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Tuesday, November 03, 2009

WILLFUL FAILURE TO PAY OVER WITHHOLDING TAXES APPLIES, EVEN THOUGH EMPLOYER DID NOT HAVE THE MONEY TO PAY IT OVER

A nursing home operator collected payroll taxes from his employees. Instead of paying the collected taxes over to the IRS, the operator spent them on other expenses. The IRS obtained criminal tax convictions under Code Section 7202.

The nursing home operator appealed the conviction, claiming he could not have “willfully” failed to pay over the taxes since he did not have the money to pay them even if he wanted to.  The taxpayer argued that willfullness required “bad faith or evil intent” - which had to be absent if he didn't have the funds to pay over the taxes.

The 9th Circuit Court of Appeals rejected his appeal in 2008. It did so by noting that prior precedent which had opened the door to this type of argument had been subsequently changed. It further noted that the taxpayer's argument was  "inconsistent with common sense, for we think it unlikely that even under [the prior case law], a defendant could succeed in arguing that he did not willfully fail to pay because he spent the money on something else."

Earlier this week, the U.S. Supreme Court refused to review the case. Consequently, it seems highly unlikely that criminal defendants can avoid convictions for failure to pay over withheld taxes simply because they spent the money elsewhere.

U.S. v. Easterday, 102 AFTR 2d 2008-5847 (2008, CA 9) , cert denied 11/02/2009

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