Edward J. Finley, and Counterclaim v. United States of America, and Counterclaim Floyd Johnson, Counterclaim

BRORBY, Circuit Judge.

We reheard this appeal en banc to address the following question:

Under 26 U.S.C. § 6672, if a responsible person fails to investigate or correct mismanagement after learning of a withholding tax delinquency, must his conduct be found reckless and therefore willful as a matter of law, or, in the alternative, should the jury, in the view of all relevant evidence, be entitled to find the responsible person did not act recklessly?

We hold “willful” conduct as defined in the context of 26 U.S.C. § 6672 (1994 & Supp. 1977)' can be negated by a showing the responsible person had…