11th Cir.1989) (distinguishing the purposes of and the rules that apply to civil and criminal tax proceedings). To recover unpaid taxes, the state must prove the existence and amount of a tax deficiency. See Jensen v. State Tax Comm’n, 835 P.2d 965, 970-71 (Utah 1992). However, requiring the state to establish a deficiency in the criminal context unnecessarily restricts the scope of the action to only those whose actions were at least in part *799successful in evading the payment of tax. Those whose attempt was unavailing must escape prosecution, as must those who are so successful that the level of success cannot be determined. Surely this is not what the legislature intended.
¶27 Civil and criminal tax enforcement schemes are not hierarchical; rather, they are directed towards different ends, and thus an element that is necessary in one context need not be interlineated into the other based solely on their related subject matter. To do so here, my colleagues not only rewrite the statutory language, they modify the legislative purpose by narrowing its scope dramatically. That is contrary to our responsibility.
¶ 28 Finally, the majority notes that federal case law has required proof of a tax deficiency in a similar statute. I am unpersuaded that this is a sufficient reason to graft a similar requirement into an otherwise clearly stated state statute.
¶ 29 Consequently, I would hold that proof of a tax deficiency is not a required element of criminal tax evasion under our statute, and dissent from the court’s holding on that issue. Moreover, Eyre’s claim that his trial counsel was ineffective is predicated on counsel’s failure to object to the absence of a jury instruction on the “required” element of tax deficiency. Because proof of a tax deficiency is not an element of tax evasion, in my view, Eyre’s trial counsel was not ineffective in failing to object. I therefore also disagree with my colleagues on the ineffective assistance of counsel claim.
¶30 Under the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Eyre must show that the ineffective assistance of his trial counsel prejudiced the defense. I do not believe that Eyre has met this burden with respect to any of the four alleged deficiencies he has raised.
¶ 311 would affirm.