dissenting
The majority admits that requiring Mr. Wray to pay more than $368,812 in penalties might well be unjust but claims it is compelled to do so by court precedents giving the IRS “Draconian enforcement power.” Majority opinion at 943. In fact, no Supreme Court or Ninth Circuit precedent requires the conclusion that the majority embraces here — that “gross negligence” is sufficient to sustain a verdict under 26 U.S.C. § 6672, a provision that only penalizes someone who “willfully fails” to pay withholding taxes. Nor is such a conclusion required by a proper analysis of the various legal terms involved. In fact, it is the majority, not the Congress or prior courts, that arms the tax collector with Draconian enforcement power. Because I believe that the majority’s conclusion that “gross negligence” is the same as willful failure is contrary to law, and also unjust, I dissent.
In defending its decision to adopt a gross negligence standard, the majority states that gross negligence is not “mere” negligence. Majority opinion at 943. I would add that gross negligence is also not reckless disregard and is certainly not willful failure. While the meaning of the term “willful” varies somewhat from statute to statute, “willful” generally requires a degree of knowledge or intent. For purposes of interpreting tax statutes, the Court has repeatedly held that “willful” requires not only specific intent to do that which is prohibited by law, but also knowledge that one’s actions are prohibited by law. See Cheek v. United States, 498 U.S. 192, 196, 210, 111 S.Ct. 604, 607-08, 615, 112 L.Ed.2d 617 (1991) (“Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty.”); United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973) (describing “willfully” as connoting “a voluntary, intentional violation of a known legal duty”).
Needless to say, Cheek and Bishop are both criminal cases. I do not mean to imply that the term “willfully” in a civil statute must be defined synonymously with the term “willfully” in a criminal statute. I do mean to assert, however, that just as the term “willfully” places an extra burden on the government in obtaining a conviction under a criminal tax statute, so the term “willfully” places an extra burden on the government in civil tax litigation.1 The same policy concern *946that has led the Court to require a heightened scienter requirement in criminal tax cases — a fear that innocent taxpayers might otherwise run afoul of the tax code’s myriad requirements — also operates in civil tax cases. Moreover, 26 U.S.C. § 6672 is not a typical civil statute; it is punitive in nature; it penalizes corporate officers by imposing personal tax liability on the officers for unpaid corporate taxes. As this court said recently, “§ 6672 liability ... operates as a penalty by creating an obligation, separate and distinct from the underlying tax obligation, that would not exist unless the taxpayers had been responsible for a ‘willful’ violation of law.” Duncan v. Commissioner of Internal Revenue Service, 68 F.3d 315, 318.
As a matter of elemental fairness, if not constitutionality, liability under § 6672 rests on showing a willful failure to pay corporate withholding taxes. Our court has long recognized the need to protect corporate officers who are merely careless or negligent from being unjustly saddled with civil penalties for their companies’ failure to pay its withholding taxes. For more than 30 years it has been the law in this circuit that a violation of 26 U.S.C. § 6672 is demonstrated by a “voluntary, conscious, and intentional act to prefer other creditors over the United States.” Bloom v. United States, 272 F.2d 215, 223 (9th Cir.1959); accord Rykoff v. United States, 40 F.3d 305, 307 (9th Cir.1994).
Gross negligence, by contrast, does not require “a voluntary, conscious, and intentional act.” As defined by the Seventh Circuit and as endorsed by today’s majority, a person is grossly negligent, and so liable under § 6672, even if his failure to ensure that the company paid its taxes was the result of neglect or carelessness.2 The Seventh Circuit said:
Concretely, we hold that the “responsible person” is liable if he (1) clearly ought to have known that (2) there was a grave risk that withholding taxes were not being paid and if (3) he was in a position to find out for certain very easily.
Conspicuously absent is a requirement for actual knowledge or intent.
As this case demonstrates, the distinction between willful failure and gross negligence is an important one. Under a gross negligence or ought-to-know standard, Mr. Wray might well be liable even though he is paralyzed from the neck down and was confined to his apartment during the period when the taxes were not paid, even though he had entrusted day-to-day management of his company to a long-time aide, and even though that aide never told him that the withholding taxes were not being paid. Under a willful failure to pay standard, however, the verdict that the majority bemoans could not be sustained, because there is no evidence that Mr. Wray knew that the taxes were not being paid, let alone that he intended not to pay them.
It is true that this circuit, like several others, has held that in some circumstances “reckless disregard” may suffice to prove a violation of 26 U.S.C. § 6672. See Teel v. United States, 529 F.2d 903, 905 (9th Cir.1976); Sorenson v. United States, 521 F.2d 325, 329 (9th Cir.1975). Reckless disregard, however, ordinarily requires intentional action, while negligence, even gross negligence, by definition does not. The model penal code says: “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk ...” American Law Institution, Model Penal Code and Commentaries, § 2.02 (emphasis added). While Teel and Sorenson permit use of a reckless disregard standard, at least in some circumstances, to establish liability under § 6672, neither case supports elimination of the requirement of an intentional act as a prerequisite for finding liability under § 6672.
Moreover, neither case creates a general exception to the requirement for some de*947gree of actual knowledge. Sorenson, the earlier of the two cases, involved a defendant whose ignorance was “self-imposed” or “preferred.” 521 F.2d at 329. It was against that backdrop that this court said that acting “with a reckless disregard for obvious risks” could constitute willfulness. Id. That standard, the functional equivalent of a Jewell or conscious avoidance instruction in criminal cases, was designed to ensure that willful ignorance could not serve as a defense to a § 6672 claim. Teel relied on Sorenson and Kalb v. United States, 505 F.2d 506 (2d Cir.1974), a case in which the Second Circuit said “willful conduct may also indicate a reckless disregard for obvious or known risks.” 505 F.2d at 511 (internal citation and quotation omitted).3 Thus both Sorenson and Teel are about willful ignorance. Neither case holds that acting with reckless disregard of an unknown risk — when the defendant has not willfully closed his eyes to that risk— suffices to establish a violation of § 6672.4
In sum, the majority significantly lowers the standard for imposing liability under § 6672 by eliminating two prerequisites for finding a willful failure to pay over withholding taxes. First, by approving the use of “gross negligence” the majority has silently dropped the critical requirement of an intentional action. Second, by replacing the phrase “known or obvious risk” with the term “grave risk” the majority has substantially relaxed the rule regarding knowledge. Majority opinion at 943. The phrase “known or obvious risk” contains an inherent limitation and is designed to address a particular problem — willful ignorance. The term “grave risk,” by contrast, contains no such limitation and so expands liability under § 6672 substantially. By replacing the term “known or obvious” with the word “grave” the majority opinion replaces (1) a standard that requires actual knowledge or willful ignorance with (2) an ought-to-know standard. The result of this change plus the elimination of the intent criterion is to reduce significantly the showing required to establish a violation of § 6672.
A look at the court’s precedents shows as much. It is clear that in civil statutes reckless disregard is generally not the same as gross negligence. In In re Northern Dist. of Cal., Dalkon Shield, Etc., 693 F.2d 847 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983), for instance, this court made it clear that reckless disregard is different from gross negligence and also that reckless disregard requires a higher degree of culpability than gross negligence. The court said, “Punitive damage standards can range from gross negligence to reckless disregard to various levels of willfullness and wantonness.” Id. at 850. See also Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1534 (9th Cir.1995) (holding that “conduct demonstrating gross negligence or reckless disregard of plaintiffs’ civil rights ... [is] actionable under § 1983”) (internal citations and quotations omitted) (emphasis added); Hammond v. County of Madera, 859 F.2d 797, 803 (9th Cir.1988) (same); United Medical Laboratories v. Columbia Broadcasting Sys., 404 F.2d 706, 711 (9th Cir.1968), cert. denied, 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969) (explaining that courts have disagreed in the context of defamation case about “whether there should be gradations in the standard for defeasance of the immunity (in effect negligence, gross negligence and reckless disregard, respectively) to *948enable the falsity occurring in a publication to be dealt with on varying responsibility as to the type of situation involved”).
The majority does not claim that reckless disregard and gross negligence are synonymous. Nor does it deny that gross negligence involves less culpability than reckless disregard. Instead, it simply adopts the Seventh Circuit’s view that gross negligence is sufficient to justify the imposition of liability without addressing the difference in the standards. In the pivotal paragraph of its opinion, the majority quotes the Seventh Circuit approvingly as that court holds, in lawyerly language, that gross negligence is all that is required to establish willful failure to pay withholding taxes:
In Wright, the Seventh Circuit said, “we think gross negligence is enough to establish reckless disregard.” Id. The court reasoned that “if a high degree of recklessness were required the purpose of the statute would be thwarted, just be compartmentalizing responsibilities within a business (however small) and adopting a ‘hear no evil — see no evil’ policy ...” Wright, 809 F.2d at 427. Majority opinion at 943.
The question, however, is whether gross negligence is sufficient to establish willful failure, not whether it suffices to prove reckless disregard. The statute passed by Congress only penalizes willful failure to pay withholding taxes. Such language, adopted to protect taxpayers, requires a showing of an intentional and knowing violation to trigger the penalty provisions of § 6672, or at the very least conscious avoidance. In any event, it should be beyond dispute that willful failure sets forth a higher standard of culpability than gross negligence. Whether the Seventh Circuit or the majority here believes that gross negligence should be enough is irrelevant. The language Congress chose clearly imposes a more rigorous standard.
The step the majority takes today toward evisceration of the willful failure requirement may seem to be of slight consequence. The lines between gross negligence and reckless disregard or gross negligence and willful failure are often far from clear. Juries may have practical difficulty in making such fine, legalistic distinctions. In some cases, the facts may lie in the margins and a reasonable jury could end up placing the conduct on either side of the line. Nevertheless, preserving and applying such distinctions is fundamental to the successful operation of our legal system. We draw similar fines in tort law, criminal law and in other fields as well. For example, in our own application of standards of review, we are required to distinguish between error, clear error, and plain error. The fact is that there is a distinction between gross negligence and willful failure, and the latter term requires a showing of greater culpability. The majority simply ignores that elementary principle and the consequences of its own decision.
In a feat that defies logic, the majority responds to this dissent by saying: “Our decision is not that gross negligence is willfulness ...” Majority opinion at 945 n. 1. To reach that remarkable conclusion, the majority employs a traditional three-card-monte approach. It argues, apparently straight-facedly, that even though it holds that willfulness can be shown by reckless disregard, and that reckless disregard can be shown by gross negligence, nonetheless it is not saying that willfulness can be proved by showing gross negligence.
The majority’s explanation is that all it does here is define reckless disregard in terms of gross negligence. Then the majority goes on to say: This court previously decided that reckless disregard can constitute willfulness for purposes of the statute before us; it is not our fault that our holding that gross negligence can constitute reckless disregard means that a showing of gross negligence is now sufficient to prove willfulness. It then concludes, plaintively: all we are doing is defining terms. The consequences, no matter how contrary to law, are someone else’s problem.
The majority’s rhetorical gymnastics cannot obscure what it has done in this case. It has just held that Mr. Wray may be penalized under a statute that requires proof of wilfulness when the government has established only the existence of gross negligence. It cannot blame that decision, as it seeks to do, on a prior decision by this court, on *949Congress, or on “Draconian” powers possessed by the IRS. No one is responsible for the unfortunate and erroneous rule that this case establishes but the majority itself.
The panel’s holding cites no precedent for its rule, except for the equally misguided and unpersuasive decision by the Seventh Circuit. Fortunately, one does not even have to try to comprehend the new definitional logic the majority puts forth. All we need to know is that from time immemorial gross negligence and willfulness have constituted entirely different concepts — in tort law, criminal law, tax law, and any other field of law in which the two concepts are employed. See, e.g., W. Page Keeton et al., Prosser and Keeton on The Law of Torts 212 (5th Ed.1984 & 1988 Supp.) (“[Mjost courts consider that ‘gross negligence’ falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, not in kind”).
Willfulness has historically required more than negligence, gross or otherwise. Now, in this circuit at least for purposes of § 6672, that is no longer the case. Mirabile dicta! Negligence and willfulness are the same. Accordingly, I respectfully dissent.
. I would point out, as the Supreme Court notes in Slodov v. United States, 436 U.S. 238, 245, 98 *946S.Ct. 1778, 1784, 56 L.Ed.2d 251 (1978), "§ 7202 of the Code', which tracks the wording of § 6672, makes a violation punishable as a felony subject to a fine of $10,000 and imprisonment for five years."
. Eight years after the Seventh Circuit issued its opinion, only two other circuit courts have chosen to follow the Seventh Circuit's lead. See United States v. Cartigan, 31 F.3d 130, 134 (3rd Cir.1994); Thomsen v. United States, 887 F.2d 12, 18 (1st Cir.1989).
. Teel said that “nonreckless ignorance” of the failure to pay over withholding taxes constitutes an adequate defense under 26 U.S.C. § 6672, but did not define "nonreckless ignorance.” 529 F.2d at 905. In any case, that part of the court’s discussion is dicta because the court affirmed the verdict against Teel on the basis of his failure to pay over withholding taxes during a period in which he knew the taxes were owing and unpaid. Id. at 905-06.
. See also Malloy v. U.S., 17 F.3d 329, 332 (11th Cir.1994) ("The willfulness requirement is satisfied if the responsible person acts with a reckless disregard of a known or obvious risk that the trust funds may not be remitted to the Government, such as by failing to investigate or to correct mismanagement after being notified that withholding taxes have not been duly admitted”) (emphasis in the original), citing Mazo v. United States, 591 F.2d 1151, 1154 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979); Wood v. United States, 808 F.2d 411, 415 (5th Cir.1987) ("A responsible person also acts willfully by proceeding with a reckless disregard of a known or obvious risk that trust funds may not be remitted to the government”) (internal citations and quotations omitted).