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Overview of Statute of Limitations in Tax Prosecutions for Failure to Collect or Pay Tax

A statute of limitations period may prevent the Government from bringing or succeeding in a claim against a person accused of committing tax crimes. 26 U.S.C. § 7202 (Willful failure to collect or pay over tax) addresses two offenses. 1.) A willful failure to collect tax, and 2.) A willful failure to truthfully account for and/or pay over tax. It was designed primarily to assure compliance by third- parties obligated to collect taxes. In § 7202 prosecutions, the statute of limitations is six years. Arguments have been made over the years that the statute should be three years due to the language of, “Failure to pay over third- party taxes was substantively different from a failure to pay taxes.” (See U.S. v. Brennick, 1995; and U.S. v. Block, 1980).  However, most courts conclude that the terms “pay” and “pay over” are used interchangeably by the Supreme Court and thus the term “pay” rather than “pay over” will not affect the result of the judgment. Despite the disagreement among courts, the failure to pay third-party taxes as covered by § 7202 constitutes failure to pay “any tax,” and thus subject to the six year statute of limitations.

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