26 U.S.C. § 6672

Failure to collect and pay over tax, or attempt to evade or defeat tax

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(a) General rule

Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 or part II of subchapter A of chapter 68 for any offense to which this section is applicable.

(b) Preliminary notice requirement(1) In general

No penalty shall be imposed under subsection (a) unless the Secretary notifies the taxpayer in writing by mail to an address as determined under section 6212(b) or in person that the taxpayer shall be subject to an assessment of such penalty.

(2) Timing of notice

The mailing of the notice described in paragraph (1) (or, in the case of such a notice delivered in person, such delivery) shall precede any notice and demand of any penalty under subsection (a) by at least 60 days.

(3) Statute of limitationsIf a notice described in paragraph (1) with respect to any penalty is mailed or delivered in person before the expiration of the period provided by section 6501 for the assessment of such penalty (determined without regard to this paragraph), the period provided by such section for the assessment of such penalty shall not expire before the later of—(A) the date 90 days after the date on which such notice was mailed or delivered in person, or(B) if there is a timely protest of the proposed assessment, the date 30 days after the Secretary makes a final administrative determination with respect to such protest.(4) Exception for jeopardy

This subsection shall not apply if the Secretary finds that the collection of the penalty is in jeopardy.

(c) Extension of period of collection where bond is filed(1) In generalIf, within 30 days after the day on which notice and demand of any penalty under subsection (a) is made against any person, such person—(A) pays an amount which is not less than the minimum amount required to commence a proceeding in court with respect to his liability for such penalty,(B) files a claim for refund of the amount so paid, and(C) furnishes a bond which meets the requirements of paragraph (3),no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun, or prosecuted until a final resolution of a proceeding begun as provided in paragraph (2). Notwithstanding the provisions of section 7421(a), the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court. Nothing in this paragraph shall be construed to prohibit any counterclaim for the remainder of such penalty in a proceeding begun as provided in paragraph (2).(2) Suit must be brought to determine liability for penalty

If, within 30 days after the day on which his claim for refund with respect to any penalty under subsection (a) is denied, the person described in paragraph (1) fails to begin a proceeding in the appropriate United States district court (or in the Court of Federal Claims) for the determination of his liability for such penalty, paragraph (1) shall cease to apply with respect to such penalty, effective on the day following the close of the 30-day period referred to in this paragraph.

(3) Bond

The bond referred to in paragraph (1) shall be in such form and with such sureties as the Secretary may by regulations prescribe and shall be in an amount equal to 1½ times the amount of excess of the penalty assessed over the payment described in paragraph (1).

(4) Suspension of running of period of limitations on collection

The running of the period of limitations provided in section 6502 on the collection by levy or by a proceeding in court in respect of any penalty described in paragraph (1) shall be suspended for the period during which the Secretary is prohibited from collecting by levy or a proceeding in court.

(5) Jeopardy collection

If the Secretary makes a finding that the collection of the penalty is in jeopardy, nothing in this subsection shall prevent the immediate collection of such penalty.

(d) Right of contribution where more than 1 person liable for penaltyIf more than 1 person is liable for the penalty under subsection (a) with respect to any tax, each person who paid such penalty shall be entitled to recover from other persons who are liable for such penalty an amount equal to the excess of the amount paid by such person over such person’s proportionate share of the penalty. Any claim for such a recovery may be made only in a proceeding which is separate from, and is not joined or consolidated with—(1) an action for collection of such penalty brought by the United States, or(2) a proceeding in which the United States files a counterclaim or third-party complaint for the collection of such penalty.(e) Exception for voluntary board members of tax-exempt organizationsNo penalty shall be imposed by subsection (a) on any unpaid, volunteer member of any board of trustees or directors of an organization exempt from tax under subtitle A if such member—(1) is solely serving in an honorary capacity,(2) does not participate in the day-to-day or financial operations of the organization, and(3) does not have actual knowledge of the failure on which such penalty is imposed.The preceding sentence shall not apply if it results in no person being liable for the penalty imposed by subsection (a).(Aug. 16, 1954, ch. 736, 68A Stat. 828; Pub. L. 95–628, § 9(a), Nov. 10, 1978, 92 Stat. 3633; Pub. L. 101–239, title VII, §§ 7721(c)(9), 7737(a), Dec. 19, 1989, 103 Stat. 2400, 2404; Pub. L. 104–168, title IX, §§ 901(a), 903(a), 904(a), July 30, 1996, 110 Stat. 1465–1467; Pub. L. 105–206, title III, § 3307(a), (b), July 22, 1998, 112 Stat. 744; Pub. L. 115–141, div. U, title IV, § 401(a)(325)(D), Mar. 23, 2018, 132 Stat. 1200.)Editorial NotesAmendments

2018—Subsec. (c)(2). Pub. L. 115–141 substituted “Court of Federal Claims” for “Court of Claims”.

1998—Subsec. (b)(1). Pub. L. 105–206, § 3307(a), inserted “or in person” after “section 6212(b)”.

Subsec. (b)(2). Pub. L. 105–206, § 3307(b)(1), inserted “(or, in the case of such a notice delivered in person, such delivery)” after “paragraph (1)”.

Subsec. (b)(3). Pub. L. 105–206, § 3307(b)(2), inserted “or delivered in person” after “mailed” in introductory provisions and in subpar. (A).

1996—Subsecs. (b), (c). Pub. L. 104–168, § 901(a), added subsec. (b) and redesignated former subsec. (b) as (c).

Subsec. (d). Pub. L. 104–168, § 903(a), added subsec. (d).

Subsec. (e). Pub. L. 104–168, § 904(a), added subsec. (e).

1989—Subsec. (a). Pub. L. 101–239, § 7721(c)(9), inserted “or part II of subchapter A of chapter 68” after “under section 6653”.

Subsec. (b)(1). Pub. L. 101–239, § 7737(a), inserted at end “Nothing in this paragraph shall be construed to prohibit any counterclaim for the remainder of such penalty in a proceeding begun as provided in paragraph (2).”

1978—Pub. L. 95–628 designated existing provisions as subsec. (a), added subsec. (a) heading, and added subsec. (b).

Statutory Notes and Related SubsidiariesEffective Date of 1998 Amendment

Pub. L. 105–206, title III, § 3307(c), July 22, 1998, 112 Stat. 744, provided that: “The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [July 22, 1998].”

Effective Date of 1996 Amendment

Pub. L. 104–168, title IX, § 901(b), July 30, 1996, 110 Stat. 1466, provided that: “The amendment made by subsection (a) [amending this section] shall apply to proposed assessments made after June 30, 1996.”

Pub. L. 104–168, title IX, § 903(b), July 30, 1996, 110 Stat. 1466, provided that: “The amendment made by subsection (a) [amending this section] shall apply to penalties assessed after the date of the enactment of this Act [July 30, 1996].”

Effective Date of 1989 Amendment

Amendment by section 7721(c)(9) of Pub. L. 101–239 applicable to returns the due date for which (determined without regard to extensions) is after Dec. 31, 1989, see section 7721(d) of Pub. L. 101–239, set out as a note under section 461 of this title.

Pub. L. 101–239, title VII, § 7737(b), Dec. 19, 1989, 103 Stat. 2404, provided that: “The amendment made by subsection (a) [amending this section and sections 6694 and 6703 of this title] shall take effect on the date of the enactment of this Act [Dec. 19, 1989].”

Effective Date of 1978 Amendment

Pub. L. 95–628, § 9(c), Nov. 10, 1978, 92 Stat. 3633, provided that: “The amendments made by this section [amending this section and sections 7103 and 7421 of this title] shall apply with respect to penalties assessed more than 60 days after the date of the enactment of this Act [Nov. 10, 1978].”

Public Information To Ensure Employee Awareness of Responsibilities and Liabilities Under Tax Depository System

Pub. L. 104–168, title IX, § 904(b), July 30, 1996, 110 Stat. 1467, provided that:“(1)In general.—The Secretary of the Treasury or the Secretary’s delegate (hereafter in this subsection referred to as the ‘Secretary’) shall take such actions as may be appropriate to ensure that employees are aware of their responsibilities under the Federal tax depository system, the circumstances under which employees may be liable for the penalty imposed by section 6672 of the Internal Revenue Code of 1986, and the responsibility to promptly report to the Internal Revenue Service any failure referred to in subsection (a) of such section 6672. Such actions shall include—“(A) printing of a warning on deposit coupon booklets and the appropriate tax returns that certain employees may be liable for the penalty imposed by such section 6672, and“(B) the development of a special information packet.“(2)Development of explanatory materials.—The Secretary shall develop materials explaining the circumstances under which board members of tax-exempt organizations (including voluntary and honorary members) may be subject to penalty under section 6672 of such Code. Such materials shall be made available to tax-exempt organizations.“(3)IRS instructions.—The Secretary shall clarify the instructions to Internal Revenue Service employees on the application of the penalty under section 6672 of such Code with regard to voluntary members of boards of trustees or directors of tax-exempt organizations.”

Notes of Decisions

Cited in 1,346 cases (84 in the last 5 years), 1956–2026 · leading case: Gail McClendon v. United States, 892 F.3d 775 (5th Cir. 2018).

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Gail McClendon v. United States, 892 F.3d 775 (5th Cir. 2018). · cites it 14× “She also appeals the district court’s subsequent denial of McClendon’s motion requesting reconsideration of the summary judgment.”

Erwin v. United States, 591 F.3d 313 (4th Cir. 2010). · cites it 12× “2d 251 (1978) (interpreting 26 U.S.C. § 6672 (2006)). To that end, § 6672(a) of the Code provides that "[a]ny person required to collect, truthfully account for, and pay over any tax .”

Lostocco v. D'Eramo, 518 S.E.2d 690 (Ga. Ct. App. 1999). · cites it 44× “The trial court refused to resolve such issue of construction and instead resolved the dispute under federal public policy that rendered the indemnity agreement void.”

United States v. Sotelo, 436 U.S. 268 (1978). · cites it 10× “Respondents were alleged to be personally liable for these taxes under Internal Revenue Code § 6672, 26 U. S. C. § 6672 , as corporate officers who had a duty "to collect, truthfully account for, and pay over" the taxes and who had "willfully fail[ed]" to make the requisite…”

Linda Romano-Murphy v. Comm'r of IRS, 816 F.3d 707 (11th Cir. 2016). · cites it 6× “The first one, which appears to be a matter of first impression, is whether the existing statutory and regulatory framework entitles a taxpayer to a pre-assessment determination of her liability'by the IRS under 26 U.S.C. § 6672 if she files a timely protest.”

Slodov v. United States, 436 U.S. 238 (1978). · cites it 4× “After petitioner assumed control, the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees' wages, rent, suppliers, and other creditors, and to meet other day-to-day expenses incurred in operating the businesses. The question to…”

Ollie B. Hadley, Plaintiff-Counterclaim-Defendant-Appellant v. United States of Am., Defendant-Counterclaimant-Appellee, 45 F.3d 1345 (9th Cir. 1995). · cites it 6× “Hadley was assessed a penalty in the amount of $218,032 for willful failure to pay delinquent withholding taxes under 26 U.S.C. § 6672 . The government filed a claim to reduce that assessment to judgment.”

Noffke v. United States, 129 Fed. Cl. 341 (Fed. Cl. 2016). · cites it 19× “Trial; Tax; 26 U.S.C. § 6672 ; Responsible Person; Willfulness.”

Donald R. Ferguson v. United States v. Richard Musal, Third Party Nicholas P. Miller, Third Party, 484 F.3d 1068 (3rd Cir. 2007). · cites it 4× “This ease arises from an assessment of trust fund recovery penalties pursuant to 26 U.S.C. § 6672 against Richard Musal and several other individuals involved in the operation of AccessAir, Inc.”

Ilko v. California State Bd. of Equalization (In Re Ilko), 651 F.3d 1049 (9th Cir. 2011). · cites it 7× “In that case, the Internal Revenue Service assessed the debtor a penalty under 26 U.S.C. § 6672 13 for failing to pay over withholding taxes he had collected in his capacity as an officer of a corporation.”

Angelo Fiataruolo, Angelo Veno v. United States, 8 F.3d 930 (2d Cir. 1993). · cites it 5× “The issue before the jury was whether under § 6672 of the Internal Revenue Code, 26 U.S.C. § 6672 (1988 & Supp. Ill 1991), Fiataruolo and Veno were persons responsible for the collection and payment of C & C Security’s withholding taxes, and if so, whether they “willfully”…”

Babcock v. United States, 807 F. Supp. 2d 904 (C.D. Cal. 2009). · cites it 7× “74, with respect to income taxes and Federal Insurance Contribution Act (“FICA”) taxes withheld from wages and salaries of Management employees during the third and fourth quarters of 2002, and the second quarter of 2003, respectively, pursuant to 26 U.S.C. § 6672 (“ § 6672”). 1…”

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— 26 U.S.C. § 6672(a) — 3 cases

Leeke v. United States, 737 F. Supp. 1013 (S.D. Ohio 1990).

United States v. Chene (In Re Chene), 236 B.R. 69 (M.D. Fla. 1999).

Glude v. Sterenbuch (4th Cir. 1998).

— 26 U.S.C. § 6672(d) — 1 case

United States v. Chene (In Re Chene), 236 B.R. 69 (M.D. Fla. 1999).

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