United States v. Tommy Lee Gilbert

I.

Tommy Lee Gilbert appeals from the district court’s finding that he violated 26 U.S.C. § 7202 of the Internal Revenue Code (“IRC”) by failing to remit to the Internal Revenue Service (“IRS”) withholding tax that he collected for the employees of his business.

Gilbert owned and operated a business called Best in the West Security (“BITW”) between 1988 and 1993. The business provided security guard services for private companies. BITW was required to collect, account for, and pay over to the IRS withholding tax for each of its employees. BITW collected and accounted for the taxes, but it failed to pay over the withholding tax to the IRS. Gilbert claimed that his business did not have the necessary funds to pay the taxes. Nonetheless, Gilbert continued to pay his employees’ salaries while failing to pay over the withholding tax.

Gilbert was subsequently indicted on six counts of willful failure to collect and pay over tax, in violation of 26 U.S.C. § 7202 (Counts 1-6); one count of tax evasion, in violation of 26 U.S.C. § 7201 (Count 7); one count of willful failure to file a tax return, in violation of 26 U.S.C. § 7203 (Count 8); and one count of willfully subscribing to a…