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Jeremy H. Temkin

Under the Internal Revenue Code, employers are responsible for accounting for and paying over to the IRS taxes that they withhold from their employees. In United States v. Sertich, 879 F.3d 558 (5th Cir. 2018), the U.S. Court of Appeals for the Fifth Circuit held that an employer who willfully fails either to account for or to pay over such taxes commits a felony under 26 U.S.C. §7202. In so holding, the court rejected the defendant’s argument that the statute’s use of the conjunctive “and” means that it is only violated when the employer breaches both the obligation to account for and the obligation to pay over the withheld taxes. The Fifth Circuit in Sertich also rejected the defendant’s claim that the government had failed to establish that he had willfully violated his tax obligations.

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