CHAPTER TWO - OFFENSE CONDUCT
PART T - OFFENSES INVOLVING TAXATION
1.INCOME TAXES, EMPLOYMENT TAXES, ESTATE TAXES, GIFT TAXES, AND EXCISE TAXES (OTHER THAN ALCOHOL, TOBACCO, AND CUSTOMS TAXES)
§2T1.6. Failing to Collect or Truthfully Account for and Pay Over Tax
(a)Base Offense Level: Level from §2T4.1 (Tax Table) corresponding to the tax not collected or accounted for and paid over.
(1)Where the offense involved embezzlement by withholding tax from an employee's earnings and willfully failing to account to the employee for it, apply §2B1.1 (Theft, Property Destruction, and Fraud) if the resulting offense level is greater than that determined above.
Statutory Provision: 26 U.S.C. § 7202.
1.In the event that the employer not only failed to account to the Internal Revenue Service and pay over the tax, but also collected the tax from employees and did not account to them for it, it is both tax evasion and a form of embezzlement. Subsection (b)(1) addresses such cases.
Background. The offense is a felony that is infrequently prosecuted. The failure to collect or truthfully account for the tax must be willful, as must the failure to pay. Where no effort is made to defraud the employee, the offense is a form of tax evasion, and is treated as such in the guidelines.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 232); November 1, 1991 (see Appendix C, amendment 409); November 1, 2001 (see Appendix C, amendment 617).