FINLEY v. U.S.

No. 95-3108.

123 F.3d 1342 (1997)

Edward J. FINLEY, Plaintiff and Counterclaim Defendant, v. UNITED STATES of America, Defendant and Counterclaim Plaintiff-Appellee, Floyd Johnson, Counterclaim Defendant-Appellant.

United States Court of Appeals, Tenth Circuit.

August 20, 1997.


Attorney(s) appearing for the Case

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, DC, 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, KS, 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...

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