The opinion
CHARLES CLARK, Circuit Judge,
dissenting:
I fully agree with the majority that the question of taxability of funds received for plasma taken from human blood is novel. I further agree that defendant’s voluntary submission to the plasmapheresis process negates any legal construct of the funds as damages received for personal injuries. My problem arises because the court charged the jury that all funds received by the defendant were taxable income. I do not believe the government proved beyond a reasonable doubt that this was legally true. 1
*850 The government took the position that monies paid to Mrs. Garber were for personal services. Mrs. Garber contended in the alternative that the payments she received were tort damages, or that they came from the sale of a product. Just as we are all convinced Mrs. Garber’s tort damages theory is faulty, I am convinced Mrs. Garber was not rendering personal services. She was selling tangible property in the form of a constituent part of her blood. This was as much a product as if Mrs. Garber had sold an eye or one of her kidneys. Taxability depends not on gross receipts but on the seller’s net income. 2 The trial court was in error in preventing the development of this theory of defense. The government put on testimony by a tax attorney-law professor that if a sale of a product was involved in Mrs. Garber’s plas-mapheresis, the taxpayer’s basis would be zero. However, this testimony was taken on the contingent basis that it would only be offered if the court admitted the defendant’s expert evidence to the effect that in this product sale the basis had to be assumed to be equal to the selling price. Since the court refused to permit defendant’s witness to testify, the record is devoid of any proof of defendant’s basis in the product she sold.
I am quick to admit I have no idea what basis a taxpayer would have when selling a part of his or her body. It is only necessary to say that the government failed to prove that Mrs. Garber knew what this basis was or that it was substantially below the value she received. 3 Certainly it was not so obvious she had no basis in the property sold that her actions were willfully criminal. The absence of proper proof to establish her base heightens my nonjudicial yet serious doubts as to the wisdom of the government’s choice to prosecute Mrs. Garber criminally in this case of first impression. I am sure, however, that I do not want the affirmance of her conviction on my judicial reeord. I respectfully dissent.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, and COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, *851 HILL, FAY, RUBIN and VANCE, Circuit Judges.
. As in all criminal prosecutions, the government has the burden of proving every element of the crime charged beyond a reasonable doubt. United States v. House, 524 F.2d 1035 (3d Cir. 1975); United States v. England, 347 F.2d 425 (7th Cir. 1965). In a criminal tax evasion prosecution such as this, the government must prove the existence of a tax deficiency, an affirmative act constituting an evasion or attempted evasion of the tax due, and *850 willfulness. Sansone v. United States, 380 U.S. 343 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965); Lawn v. United States, 355 U.S. 339 , 78 S.Ct. 311 , 2 L.Ed.2d 321 (1958); Holland v. United States, 348 U.S. 121 , 75 S.Ct. 127 , 99 L.Ed. 150 (1954); United States v. Goichman, 547 F.2d 778 (3d Cir. 1976); United States v. Swallow, 511 F.2d 514 (10th Cir. 1975); United States v. Calles, 482 F.2d 1155 (5th Cir. 1973); United States v. Stone, 431 F.2d 1286 (5th Cir. 1970). Unlike a civil assessment for an alleged tax deficiency, the government in a criminal evasion case need not pinpoint the exact amount due. It must only establish beyond a reasonable doubt that a “substantial” amount of tax liability was willfully evaded. United States v. Miller, 545 F.2d 1204 (9th Cir. 1976); United States v. Allen, 522 F.2d 1229 (6th Cir. 1975); United States v. Beasley, 519 F.2d 233 (5th Cir. 1975); Leeby v. United States, 192 F.2d 331 (8th Cir. 1951). Nevertheless, the existence of a tax deficiency is an essential element of the offense. Sansone v. United States, supra; Lawn v. United States, supra; United States v. Bethea, 537 F.2d 1187 (4th Cir. 1976); United States v. Baum, 435 F.2d 1197 (7th Cir. 1970); United States v. Wilkins, 385 F.2d 465 (4th Cir. 1967); United States v. Moody, 339 F.2d 161 (6th Cir. 1964); Sherwin v. United States, 320 F.2d 137 (9th Cir. 1963); Kowalsky v. United States, 290 F.2d 161 (5th Cir. 1961); Willingham v. United States, 289 F.2d 283 (5th Cir. 1961). See also, United States v. Horton, 526 F.2d 884 (5th Cir. 1976); United States v. Burrell, 505 F.2d 904 (5th Cir. 1974). Although a willful misstatement of a material fact on an income tax return which does not affect the stated tax liability may be a punishable offense, 26 U.S.C.A. § 7207 , such conduct does not amount to willful tax evasion in violation of 26 U.S.C.A. § 7201 , the offense charged in this case. Sansone v. United States, supra; United States v. Coppola, 425 F.2d 660 (2d Cir. 1969).
. Taxable gain from the sale of a product is the excess of the selling price over the basis. 26 U.S.C.A. § 1001 . Basis is defined in the Internal Revenue Code as “cost.” 26 U.S.C.A. § 1012 . See United States v. Catto, 384 U.S. 102 , 86 S.Ct. 1311 , 16 L.Ed.2d 398 (1966); Sunray Oil Co. v. CIR, 147 F.2d 962 (10th Cir. 1945).
. Cf. Raytheon Production Corp. v. CIR, 144 F.2d 110, 114 (1st Cir. 1944), which noted: “where the cost basis that may be assigned to property has been wholly speculative, the gain has been held to be entirely conjectural and not taxable.”