Loew

MEMORANDUM

Edward J. Loew seeks a refund of $40,750 paid to the Internal Revenue Service in partial satisfaction of a trust fund recovery penalty assessed against him personally under § 6672 of the Internal Revenue Code. 26 U.S.C. § 6672 . His company had failed to pay over taxes withheld from employees that are required to be held in trust for the government. The district court entered summary judgment in favor of the government. For purposes of appeal, Loew does not dispute that he was a person responsible for paying over withheld employment taxes for Jedi Enterprises, Inc. (“Jedi”). Loew appeals only the district court’s determination that there is no genuine issue of material fact as to whether Loew acted willfully in failing to pay the tax. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Because the parties are familiar with the factual background, we do not recite the details here.

*793 We have defined willfulness “as a voluntary, conscious and intentional act to prefer other creditors over the United States.” Davis v. United States, 961 F.2d 867, 871 (9th Cir.1992). Thus, if Loew deliberately used unencumbered corporate revenues to pay commercial…