(a) General
rule. Any person required to collect, truthfully account
for, and pay over any tax imposed by this title who willfully
fails to collect such tax, or truthfully account for and pay
over such tax, or willfully attempts in any manner to evade or
defeat any such tax or the payment thereof, shall, in addition
to other penalties provided by law, be liable to a penalty equal
to the total amount of the tax evaded, or not collected, or not
accounted for and paid over. No penalty shall be imposed under
section 6653 or part II of subchapter A of chapter 68 for any
offense to which this section is applicable.
(b) Preliminary notice requirement.
(1) In general. No penalty
shall be imposed under subsection (a) unless the Secretary
notifies the taxpayer in writing by mail to an address as
determined under section 6212(b) or in person that the
taxpayer shall be subject to an assessment of such
penalty.
(2) Timing of notice. The mailing of the notice described
in paragraph (1) (or, in the case of such a notice
delivered in person, such delivery) shall precede any
notice and demand of any penalty under subsection (a) by
at least 60 days.
(3) Statute of limitations. If a notice described in
paragraph (1) with respect to any penalty is mailed or
delivered in person before the expiration of the period
provided by section 6501 for the assessment of such
penalty (determined without regard to this paragraph), the
period provided by such section for the assessment of such
penalty shall not expire before the later of--
(A) the date 90 days
after the date on which such notice was mailed or
delivered in person, or
(B) if there is a timely protest of the proposed
assessment, the date 30 days after the Secretary
makes a final administrative determination with
respect to such protest.
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(4) Exception for jeopardy.
This subsection shall not apply if the Secretary finds
that the collection of the penalty is in jeopardy.
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(c) Extension of period of
collection where bond is filed.
(1) In general. If, within
30 days after the day on which notice and demand of any
penalty under subsection (a) is made against any person,
such person--
(A) pays an amount
which is not less than the minimum amount required
to commence a proceeding in court with respect to
his liability for such penalty,
(B) files a claim for refund of the amount so paid,
and
(C) furnishes a bond which meets the requirements of
paragraph (3),
no levy or proceeding in court for the collection of
the remainder of such penalty shall be made, begun,
or prosecuted until a final resolution of a
proceeding begun as provided in paragraph (2).
Notwithstanding the provisions of section 7421(a),
the beginning of such proceeding or levy during the
time such prohibition is in force may be enjoined by
a proceeding in the proper court. Nothing in this
paragraph shall be construed to prohibit any
counterclaim for the remainder of such penalty in a
proceeding begun as provided in paragraph (2).
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(2) Suit must be
brought to determine liability for penalty. If, within
30 days after the day on which his claim for refund
with respect to any penalty under subsection (a) is
denied, the person described in paragraph (1) fails to
begin a proceeding in the appropriate United States
district court (or in the Court of Claims) for the
determination of his liability for such penalty,
paragraph (1) shall cease to apply with respect to
such penalty, effective on the day following the close
of the 30-day period referred to in this paragraph.
(3) Bond. The bond referred to in paragraph (1) shall
be in such form and with such sureties as the
Secretary may by regulations prescribe and shall be in
an amount equal to 1 1/2 times the amount of excess of
the penalty assessed over the payment described in
paragraph (1).
(4) Suspension of running of period of limitations on
collection. The running of the period of limitations
provided in section 6502 on the collection by levy or
by a proceeding in court in respect of any penalty
described in paragraph (1) shall be suspended for the
period during which the Secretary is prohibited from
collecting by levy or a proceeding in court.
(5) Jeopardy collection. If the Secretary makes a
finding that the collection of the penalty is in
jeopardy, nothing in this subsection shall prevent the
immediate collection of such penalty.
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(d) Right of contribution
where more than1 person liable for penalty. If more than 1
person is liable for the penalty under subsection (a) with
respect to any tax, each person who paid such penalty shall be
entitled to recover from other persons who are liable for such
penalty an amount equal to the excess of the amount paid by such
person over such person's proportionate share of the penalty.
Any claim for such a recovery may be made only in a proceeding
which is separate from, and is not joined or consolidated with
(1) an action for
collection of such penalty brought by the United States,
or
(2) a proceeding in which the United States files a
counterclaim or third-party complaint for the collection
of such penalty.
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(e) Exception for voluntary
board members of tax-exempt organizations. No penalty shall
be imposed by subsection (a) on any unpaid, volunteer member of
any board of trustees or directors of an organization exempt
from tax under subtitle A if such member--
(1) is solely serving in an honorary capacity,
(2) does not participate in the day-to-day or financial
operations of the organization, and
(3) does not have actual knowledge of the failure on which such
penalty is imposed.
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The preceding sentence shall not apply if it results in no
person being liable for the penalty imposed by subsection (a). |
