18.01 STATUTORY LANGUAGE: 26 U.S.C. §§ 7215 & 7512

18.02 GENERALLY

18.03 ELEMENTS OF "TRUST FUND" CASES

18.04 PERSON REQUIRED TO COLLECT, ACCOUNT FOR, AND PAY OVER

18.04[1] Person Required -- "Employer"

18.04[2] Employees

18.05 REQUIREMENTS OF SECTION 7512(b)

18.05[1] Notice of Failure to Collect, Account For, and Pay Over

18.05[2] Bank Account For Trust Deposits

18.05[3] Prior Failures to Pay

18.05[4] Dates of Payroll Checks

18.05[5] Expert Testimony Excluded

18.06 CIRCUMSTANCES BEYOND CONTROL

18.07 INTENT

18.08 DEFENSES

18.08[1] Constitutional Contentions

18.08[2] Selective Prosecution

18.08[3] Prior Excess Deposits

18.08[4] Late Payment of Taxes

18.08[5] Lack of Funds

18.08[6] Embezzlement

18.09 POLICY CONSIDERATIONS

18.10 VENUE

18.11 STATUTE OF LIMITATIONS

      18.01  STATUTORY LANGUAGE: 26 U.S.C. §§ 7215 & 7512

            §7215.  Offenses with respect to collected taxes

            (a)  Penalty.--Any person who fails to comply with any

      provision of section 7512(b) shall, in addition to any other penalties

      provided by law, be guilty of a misdemeanor, and, upon conviction thereof,

      shall be fined* not more than $5,000, or imprisoned not more than one

      year, or both, together with the costs of prosecution.

            (b)  Exceptions.--This section shall not apply--

                  (1) to any person, if such person shows that there was

            reasonable doubt as to (A) whether the law required collection of

            tax, or (B) who was required by law to collect tax, and

                  (2) to any person, if such person shows that the failure to

            comply with the provisions of section 7512(b) was due to

            circumstances beyond his control.

      For purposes of paragraph (2), a lack of funds existing immediately after

      the payment of wages (whether or not created by the payment of such wages)

      shall not be considered to be circumstances beyond the control of a

      person.

            * As to offenses committed after December 31, 1984, the Criminal

      Fine Enforcement Act of 1984 (P.L. 98-596) enacted 18 U.S.C.

      § 3623 [FN1] which increased the maximum permissible fines for both

      misdemeanors and felonies.  For the misdemeanor offense set forth in

      section 7215, the maximum permissible fine for offenses committed after

      December 31, 1984, is increased to at least $100,000 for individuals and

      $200,000 for corporations.  Alternatively, if any person derives pecuniary

      gain from the offense, or if the offense results in a pecuniary loss to a

      person other than the defendant, the defendant may be fined not more than

      the greater of twice the gross gain or twice the gross loss.

            § 7512.  Separate accounting for certain collected taxes,

      etc.

            (a) General rule.--Whenever any person who is required

      to collect, account for, and pay over any tax imposed by subtitle C or

      chapter 33 þ

                  (1) at the time and in the manner prescribed by law or

            regulations (A) fails to collect, truthfully account for, or pay

            over such tax, or (B) fails to make deposits, payments, or returns

            of such tax, and

                  (2) is notified, by notice delivered in hand to such person,

            of any such failure,

      then all the requirements of subsection (b) shall be complied with.  In

      the case of a corporation, partnership, or trust, notice delivered in hand

      to an officer, partner, or trustee, shall, for purposes of this section,

      be deemed to be notice delivered in hand to such corporation, partnership,

      or trust and to all officers, partners, trustees, and employees thereof.

            (b) Requirements.-- Any person who is required to

      collect, account for, and pay over any tax imposed by subtitle C or

      chapter 33, if notice has been delivered to such person in accordance with

      subsection (a), shall collect the taxes imposed by subtitle C or chapter

      33, which become collectible after delivery of such notice, shall (not

      later than the end of the second banking day after any amount of such

      taxes is collected) deposit such amount in a separate account in a bank

      (as defined in section 581), and shall keep the amount of such taxes in

      such account until payment over to the 

United States

.  Any such account

      shall be designated as a special fund in trust for the 

United States

,

      payable to the 

United States

 by such person as trustee.

            (c) Relief from further compliance with subsection

      (b).--Whenever the Secretary is satisfied, with respect to any

      notification made under subsection (a), that all requirements of law and

      regulations with respect to the taxes imposed by subtitle C or chapter 33,

      as the case may be, will henceforth be complied with, he may cancel such

      notification.  Such cancellation shall take effect at such time as is

      specified in the notice of such cancellation.

                        18.02  GENERALLY

      It is a crime under section 7215 to fail to comply with any provision of

section 7512(b) of the Internal Revenue Code, which requires employers (among

others), upon notice, to collect employment taxes and deposit the withheld taxes

in a special bank account held in trust for the 

United States

.  United

States v. Erne, 576 F.2d 212, 215 (9th Cir. 1978); 

United States

v. Paulton, 540 F.2d 886, 888 (8th Cir. 1976); 

United States

 v.

Merriwether, 329 F. Supp. 1156, 1159 (S.D. Ala. 1971), aff'd, 469

F.2d 1406 (5th Cir. 1972).

      Employment taxes are based on an employer-employee relationship, and they

include the following:

      1.    Old-Age, Survivors, and Disability Insurance taxes and Hospital

            Insurance taxes, all commonly known as social security or F.I.C.A.

            taxes, which are levied as a tax against the wage income of an

            employee and as an excise tax against the wages paid by an employer. 

             26 U.S.C. §§ 3101 & 3111.  The taxes are to be paid by

            the employer, who is required to deduct the employee's share of

            social security taxes from the employee's wages, and add to this

            amount the employer's share of the tax.  26 U.S.C. § 3102.

      2.    Federal unemployment taxes, commonly known as F.U.T.A. taxes, which

            are levied as an excise tax against the employer, based on the total

            wages paid with respect to employment.  26 U.S.C. § 3301.  The

            actual F.U.T.A. tax ordinarily is inconsequential, because

            contributions to state unemployment funds are credited against

            F.U.T.A. taxes, up to 90 percent of the latter. 

            26 U.S.C. § 3302.

      3.    Employees' income taxes deducted by an employer from the wages paid

            to employees, for payment by the employer to the Internal Revenue

            Service.  26 U.S.C. §§ 3402, 3403.

      Employers are required, under the above-noted provisions of the Internal

Revenue Code, to: (1) withhold social security, unemployment, and income taxes

from the wages of employees; (2) make quarterly returns of their withholdings on

Forms 941; and (3) pay over to the Internal Revenue Service the amounts of taxes

withheld and the amounts paid by the employer.  If an employer is delinquent with

respect to his obligations regarding withholding, the Internal Revenue Service

may invoke the provisions of section 7512.

              18.03  ELEMENTS OF "TRUST FUND" CASES

      To establish a violation of section 7215, the government must prove the

following elements beyond a reasonable doubt:

      1.    The defendant was a person required to collect, account for, and pay

            over income tax withholding on wages and F.I.C.A. taxes.

      2.    The defendant was served with the statutory notice prescribed by

            section 7512(a);

      3.    The defendant failed to comply with the notice, while not

            entertaining a reasonable doubt as to whether the law required the

            defendant to do so, and the failure was not due to circumstances

            beyond the defendant's control.

United States v.  Erne, 576 F.2d 212, 213 (9th Cir. 1978);

United States v. Polk, 550 F.2d 566, 567 (9th Cir. 1977); 

United States v. Hemphill, 544 F.2d 341, 343-44 (8th Cir. 1976). 

         18.04 PERSON REQUIRED TO COLLECT, ACCOUNT FOR, AND PAY OVER

18.04[1]  Person Required -- "Employer"

      Although the cases often use the term "employer," technically section 7215

refers to "person" and does not use the term "employer."  Section 7343 of Title

26 defines the word "person" for purposes of section 7215.  United States

v. McMullen, 516 F.2d 917, 921 (7th Cir.1975);United States v.

Stevenson, 540 F. Supp. 93, 95 (D. DE. 1982);  United States v.

Merriwether, 329 F. Supp. 1156, 1159 (S.D. AL 1971), aff'd, 469

F.2d 1406 (5th Cir. 1972).  Section 7343 states that "person" includes "an

officer or employee of a corporation, or a member or employee of a partnership,

who as such officer, employee, or member is under a duty to perform the act in

respect of which the violation occurs."  26 U.S.C. § 7343. [FN2]

      The Seventh Circuit stated, in McMullen, that the term

"person" includes all those with significant control over the financial

decision-making process within a corporation.  McMullen, 516 F.2d

at 921.  Thus, if a defendant had such control, then the defendant is a person

who has the legal duty to collect, truthfully account for, and pay over the

withholding taxes of the employer's entity.  McMullen, 516 F.2d at

920.

      The court in McMullen further stated that the fact that the

defendant's signature did not appear on some payroll checks was immaterial and

was no basis for not admitting these checks into evidence -- "responsibility for

withholding taxes does not turn on the ministerial act of signing checks but on

authority to control the disposition of funds."  McMullen, 516 F.2d

at 921.

      In Stevenson, 540 F. Supp. 93, the defendants, who were the

president and vice-president of a corporation, moved to dismiss the indictment

on the grounds that it charged them individually with failing to make the

required deposits and did not charge the corporation, which was the actual

employer.  The court held that the defendants were "persons" under section 7215

because they were under a duty to make the required deposits.  Therefore, the

indictment was sufficient to charge an offense, even though the corporation was

not charged.  Stevenson, 540 F. Supp. at 95-96.

      In Merriwether, 329 F. Supp. 1156, the court took a different

approach to the issue of corporation versus officer, but reached the same result

on criminal liability.  The court first concluded that in the case of a

corporation, it was the corporation that was the "person" required to collect

taxes from the wages of its employees and not the corporate officers.  The

corporation was not charged, but the court found the defendant, who was the

president and principal officer of the corporation, guilty of violating section

7215 on the grounds that:

      [T]he Government has proven facts showing that defendant, Merriwether,

      aided and abetted Dixie Engineering Corporation, a person within the

      purview of Section 7501, in its failure to collect and pay over

      withholding taxes.  It is well settled that an aider and abettor is guilty

      and punishable as a principal.  18 U.S.C.A. Section 2.

            An aider and abettor may be indicted directly with commission of the

      substantive crime, and such a charge may be supported by proof that he

      only aided and abetted in its commission.  Nassif v. United

      States, 370 F.2d 147 (8th Cir. 1966).  One need not be charged as

      an aider and abettor to be held as one.  Yeloushan v. United

      States, 339 F.2d 533 (5th Cir.  1964).  Evidence showing an

      offense to have been committed by a principal is necessary, although it is

      not required that the principal be convicted, or even that identity of the

      principal be established.  Pigman v. United States, 407 F.2d

      237, 239 (8th Cir. 1969).

Merriwether, 329 F. Supp. at 1159-60.

      For a lengthy discussion on who is a person required to collect, truthfully

account for, and pay over withholding taxes, see Pacific National

Insurance v. United States, 422 F.2d 26, 29-32 (9th Cir.), a civil case

under section 6672 of the Internal Revenue Code. See also United States v.

Carrigan, 31 F.3d 130 (3d Cir. 1994)

18.04[2]  Employees

      To establish the requirement for withholding taxes, the government must

prove that the taxes in issue relate to employees of the defendant or the

defendant's business.  On this issue, the jury can consider all of the

circumstances surrounding the relationship between the defendant and those

individuals pointed to as employees.

      The fundamental test is the common law test of the employer's right to

control the workers.  This right to control must include control of the activity

of the workers, not only with regard to the result accomplished, but also the

means by which this result is accomplished.  United States v. Polk,

550 F.2d 566, 567 (9th Cir. 1977).  See Lifetime Siding, Inc. v.

United States, 359 F.2d 657, 660 (2d Cir.).  Essentially, the government

must prove that the workers were employees and not independent contractors.

             18.05  REQUIREMENTS OF SECTION 7512(b)

18.05[1]  Notice of Failure to Collect, Account For, and Pay Over

      In order to establish a violation of section 7215(a), the Internal Revenue

Service first must have notified the employer of his failure to collect,

truthfully account for, or pay over the covered taxes, or to make deposits,

payments, or returns of such taxes, "by notice delivered in hand . . . ."  26

U.S.C. § 7512(a)(2).  Thus, personal service of the notice is required.  In

the case of a formal business or legal entity, however, service on any corporate

officer will suffice as notice to all other officers.  United States v.

McMullen, 516 F.2d 917, 920 (7th Cir.); United States v.

Stevenson, 540 F. Supp. 93, 96 (D. Del. 1982).

      The Internal Revenue Service uses Form 2481, Notice to Make Special

Deposits of Taxes, as the formal notice served pursuant to section 7512.  The

recipient signs this form as proof of having received notice.  A defendant can

be prosecuted, however, even if there is a refusal to sign the Form 2481, as long

as it is shown that the defendant actually received it. 

See McMullen, 516 F.2d at 919.

      Form 2481 sets forth the requirement that the employer open a special trust

account in a bank for the benefit of the United States and deposit in that

account all taxes withheld from wages within two banking days after the taxes are

collected.  26 U.S.C. § 7512(b).  Furthermore, the employer must pay over

the taxes monthly, instead of quarterly, with the filing of Form 720, Quarterly

Federal Excise Tax Return, or Form 941M, Employer's Monthly Federal Tax Return. 

The requirements set forth in Form 2481 cannot be waived and remain in effect

until the employer receives written notice from the District Director canceling

these obligations.  See United States v. Gay, 576 F.2d 1134,

1137 (5th Cir. 1978).

18.05[2]  Bank Account For Trust Deposits

      The bank account used for the trust deposits must be designated as a

special fund in trust for the United States, payable to the United States by the

employer as trustee.  26 U.S.C. §  7512(b).  The fact that a defendant had

three general bank accounts in his own name does not meet this requirement. 

United States v. McMullen, 516 F.2d 917, 920-21 (7th Cir.1975). 

As a practical matter, however, unless there are unusual circumstances present,

an employer probably will not be prosecuted for failing to establish such a

special account, if the employer has paid the required taxes monthly by filing

Forms 720 or 941M.  In such a situation, the government is receiving its money

on a timely basis.

      Section 7512(b) requires the employer to make a deposit with each pay

period, even though the employer does not have to formally pay over the funds to

the United States until the end of each month.  Thus, with every pay period that

the employer fails to deposit the withheld taxes to the trust account, the

employer is committing a violation of section 7215.  Otherwise stated, where

there is a series of failures to deposit over numerous pay periods, each failure

is a separate offense and not part of one continuing offense.  United

States v. Paulton, 540 F.2d 886, 893 (8th Cir. 1976).

      It is not necessary for the government to prove the exact amount of each

deposit required.  The essence of a section 7215 offense is failing to make

timely deposits to a trust account.  If no deposits were made at all, then the

government need only prove that a deposit was due to show noncompliance with

section 7512 and, therefore, a violation of section 7215.  United States

v. Gay, 576 F.2d 1134, 1138 (5th Cir. 1978).

18.05[3]  Prior Failures to Pay

      A defendant's earlier failures to pay withholding and F.I.C.A. taxes for

periods before those named in the indictment or information have been held

admissible as prior similar acts.  United States v. Polk, 550 F.2d

566, 568 (9th Cir. 1977).  In Polk, the court stated that such

evidence went to the defendant's state of mind and intent, and, as such, was

admissible.  Polk, 550 F.2d at 568.  The holding of

Polk is questionable, however, because intent is not an element of

section 7215; it is a strict liability offense.  See United States

v. Erne, 576 F.2d 212 (9th Cir. 1078), and Section 18.07, infra. 

But see United States v. McMullen, 516 F.2d 917, 921 (7th

Cir.1975) (holding evidence of prior tax deficiencies was necessary and material,

because section 7512(b) is triggered by prior failures to properly collect,

account for, or pay over taxes).

18.05[4]  Dates of Payroll Checks

      Questions over the dates of employees' checks and the dates that the checks

were cashed are inconsequential.  "It is not material that [payroll] checks may

not have been delivered on the exact dates appearing thereon or that particular

employees may not have cashed their checks immediately after receiving them."

United States v. Gay, 576 F.2d 1134, 1138 (5th Cir. 1978) (quoting

United States v. Paulton, 540 F.2d 886, 891 (8th Cir. 1976)).  The

mere fact that some checks were not dated on the actual pay days listed in the

indictment or information is inconsequential and a harmless variance. 

United States v. McMullen, 516 F.2d 917, 921 (7th Cir.1975).

18.05[5]  Expert Testimony Excluded

      The Fifth Circuit has approved the exclusion of expert testimony at trial

concerning the requirements of section 7512.  A defendant's legal obligations

under this section are a matter for the court's instructions to the jury on the

law and are not properly a subject for testimony by an expert witness. 

United States v. Gay, 576 F.2d 1134, 1137 (5th Cir. 1978).

               18.06  CIRCUMSTANCES BEYOND CONTROL

      Section 7215(b)(2) provides that there is no violation if the defendant

"shows" that the failure to collect, account for, or pay over the tax was "due

to circumstances beyond his control."  Section 7215(b) also provides that a lack

of funds existing immediately after the payment of wages, whether or not caused

by the payment of the wages, "shall not be considered to be circumstances beyond

the control of a person."  The scope of this "circumstances beyond control"

exception to the statute "was intended to be narrow."  United States v.

Randolph, 588 F.2d 931, 932-33 (5th Cir. 1979).

      The legislative history of section 7215 includes examples of acceptable

circumstances beyond an employer's control, which would cause a lack of funds

after (but not immediately after) the payment of wages.  These include theft,

embezzlement, destruction of the business from fire or other casualty, and the

failure of the bank in which the employer had deposited funds prior to

transferring them to the trust account for the government. 

Randolph, 588 F.2d at 933.  Conversely, a lack of funds caused by

the defendant taking care of other liabilities and paying other creditors is not

considered a circumstance beyond a person's control and is not a viable defense. 

United States v. Plotkin, 239 F. Supp. 129, 131 (E.D. Wis. 1965).

                          18.07  INTENT

      Section 7215 is a strict criminal liability provision.  The government is

not required to prove any particular mental state, intent, or willfulness, as it

must in other criminal tax violations.  United States v. Erne, 576

F.2d 212, 213-15 (9th Cir. 1978);  United States v. Paulton, 540

F.2d 886, 890-91 (8th Cir. 1976);  United States v. Dreske, 536

F.2d 188, 196 (7th Cir. 1976);  United States v.

Gorden, 495 F.2d 308, 310 (7th Cir.1974);  United States v.

Stevenson, 540 F. Supp. 93, 97 (D. Del. 1982). See also United

States v. Evangelista,  122 F. 3d 112 (2d Cir. 1997) (recognizing

that the felony offense of failing to account for and pay over under section 7202

entails the element of willfulness, while the misdemeanor under sections 7215 and

7512 does not).

                         18.08  DEFENSES

18.08[1]  Constitutional Contentions

      Sections 7215 and 7512 have been upheld in the face of various

constitutional challenges.  The argument that section 7512 is unconstitutional

because it does not provide for a prior administrative hearing before an employer

is required to comply with subsection (b) has been rejected.  United States

v. Paulton, 540 F.2d 886, 889 (8th Cir. 1976); United States v.

Patterson, 465 F.2d 360, 361 (9th Cir.), cert. denied, 409 U.S.

1038 (1972); United States v. Plotkin, 239 F. Supp. 129, 131-32

(E.D. Wis.  1965).

      The Eighth Circuit also stated, in Paulton, that the

exceptions appearing in section 7215(b) do not unconstitutionally place on a

defendant the burden of proving his innocence and, therefore, do not

impermissibly infringe on a defendant's privilege against self-incrimination. 

Paulton, 540 F.2d at 891-92.

      Finally, the contention that a sentence of imprisonment for violation of

section 7215 is contrary to the Fifth Amendment of the United States Constitution

has been rejected.  Defendants have been unsuccessful in claiming that they were

being imprisoned for debt because they were unable to pay the taxes. 

United States v. Gorden, 495 F.2d 308, 310 (7th Cir.1974);

United States v. Patterson, 465 F.2d at 361. 

18.08[2]  Selective Prosecution

      Courts also have rejected claims of selective, discriminatory prosecution. 

United States v. Erne, 576 F.2d 212, 216-17 (9th Cir. 1978);

United States v. Stevenson, 540 F. Supp. 93, 97-98 (D. Del. 1982). 

These holdings, rather than being based on the nature of the statute, simply

rested on the defendants' failure of proof.

18.08[3]  Prior Excess Deposits

      Making advance deposits into the trust account, in excess of withheld

amounts, for pay periods prior to those charged, is not a defense to the failure

to make the proper deposits for the pay periods named in the indictment or

information.  "To ensure collection of withheld taxes, section 7215 imposes

strict compliance with the deposit requirements of section 7512 and any deviation

from these provisions constitutes an offense."  United States v.

Gay, 576 F.2d 1134, 1137 (5th Cir. 1978).  Note, however, that evidence

of overpayment for prior pay periods may be admissible as proof that the

defendant had a reasonable doubt as to his obligation to collect taxes in the

charged pay periods, because he may already have deposited any taxes due. 

Gay, 576 F.2d at 1137.

18.08[4]  Late Payment of Taxes

      Evidence of late payments of withholding taxes is no defense, because "the

focus of section 7512 is not eventual payment, but timely payment, and an offense

under section 7215 has nothing directly to do with payment at all, but with

failure to comply with mandatory accounting procedures," which were designed to

avoid late payments.  United States v. McMullen, 516 F.2d 917, 921

(7th Cir.1975).

18.08[5]  Lack of Funds

      The Seventh Circuit has rejected the defense of lack of funds immediately

prior or subsequent to the payment of the employer's payroll.  United

States v. Dreske, 536 F.2d 188, 195 (7th Cir. 1976).  Section 7215 also

specifically rejects "lack of funds existing immediately after the payment of

wages (whether or not created by the payment of such wages)" as being an

exception to the sanctions of the statute.

18.08[6]  Embezzlement

      Congress has stated that embezzlement is an example of an acceptable

circumstance beyond a person's control, which may bring the person within the

exceptions to section 7215.  United States v. Randolph, 588 F.2d

931, 933 (5th Cir. 1979); S. Rep. No. 1182, 85th Cong., 2d Sess. ([1958] U.S.

Code Cong. & Ad. News 2179, 2191-92).  The court, in Randolph, held

that there was insufficient proof to support the embezzlement defense, where the

evidence consisted only of a co-owner of the defendant having been involved with

a competitor.  The court noted that in order to assert a viable embezzlement

defense, a defendant must prove that the embezzling co-owner or employee lied to

the defendant about the bank balances at the time the payroll checks were drawn,

or embezzled the funds after the payroll checks were drawn, leaving insufficient

funds to make the trust deposits.  Embezzlement before payroll checks are drawn

would not constitute a defense if the defendant knew or should reasonably have

known of the embezzlement.  Randolph, 588 F.2d at 933.

                  18.09  POLICY CONSIDERATIONS

      Trust fund cases under section 7215 are one of the categories of criminal

tax cases authorized by the Department of Justice to be referred directly from

the Internal Revenue Service to United States Attorneys' offices.  USAM 6-4.243. 

This does not mean that such cases should be treated lightly.

      The importance of employer taxes is noted in the Comptroller General's

Report to the Congress, Fictitious Tax Deposit Claims Plague IRS, GGD-81-45,

dated April 28, 1981, at pages 1-2:

      In fiscal year 1979, employment trust fund taxes accounted for $298

      billion (65 percent) of the $460 billion in internal revenue collections. 

      In IRS' 1979 annual report the Commissioner noted that nonpayment of taxes

      withheld from employee's wages is one of the most serious delinquency

      problems.  IRS initiated collection action against employers for

      nonpayment of $2.4 billion in trust fund taxes during fiscal year 1976,

      the latest year for which data is available.

           . . . . 

            Requiring employers to withhold taxes and periodically deposit them

      to a Federal bank account facilitates tax collection.  In addition, it

      avoids the hardships to individual taxpayers of making lump-sum payments

      at the end of a year and minimizes the potential for individuals to avoid

      tax payment.  One problem, however, is that it gives employers the

      opportunity to use the withheld taxes for their own benefit if they do not

      pay them to the Government.  Testifying in 1976 before the Oversight

      Subcommittee of the House Ways and Means Committee, IRS officials

      expressed concern that employers use the withheld taxes as low-interest

      loans from the Federal Government.

      As noted, the numbers that relate to delinquent employment taxes are in the

billions of dollars, and the collection of employee income taxes at their source

is one of the most important of all the government's tax-gathering methods. 

Criminal tax prosecutions of all kinds act as a deterrent to others, and

prosecutions under section 7215, in particular, can act as an aid to the proper

collection of employment taxes.

                          18.10  VENUE

      The Sixth Amendment of the United States Constitution provides that trials

shall be in the "State and district wherein the crime shall have been committed

. . . ." See also Fed. R. Crim. P. 18.

      If a statute does not indicate the location of the crime, "the locus

delicti must be determined from the nature of the crime alleged and the

location of the act or acts constituting it."  United States v.

Anderson, 328 U.S. 699, 703 (1946).  In section 7215 prosecutions, venue

is proper in the judicial district in which the employer had his place of

business or in which he maintained his special trust bank account, if he ever

opened such an account. 

      See also the discussion of venue in Section 6.00,

supra.

                  18.11  STATUTE OF LIMITATIONS

      The statute of limitations for section 7215 offenses is three years from

the date the defendant was required to make the deposit to the trust account and

failed to do so.  26 U.S.C. § 6531.  According to section 7512(b), the

deposit must be made by the end of the second banking day after the taxes are

collected.  Where proper deposits have been made but the defendant later

withdraws the funds from the trust account and uses them for purposes other than

payment to the IRS, then presumably the statute of limitations commences to run

from the date the defendant made such withdrawal(s).

      See also the discussion of the statute of limitations in

Section 7.00, supra.

FN 1. Changed to 18 U.S.C. § 3571, commencing November 1, 1986.