Finley v. United States

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 20 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

EDWARD J. FINLEY,

Plaintiff and Counterclaim
Defendant,
v.
No. 95-3108
UNITED STATES OF AMERICA,

Defendant and Counterclaim
Plaintiff-Appellee,

FLOYD JOHNSON,

Counterclaim Defendant-
Appellant.

ON REHEARING EN BANC

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 91-1361-MLB)

Ernest J. Brown (Loretta C. Argrett, Charles E. Brookhart, and Roger E. Cole,
Department of Justice, and Of Counsel, Randall K. Rathbun, Office of the United
States Attorney, with him on the briefs), Department of Justice, Washington,
D.C., for Defendant and Counterclaim Plaintiff-Appellee.

Joseph E. McKinney (Arthur E. Palmer with him on the briefs) of Goodell,
Stratton, Edmonds & Palmer, L.L.P., Topeka, Kansas, for Counterclaim
Defendant-Appellant.
Before SEYMOUR, PORFILIO, ANDERSON, TACHA, BALDOCK,
BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO and MURPHY,
Circuit Judges.

BRORBY, Circuit Judge.

We reheard this appeal en banc to address the following question:

Under 26 U.S.C. § 6672, if a responsible person fails to investigate
or correct mismanagement after learning of a withholding tax
delinquency, must his conduct be found reckless and therefore willful
as a matter of law, or, in the alternative, should the jury, in the view
of all relevant evidence, be entitled to find the responsible person did
not act recklessly?

We hold "willful" conduct as defined in the context of 26 U.S.C. § 6672 (1994 &

Supp. 1977) can be negated by a showing the responsible person had reasonable

cause for failing to pay withholding taxes held in trust for the government. Such

conclusion appropriately avoids a "strict liability" interpretation of § 6672 and

preserves a role for the jury, as fact finder, to determine whether, in the view of

all relevant evidence, a responsible person "willfully" failed to pay employee

withholding taxes.

-2-
 OPERATIVE FACTS AND PRIOR DISPOSITION 1

Appellant, Mr. Floyd Johnson, was president and a member of the board of

directors of Halsey-Tevis, Inc. ("Halsey-Tevis"), a struggling corporation engaged

in the interior construction business. In late October 1988, Mr. Johnson learned

from board member and secretary-treasurer, Mr. Edward Finley, that Halsey-Tevis

was delinquent in paying federal social security and income taxes withheld from

employee wages during the third and fourth quarters of 1988. Upon learning of

the delinquency, Mr. Johnson told Mr. Finley, "[t]hey have to be paid." Mr.

Finley responded that partial payments were coming in; he gave no indication he

would not comply with Mr. Johnson's directive to pay the taxes. Mr. Johnson

made no further inquiry and took no further action regarding the unpaid

withholding taxes even though he had authority to sign company checks and, at

that time, Halsey-Tevis had access to funds that could have been used to make at

least partial payment to the government.

The full extent of Halsey-Tevis' financial woes became evident a short time

later when Mr. Finley completed the company's quarterly financial statement for

1
We present here only those facts relevant to the en banc question. A
complete recitation of facts is found in Finley v. United States, 82 F.3d 966, 968-
70 (10th Cir. 1996).

-3-
the period ending September 30, 1988. On November 7, 1988, Mr. Finley

contacted First National Bank in Wichita -- the bank at which Halsey-Tevis

maintained its general checking and payroll accounts and that provided Halsey-

Tevis a line of credit from which the company could borrow operating funds

based on its accounts receivable -- to explain the newly completed quarterly

statement. After reviewing the statement, the bank called a meeting of the

Halsey-Tevis officers for the next day. On the morning of November 8, Mr.

Finley, Mr. Johnson and another Halsey-Tevis officer, Mr. Brian McCann, met to

discuss the company's financial problems prior to meeting with the bankers. It

was at this meeting Mr. Johnson learned Mr. Finley had not remedied the

withholding tax delinquency. Prior to meeting with the bankers, Mr. Johnson, Mr.

Finley and Mr. McCann went to the local Small Business Administration office to

try and secure a loan that would allow them to pay the withholding taxes. The

Small Business Administration told the Halsey-Tevis officers they would have to

go through a bank. Later that same day, First National Bank froze Halsey-Tevis'

accounts. Thereafter, Halsey-Tevis could not pay any bills without the bank's

prior approval.

On November 14, 1988, Mr. Johnson and Mr. Finley delivered about

$105,000 in collections to the bank and asked bank officials to apply the deposit

-4-
to the withholding tax balance. The bank refused and instead applied the deposit

to Halsey-Tevis' loan indebtedness. Bank officials told Mr. Johnson and Mr.

Finley they would "take care of the taxes later."

In July 1991, the Internal Revenue Service notified Mr. Johnson he was

being assessed a $144,876.48 penalty under 26 U.S.C. § 6672. The government's

claim against Mr. Johnson proceeded to a jury trial in 1994 on the sole issue of

whether he acted willfully within the context of § 6672. When asked whether Mr.

Johnson had "shown, by a preponderance of the evidence that he did not willfully

fail to pay over to the United States any of the taxes withheld from the wages of

Halsey-Tevis, Inc.'s employees," the jury responded "YES." This verdict was not

allowed to stand, however. The district court granted the government's post-trial

motion for a judgment as a matter of law under Fed. R. Civ. P. 50(b), concluding

"a reasonable jury could not have found that [Mr.] Johnson met his burden of

proof." Applying Denbo v. United States, 988 F.2d 1029 (10th Cir. 1993), a panel

of this court affirmed the district court's decision to set aside the jury verdict.

Finley, 82 F.3d at 972-74.

-5-
WILLFULNESS UNDER 26 U.S.C. § 6672: A Question of Fact or A Matter
of Law?

The Internal Revenue Code requires employers to withhold federal social

security and income taxes from their employees' wages and then pay those taxes

over to the government. 26 U.S.C. §§ 3102(a), 3402(a), 3403 (1994 & Supp.

1997). The funds withheld from employee wages do not belong to the

employer/corporation; they are funds held by the employer in trust for the

government. 26 U.S.C. § 7501(a) (1994). A corporate officer or employee who

fails to remit such taxes to the government may be personally liable for penalties

pursuant to 26 U.S.C. § 6672(a), which provides:

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.

(Emphasis added.)

It is well-settled § 6672 liability does not depend on the presence of a bad

motive or the specific intent to defraud the government -- elements associated

with criminal liability. Burden v. United States, 486 F.2d 302, 304 (10th Cir.

1973), cert. denied, 416 U.S. 904 (1974); Bowen v. United States, 836 F.2d 965,

967-68 (5th Cir. 1988); Bloom v. United States, 272 F.2d 215, 223-24 (9th Cir.

-6-
1959), cert. denied, 363 U.S. 803 (1960). Rather "willfulness" for purposes of

imposing civil liability under § 6672 is

a "voluntary, conscious and intentional decision to prefer other
creditors over the Government...." Although negligence does not
give rise to section 6672 liability, "' the willfulness requirement is ...
met if the responsible officer shows a "reckless disregard of a known
or obvious risk that trust funds may not be remitted to the
government...."'" A responsible person's failure to investigate or to
correct mismanagement after being notified that withholding taxes
have not been paid satisfies the section 6672 willfulness requirement.

Denbo, 988 F.2d at 1033 (citations omitted). The question posed in this en banc

appeal is whether evidence satisfying the Denbo definition alone is sufficient to

impose liability under § 6672, as a matter of law, or whether there remains some

role for a jury to determine, in view of all relevant evidence, that a responsible

person did not act willfully and therefore cannot be held liable for a corporation's

unpaid withholding taxes.

The government responds to this question by citing us to case law from this

circuit and others that holds a responsible person who has knowledge of unpaid

taxes and thereafter personally pays or directs the payment of claims of other

creditors, or fails to take appropriate steps to ensure the taxes are paid (e.g., fails

to investigate the matter or correct mismanagement), is willful as a matter of law.

According to the government, to stray from this precedent "would largely

emasculate Section 6672 and provide a blueprint for the avoidance of personal

-7-
liability for those persons responsible for the failure to pay over trust fund taxes

due the United States."

We are fully aware of the precedent whereby courts have seized on the

notion that certain factual paradigms establish willfulness as a matter of law, even

though the facts do not involve an intentional failure to pay over withholding

taxes to the government. A responsible person's failure to investigate the problem

or correct mismanagement after receiving actual notice of a withholding tax

delinquency represents the factual paradigm applied in this case. Finley, 82 F.3d

at 973; see also, Denbo, 988 F.2d at 1033-34. Reliance upon the representation

of someone in control of company finances that withholding taxes will be paid

after learning that such taxes are delinquent, and when it is known that the person

making the statements is unreliable and has inadequately performed his financial

responsibilities in the past, represents another paradigm used to impose liability

under § 6672 as a matter of law. The payment of other bills with knowledge that

the business is in financial trouble, but failing to reasonably inquire whether

money would be available to pay withholding taxes when they become due is yet

another paradigm courts have applied. See Thomsen v. United States, 887 F.2d

12, 18-19 (1st Cir. 1989) (summarizing the "distinctive fact patterns from which

to infer a reckless disregard sufficient to demonstrate willfulness as a matter of

-8-
law under section 6672" (quoting I.R.S. v. Blais, 612 F. Supp. 700, 710 (D. Mass.

1985))). These paradigms obviously create an expansive web of liability "as a

matter of law" and significantly ease the government's burden under Fed. R. Civ.

P. 50(b). Thus, it is easy to understand why the government relies so heavily on

existing precedent. The en banc question, however, reflects our concern whether

this web of case law leaves any role for the jury to determine willfulness. The

government's mere reliance on existing precedent does not answer that question.

Mr. Johnson attempts to escape the web by arguing the relevant facts in his

case are distinct from (not as egregious as) the relevant facts in cases where

courts have applied the "failure to investigate or correct mismanagement"

paradigm. In the alternative, Mr. Johnson urges us to reject a rigid application of

that paradigm, as such an application would announce "a standard of virtual strict

liability" contrary to the plain language of the statute. Using either approach to

back away from the "failure to investigate or correct mismanagement" paradigm,

Mr. Johnson then asserts there is substantial evidence to support the jury's verdict

he did not willfully fail to pay Halsey-Tevis' federal withholding taxes.

We agree with Mr. Johnson that certain factual distinctions exist between

existing precedent and this case. However, the factual paradigms identified as

-9-
standards for determining willfulness as a matter of law are quite broad. The vast

majority of cases leave no room for a taxpayer to meaningfully distinguish his

case before a jury based on the relative degree of willfulness or the presence of

extenuating circumstances.

Indeed, in defining those circumstances that constitute willfulness as a

matter of law, many of our sister circuits have considered and expressly rejected

the possibility that a responsible person's breach of duty to pay withholding taxes

might be excused by a "reasonable cause" or "justifiable excuse." 2 See, e.g.,

Harrington v. United States, 504 F.2d 1306, 1316 (1st Cir. 1974); Pacific Natal

Ins. Co. v. United States, 422 F.2d 26, 33 & n.19 (9th Cir.), cert. denied, 398 U.S.

937 (1970); Monday v. United States, 421 F.2d 1210, 1216 (7th Cir.), cert.

denied, 400 U.S. 821 (1970); c.f. Bowen, 836 F.2d at 968 (although the Fifth

Circuit has recognized conceptually that a reasonable cause may negate a finding

of willfulness, "no taxpayer has yet carried that pail up the hill."). The main

2
The Tenth Circuit has never squarely addressed this issue. A three-judge
panel in Muck v. United States, 3 F.3d 1378, 1382 (10th Cir. 1993), stated, in
dicta, a reasonable cause "defense to liability under § 6672 ... appears inconsistent
with this circuit's insistence that (bad) motive is not a pertinent inquiry under
§ 6672." Ultimately, however, the panel determined "[e]ven if [a reasonable
cause] exception were recognized by this circuit, it would not apply" under the
circumstances in Muck. Id. at 1382.

-10-
reasons given for rejecting the possibility that willfulness can be negated by a

showing of reasonable cause are: (1) a liability standard which does not

incorporate reasonable cause will better further the primary purpose of the statute

to protect government revenue, (2) defining willfully to include a lack of

reasonable cause may inappropriately inject the notions of bad motive or evil

purpose applicable to the criminal definition of willful into the civil definition of

willful, and (3) the consideration of reasonable cause may invite consideration of

irrelevant elements such as a business' financial condition or creditors' demands.

Harrington, 504 F.2d at 1316; Monday, 421 F.2d at 1216. At least one court also

has noted "that while 'reasonable cause' is an element of other sections of the

[internal revenue code], it is not made so in Section 6672." Harrington, 504 F.2d

at 1316.

We appreciate the government's reliance on 26 U.S.C. § 6672 to collect

withholding tax revenues from responsible individuals after a business entity

becomes insolvent. And we understand the corresponding importance of

construing § 6672 in a manner to protect government revenue. See Slodov v.

United States, 436 U.S. 238, 243-45 (1978); Bowlen v. United States, 956 F.2d

723, 726 (7th Cir. 1992). Accordingly, we agree with the notions that "willful"

conduct under § 6672 is not the same as "willful" conduct in the criminal context,

-11-
and that certain facts are irrelevant to the determination of whether a responsible

person willfully failed to pay withholding taxes. Nevertheless, like Mr. Johnson,

we are troubled by the possibility the courts have transformed 26 U.S.C. § 6672

into a strict liability statute, outside the jury's realm, by (1) broadly defining the

most likely fact scenarios leading to a failure to pay withholding taxes as

"willful" conduct as a matter of law, and (2) closing the door on any opportunity

for a responsible person to distinguish his case from those factual scenarios, or

paradigms (i.e., demonstrate reasonable cause for failure to pay). As

"'[m]aintenance of the jury as a fact-finding body is of such importance and

occupies so firm a place in our history and jurisprudence,'" it is our duty to

carefully scrutinize any apparent curtailment of that function. 3 Beacon Theatres,

3
We note a number of courts have expressed discomfort with their
application of binding § 6672 precedent. See Finley, 82 F.3d at 974 ("We are not
oblivious to what one court has called 'the Draconian enforcement power which
the IRS has under the precedent,' but it is our job to apply the law as it is.")
(quoting Phillips v. I.R.S., 73 F.3d 939, 943 (9th Cir. 1996)); Buffalow v. United
States, 109 F.3d 570, 575 (9th Cir. 1997) (in upholding summary judgment
against taxpayer who, in an attempt to rescue his company, paid other creditors
before he paid delinquent withholding taxes, court commented "we must once
again embrace the result of a 'responsible person' case with velleity"); Williams v.
United States, 931 F.2d 805, 811 (11th Cir. 1991) ("The seeds of common sense
compassion sown by the jury find scant hospitality on this rock hard legal
landscape."); Arnett v. United States, 927 F. Supp. 1464, 1471-72 (D. Kan. 1996)
(constrained by Finley and Denbo, court was "reluctantly compelled" to conclude
taxpayer willfully failed to pay over federal employment taxes); Fowler v. United
States, 820 F. Supp. 1390, 1395 n.2 (D. Wyo. 1993) ("Section 6672 is not a strict
liability statute, although after reviewing the case law, one might believe
otherwise."). None, however, has taken the step we take today to scrutinize the

-12-
Inc. v. Westover, 359 U.S. 500, 501 (1959) (quoting Dimick v. Schiedt, 293 U.S.

474, 486 (1935)).

Our scrutiny begins with the plain statutory language of 26 U.S.C. § 6672.

"Absent a clearly expressed legislative intention to the contrary, that language

must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v.

GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). If possible, we also must construe

§ 6672 in such a manner that every word has some operative effect. United States

v. Nordic Village, Inc., 503 U.S. 30, 36 (1992). Our focus in this case is on the

word "willfully," which Congress expressly included as an element of liability

under § 6672.

Although the precise definition of "willful" varies somewhat depending on

its context, Screws v. United States, 325 U.S. 91, 101 (1945), one thing is certain:

in any context, the word "willfully" denotes a "conscious motion of the will,"

Black's Law Dictionary 1434 (5th ed. 1979), or "mental faculty" giving rise to a

particular course of action. Webster's II New Riverside University Dictionary

(1988). In this context, then, an inquiry whether a responsible person "willfully"

impact of existing precedent on the jury's role in determining willfulness as
contemplated by the plain language of § 6672.

-13-
failed to pay withholding taxes is "'necessarily directed to the state of the

responsible person's mind,'" Thibodeau v. United States, 828 F.2d 1499, 1505

(11th Cir. 1987) (quoting Mazo v. United States, 591 F.2d 1151, 1157 (5th Cir.),

cert. denied, 444 U.S. 842 (1979)), and therefore is properly characterized as an

issue of scienter -- "the quintessential jury issue." Turpin v. United States, 970

F.2d 1344, 1350 (4th Cir. 1992) (court upheld jury verdict in favor of taxpayer,

concluding sufficient evidence existed for jury reasonably to conclude taxpayer

neither knew of nor recklessly disregarded withholding tax delinquency). To

deprive a jury of the opportunity to fully evaluate the conscious motions

supporting a responsible person's conduct would be to deprive the word

"willfully" of its operative effect. Thus, even in the absence of an express

reasonable cause element, Congress must have contemplated that in most cases a

jury would be permitted to determine whether a responsible person willfully failed

to pay withholding taxes based on the totality of circumstances and evidence. 4

Our review of existing § 6672 case law leads us to conclude courts too

often have extended § 6672 liability beyond this plain statutory language and

4
If, in fact, Congress desires § 6672 to impose strict liability on
responsible persons, then Congress is the appropriate branch to establish such
policy, not the courts.

-14-
impermissibly encroached upon the role of the jury as fact-finder by utilizing

broad factual paradigms to impose liability as a matter of law notwithstanding the

possibility that a taxpayer presented convincing evidence of extenuating

circumstances relevant to his state of mind. We view this case as an opportunity

to rectify that problem in the Tenth Circuit, and have given much thought as to

how to accomplish the dual objectives of protecting government revenue and

preserving the fact-finding function of the jury as required by the plain language

of § 6672.

We could, as Mr. Johnson suggests, reject the rigid application of the

"failure to investigate or correct mismanagement" paradigm to impose liability as

a matter of law. Alternatively, we could adopt the concurring Judges' approach

and characterize the issue as whether there is substantial evidence to support the

jury verdict. See also Turpin, 970 F.2d at 1347. Either approach could be used to

salvage the jury verdict in Mr. Johnson's favor. However, neither can be fully

squared with precedent imposing liability as a matter of law, and thereby taking

the issue of liability away from the jury, whenever the undisputed facts establish

(1) a responsible person, (2) had knowledge of a withholding tax delinquency, and

(3) failed to personally fulfill his duty to ensure payment of the delinquent taxes

with any available, unencumbered funds prior to paying any other creditors. See

-15-
Denbo, 988 F.2d at 1033-34; Mazo, 591 F.2d at 1156. We believe the better way

to protect government revenue and preserve a role for the jury in this case and

others without undermining existing precedent is to continue to apply the

established paradigms to identify willful conduct as a matter of law, yet expressly

recognize a reasonable cause exception to the application of those paradigms. In

this way the courts can continue to hold responsible persons' feet to the fire, yet

provide those same individuals a delimited opportunity to demonstrate to a jury

there was reasonable cause sufficient to excuse the failure to pay the withholding

taxes they held in trust for the government.

Having recognized the reasonable cause exception, we must now take the

further step of defining what elements are necessary to demonstrate "reasonable

cause," as the jury's role properly is limited to determining whether those

elements are present in a given case. See, e.g., Rykoff v. United States, 40 F.3d

305, 307-08 (9th Cir. 1994); Hatfried, Inc. v. Commissioner of Internal Revenue,

162 F.2d 628, 635 (3d Cir. 1947).

We begin our analysis of what constitutes reasonable cause sufficient to

avoid withholding tax liability under § 6672 by distinguishing this situation from

those cases, statutes and regulations which address what constitutes reasonable

-16-
cause sufficient to avoid liability for income tax penalties. Unlike the penalties

assessed for failure to file income tax returns, penalties imposed by § 6672 are

not civil fines assessed in addition to the amount of the delinquent tax. Section

6672 is simply a means to insure payment to the government of the withholding

taxes owed. Thus, § 6672 penalties reflect only that amount of tax already

collected or deducted by an employer and for which the employees have already

received credit in their individual income tax returns. Since § 6672 does not raise

a concern regarding the protection of a taxpayer from harsh, additional penalties

imposed for purposes of punishment and deterrence, it would be inappropriate to

adopt a lenient reasonable cause standard like that applied to income tax

penalties, i.e. ordinary business care and prudence. See Eastern Inv. Corp. v.

United States, 49 F.3d 651, 655 (10th Cir. 1995); Sanders v. Commissioner of

Internal Revenue Serv., 225 F.2d 629, 636-37 (10th Cir. 1955), cert. denied, 350

U.S. 967 (1956). Instead, we must narrowly construe the "reasonable cause"

exception to § 6672 liability in order to (1) further the basic purpose of § 6672 to

protect government revenue, (2) discourage corporations from self-executing

government loans using the tax monies they hold in trust, and (3) avoid making

the government "an unwilling partner in a floundering business." See Collins v.

United States, 848 F.2d 740, 741-42 (6th Cir. 1988); Thibodeau, 828 F.2d at

1506; Newsome v. United States, 431 F.2d 742, 747 (5th Cir. 1970).

-17-
 We therefore conclude reasonable cause sufficient to excuse a responsible

person's failure to pay withholding taxes should be limited to those circumstances

where (1) the taxpayer has made reasonable efforts to protect the trust funds, but

(2) those efforts have been frustrated by circumstances outside the taxpayer's

control. By so limiting the elements of reasonable cause in the § 6672 context we

avoid the temptation to inject notions of evil motive, bad faith or other improper

factors into the determination of willfulness, and maintain the ability to zealously

protect government revenue via the application of certain factual paradigms

widely-recognized and accepted as "willful conduct." Yet, consistent with the

plain language of § 6672, this approach preserves a role for the jury to determine

whether, based on all relevant evidence in a particular case, the responsible

taxpayer's conduct reflects the requisite scienter. 5

NEW TRIAL: Did Mr. Johnson Have Reasonable Cause?

The only issue tried to the jury was whether Mr. Johnson acted willfully in

failing to pay over Halsey-Tevis' delinquent withholding taxes to the federal

government. The jury was instructed (1) Mr. Johnson contended he did not

5
We note this result also is in line with the government's concession
during oral argument that § 6672 imposes an element of scienter, the evaluation
of which is dependent upon all the facts in a given case, including those
indicating a reasonable cause for the responsible person's failure to pay.

-18-
willfully fail to pay the taxes, (2) when Mr. Johnson learned the withholding taxes

had not been paid, he directed Mr. Finley to pay the taxes, and (3) when he

learned Mr. Finley had not done so, there were no unencumbered corporate funds

with which to pay the taxes. The jury was further instructed the United States

denied Mr. Johnson's contention and Mr. Johnson bore the burden of proof. The

parties defined "willfully," in relevant part, as

a voluntary, conscious and intentional decision to prefer other
creditors over the government. Willfulness is present whenever a
responsible person acts or fails to act consciously and voluntarily and
with knowledge or intent that as a result of his action or inaction
trust funds belonging to the government will not be paid over but
will be used for other purposes.

In addition, the jury was told

[t]o be willful, the payment to other creditors by means of
unencumbered funds must be done either (1) with knowledge that
trust funds had not been paid over, or; (2) with reckless disregard for
whether they had been paid. If a responsible person has knowledge
of circumstances which would give a person in his position reason to
believe that withholding taxes may not have been paid over because
of mismanagement or of problems in paying over withholding taxes,
his failure to investigate and determine if the funds have been paid
over is reckless disregard and constitutes a willful failure to pay over
these funds.
Having been so instructed, the jury then was asked to answer the following

interrogatory:

Has the plaintiff, Floyd Johnson, shown by a preponderance of the
evidence that he did not willfully fail to pay over to the United States
any of the taxes withheld from the wages of Halsey-Tevis, Inc.'s
employees. (Circle the appropriate answer.)

-19-
The jury circled "YES."

The instructions and verdict reveal the jury never was asked to determine

whether Mr. Johnson had reasonable cause sufficient to excuse his failure to pay

Halsey-Tevis' withholding taxes. Rather, it appears this case was tried and

instructed under the assumption this circuit would not recognize a reasonable

cause exception to conduct otherwise deemed "willful" under existing § 6672

precedent. Our decision today makes clear that assumption was incorrect.

The question remains, then, how to properly resolve this appeal. We can

uphold the government's judgment as a matter of law only if Mr. Johnson was

fully heard on the issue of willfulness and, construing the evidence and inferences

in Mr. Johnson's favor, we can find no legally sufficient evidentiary basis for a

reasonable jury to find his conduct was not willful. Mitchell v. Maynard, 80 F.3d

1433, 1438 (10th Cir. 1996); Fed. R. Civ. P. 50(a)(1). Applying the § 6672

analysis we embrace today, Mr. Johnson should have had an opportunity to prove,

and the jury should have determined, whether there was sufficient evidence to

establish Mr. Johnson had a reasonable cause for his failure to pay Halsey-Tevis'

withholding taxes. This did not occur. We can only speculate from the present

record as to why the jury found in Mr. Johnson's favor; there simply is no way to

discern how the jury would decide the issue of reasonable cause. Consequently,

-20-
we are not in a position to uphold the judgment as a matter of law. Neither can

we reinstate the jury verdict. Under these circumstances, the interests of justice

demand we grant a new trial. Neely v. Martin K. Eby Construction Co., 386 U.S.

317, 329 (1967) (court of appeals may order a new trial based on factors

encountered in its own review of the case); Derr v. Safeway Stores, Inc., 404 F.2d

634, 639-40 (10th Cir. 1968) (court of appeals may grant new trial if jury verdict

is not reinstated); c.f. Jackson State Bank v. King, 992 F.2d 256, 257-58 (10th Cir.

1993) (new trial required after state court announced a new rule of law on

certification and no way to discern from jury's answers to special interrogatories

how it would have decided the issue if properly instructed).

Accordingly, we REVERSE the district court's Rule 50(b) order,

VACATE the jury verdict and REMAND this case to the district court for further

proceedings consistent with this opinion.

-21-
No. 95-3108, Edward J. Finley v. United States of America.

KELLY, Circuit Judge, concurring in part and dissenting in part, with whom

SEYMOUR, Chief Judge, joins.

I concur with the court that the willfulness inquiry under I.R.C. § 6672 and

Treas. Reg. § 301.6672-1 requires consideration of relevant evidence pertaining to

intent, including whether a responsible person fails to investigate or correct

mismanagement after learning of nonpayment of trust fund taxes. In my view,

this case turns on whether sufficient evidence supports the jury’s verdict that Mr.

Johnson did not act willfully when the evidence is viewed in the light most

favorable to him. See Turpin v. United States, 970 F.2d 1344, 1347 (4th Cir.

1992). Because a jury is entitled to consider the nature, extent and timing of a

responsible person’s nonpayment in deciding willfulness, I would hold that

sufficient evidence supports the jury’s verdict and would remand the case to the

district court to vacate its judgment, reinstate the jury verdict, and enter judgment

in favor of Mr. Johnson. I would not reach the issue of whether a “reasonable

cause” exception applies, nor would I define its parameters.

The principles in our prior cases must be read in conjunction with the

procedural posture of the case, specifically, application of the law to undisputed

facts on summary judgment, Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.
1993) or affirming a judge or jury’s finding of willfulness while viewing the

evidence in the light most favorable to the result, Denbo v. United States, 988

F.2d 1029, 1033-34 (10th Cir. 1993) (jury verdict); Burden v. United States, 486

F.2d 302, 304 (10th Cir. 1973) (district court finding), cert. denied, 416 U.S. 904

(1974). Where we have reversed a district court’s finding of a lack of willfulness

in the § 6672 context, the responsible person knew the taxes were unpaid, yet

continued to operate and liquidate the business over a substantial period of time.

Bradshaw v. United States, 83 F.3d 1175, 1186 (10th Cir. 1995), cert. denied, 117

S. Ct. 296 (1996). In Bradshaw, we rejected a contention that allowing a bank

authority over disbursements vitiated willfulness. Id. at 1183-86.

Whether Mr. Johnson acted “willfully” under § 6672 is a factual matter. Id.

at 1182-83; Taylor v. I.R.S., 69 F.3d 411, 417 (10th Cir. 1995). One way to prove

willfulness is to show that a responsible person acted with reckless disregard of a

known or obvious risk that trust funds may not be paid over to the government.

Bradshaw, 83 F.3d at 1183; Denbo, 988 F.2d at 1033. Under this theory, we have

held that “[a] responsible person’s failure to investigate or to correct

mismanagement after being notified that withholding taxes have not been paid

satisfies the section 6672 willfulness requirement.” Bradshaw, 83 F.3d at 1183.

At the same time, negligence is insufficient to result in § 6672 liability.

Bradshaw, 83 F.3d at 1183; Denbo, 988 F.2d at 1033.

-2-
 The evidence in this case does not compel a finding of willfulness, i.e., that

Mr. Johnson knowingly preferred other creditors to the government with

unencumbered funds totaling $95,000. Mr. Johnson learned of the delinquent

trust fund taxes in late October 1988 from Mr. Finley, discussed sources of funds,

and then directed that they be paid. Other than the fact of the unpaid taxes, Mr.

Johnson had no reason to view Mr. Finley as unreliable; he was unaware of Mr.

Finley’s scheme to conceal unpaid trust fund taxes. See Finley v. United States,

82 F.3d 966, 969 (10th Cir. 1996). Even assuming that the unpaid taxes were

evidence of mismanagement, a reasonable jury could conclude that Mr. Johnson

took appropriate steps to correct it under the circumstances by discussing

available sources of funds and directing that the taxes be paid.

Not until November 8, 1988, did Mr. Johnson learn of the failure to correct

the problem. At this point, however, the company’s arrangement with the bank

underwent substantial change. The government does not argue that subsequent

cash receipts delivered to the bank pursuant to this arrangement (including

$105,000 that Mr. Johnson and Mr. Finley requested be applied to trust fund

taxes) constitute unencumbered funds that should have been applied to payment

of trust fund taxes. See United States v. Kim, 111 F.3d 1351, 1358-61 (7th Cir.

1997); Honey v. United States, 963 F.2d 1083, 1089-90 (8th Cir.), cert. denied,

-3-
506 U.S. 1028 (1992). Thus, at issue in this case are Mr. Johnson’s actions from

late October 1988 until November 8, 1988.

According to the government,

once a responsible officer becomes aware that trust fund taxes due the
United States have not been paid, it is incumbent upon such person to take
appropriate steps to ensure that the taxes are paid and that, if he fails to do
so, e.g., fails to investigate the matter or correct mismanagement, his
failure to act constitutes, as a matter of law, a reckless disregard of the
known risk that the taxes owed the Government might not be paid.

Aplee. Supp. Br. On Reh’g En Banc at 8. I agree that investigating the matter or

correcting mismanagement are exemplary but not exclusive and that the focus

must be on taking appropriate steps given the situation. Here, Mr. Johnson did

act. Whether a responsible person has taken appropriate steps, and consequently

not acted with scienter, cannot be dependent solely upon whether the investigation

or correction of mismanagement ensured that the taxes were paid; otherwise, there

would be strict liability in every nonpayment case. A much more reasonable

construction of the statute allows the jury to consider the facts and circumstances

surrounding the nonpayment, including (1) Mr. Johnson’s lack of sophistication,

(2) that Mr. Finley hid from him the company’s financial problems and led him to

believe the company was doing better than it actually was, (3) that Mr. Johnson

wanted the taxes paid and took steps to accomplish that goal, including (a)

delivery of $105,000 to the bank for that purpose, and (b) actual payment of

unencumbered funds, and (4) that the time period in which the government claims

-4-
Mr. Johnson’s conduct amounted to recklessness was no more than a couple of

weeks and possibly as short as one week. Though the statute is harsh, surely it

was not intended to replace a subjective evaluation of willfulness with a

formulaic objective standard. While any one of these factors might not be

sufficient to avoid a willfulness determination, the trier of fact should be allowed

to consider them and determine whether the nonpayment conduct was willful.

-5-