The Ultimate Guide to IRS Criminal Investigations — What Is a Willful Failure to Collect or Pay Over Tax?

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What Is a Willful Failure to Collect or Pay Over Tax?

Sam Brotman Sam Brotman, J.D.|Last updated May 2026

Quick Answer

Willful failure to collect or pay over tax under IRC §7202 has four elements: (1) duty to collect, account for, or pay over tax (typically payroll taxes); (2) willful failure to do so; (3) the amount was required to be withheld and paid; and (4) the defendant was a "responsible person." The short version is that §7202 is the criminal counterpart of the civil trust fund recovery penalty. In our experience, small business owners facing payroll problems often face both criminal §7202 exposure and civil TFRP assessment.1

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Four elements of willful failure to collect or pay over tax.

The Four §7202 Elements

DutyCollect/Pay Over
WillfulIntentional
RequiredWithheld Amount
ResponsiblePerson
§7202.
ElementMeaning2
DutyCollect / account / pay over
WillfulVoluntary intentional violation
Required AmountTrust fund portion
Responsible PersonControl over payment

Quick Reference

Jump to: duty, willful, required, or responsible.

1. Duty to Collect / Pay Over

Statutory duty for payroll / excise / certain other taxes.

If this is you: Employer with payroll. Duty to collect federal income tax and FICA from employee wages, match employer FICA, pay over timely.

Duty Strategy

  1. Identify applicable tax.
  2. Determine collection requirement.
  3. Evaluate accounting obligation.
  4. Assess pay-over timing.
  5. Document compliance / non-compliance.

2. Willfulness

Voluntary intentional violation of known duty.

If this is you: Knew about obligation. Failed despite knowing. Diverted funds to other uses. Willfulness demonstrated.

3. Required to Withhold / Pay

Trust fund portion (employee's share) critical.

If this is you: Trust fund = employee income tax withheld + employee FICA. Not employer's money. Holding in trust for IRS. Conversion = serious violation.

4. Responsible Person

Person with control over payment of taxes.

If this is you: Owner, officer, director, bookkeeper with signature authority. Anyone with effective control. Multiple responsible persons possible.

§7202 Document Lookup

§7202 docs.
DocumentPurpose
IRC §7202Criminal statute
Form 941Quarterly payroll return
IRC §6672Civil TFRP
Form 4180Responsible person interview
Bank signature cardsAuthority evidence

§7202 Statute

  • 6-year criminal statute.
  • Runs from failure to pay / collect.
  • Often pattern over multiple quarters.

§7202 Patterns

§7202 outcomes. Source: Brotman Law practice.
SituationOutcome
Payroll trust fund diversion§7202 + TFRP
Pattern of non-paymentWillfulness established
Single quarter oversightCivil likely, criminal rare
Good-faith defenseCheek-based

§7202 Escalation

Civil Assessment

Trust fund recovery penalty.

CI Referral

Pattern + willfulness.

Prosecution

Indictment and trial.

First 48 Hours

  1. Do not speak with CI.
  2. Preserve records.
  3. Engage criminal tax counsel.
  4. Evaluate willfulness defense.
  5. Coordinate civil TFRP.
Brotman Law defends §7202 charges. Based in San Diego.

The ROI Question

§7202 felony carries 5-year maximum. Professional defense essential.

Under Criminal Tax Investigation?

If you know or suspect the IRS Criminal Investigation division is looking at you, the time for routine tax advice is over. What you say and do in the early stages matters significantly — and the window for voluntary disclosure closes the moment CI makes contact. If you’re in this situation, get counsel before you respond to anything.

Get Criminal Tax Counsel →    Or call: (619) 378-3138

When to Engage

  • Payroll trust fund issues.
  • Civil TFRP + criminal concerns.
  • CI contact on payroll.
  • Responsible person determination.

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Frequently Asked Questions

What is §7202?

Criminal willful failure to collect, account for, or pay over tax. Felony up to 5 years. Primarily applies to payroll tax trust fund.

Is §7202 only payroll?

Primarily yes. Any collection / pay-over tax obligation can trigger. Payroll trust fund most common.

What's a responsible person?

Anyone with effective control over payment of taxes. Owner, officer, bookkeeper with authority. Multiple possible.

What's trust fund tax?

Employee income tax withheld + employee FICA. Money belongs to government from moment withheld. Held in trust by employer.

What's the civil counterpart?

IRC §6672 trust fund recovery penalty. 100% of trust fund tax. Personal to responsible person. Often assessed with criminal case.

Is willfulness required?

Yes. Voluntary intentional violation of known duty. Cheek standard applies.

What's the sentence?

Up to 5 years per count. Guidelines drive actual sentence. Tax loss + enhancements.

Can I plead to civil only?

Prosecution discretion. Negotiation with prosecutor. Cooperation and amounts factor.

Is non-profit responsible?

Entity and responsible person liable. Officers / directors can be personally liable. TFRP applies.

What's the best defense?

Challenge willfulness. Document efforts to pay. Demonstrate financial hardship. Cheek good-faith belief. Responsible person challenge.

Can I resolve without criminal?

Voluntary disclosure pre-CI. Civil resolution through TFRP. Cooperation in investigation.

Does bankruptcy help?

Generally no for trust fund. Not dischargeable. Continuing liability. Pay-over obligation survives.

What about franchise tax?

State trust fund taxes have state analogs. CA EDD, CDTFA responsible person provisions.

Next Steps

§7202 question? 15-min consultation free.