       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               TIMOTHY L. JENKINS,
                 Plaintiff-Appellant,
                           v.
                  UNITED STATES,
                  Defendant-Appellee.
              __________________________

                      2012-5019
              __________________________

    Appeal from the United States Court of Federal
Claims in case no. 08-CV-050, Judge Francis M. Allegra.
              ____________________________

                Decided: June 8, 2012
             ____________________________

   TIMOTHY L. JENKINS, of Washington, DC, pro se.

    MARION E.M. ERICKSON, Attorney, Appellate Section,
Tax Division, United States Department of Justice, of
Washington, DC, for defendant-appellee. With her on the
brief were TAMARA W. ASHFORD, Deputy Assistant Attor-
ney General, and JOAN I. OPPENHEIMER, Attorney.
              __________________________

  Before NEWMAN, LOURIE, and PROST, Circuit Judges.
JENKINS   v. US                                          2


LOURIE, Circuit Judge.
   Timothy L. Jenkins appeals from the decision of the
United States Court of Federal Claims finding that he
was liable for trust fund taxes under 26 U.S.C. § 6672(a).
See Jenkins v. United States, 101 Fed. Cl. 122 (2011).
Because the Court of Federal Claims did not clearly err,
we affirm.
                      BACKGROUND
    The central issue in this appeal is whether Jenkins
was personally liable for withholding taxes of Dialogue
Diaspora, Inc. (“DDI”) that DDI failed to pay the Internal
Revenue Service (“IRS”). In August, 1992, Jenkins and
Gary A. Puckrein entered into a preorganizational memo-
randum of understanding to govern the creation of DDI to
publish a magazine, American Visions. Under the agree-
ment, Jenkins and Puckrein would each hold half of the
voting stock of the company and would receive equal
compensation. The agreement also indicated that Puck-
rein would be DDI’s President and that Jenkins would
assume the title of Publisher of American Visions.
     Shortly after execution of the preorganizational
memorandum, DDI became an incorporated entity with
Jenkins serving as its Chief Executive Officer (“CEO”)
and Chief Financial Officer (“CFO”). On August 26, 1992,
Puckrein and his wife filed articles of incorporation for
DDI with the District of Columbia, and the District ac-
cepted the filing approximately one month later. The
articles of incorporation listed four directors of the com-
pany, specifically, Jenkins, Puckrein, and their respective
spouses. One day after the District accepted the articles
of incorporation for DDI, the company held its first board
meeting. At that meeting, DDI’s board resolved that
Jenkins was appointed CEO and CFO with the title of
Publisher. The meeting minutes also reflect that the
3                                              JENKINS   v. US


initial distribution of voting stock was 55 percent to
Jenkins, 22.5 percent to Puckrein, and 22.5 percent to
Puckrein’s wife. Subsequent transactions resulted in half
of the voting stock being owned by Jenkins and the other
half split between Puckrein and his wife.
    On the same date that DDI held its first Board of Di-
rectors meeting, Jenkins and the other three board mem-
bers of DDI executed an agreement that provided that
DDI would own, publish, and produce American Visions.
The agreement described Jenkins as “an executive officer
and an equity participant” in DDI. Jenkins, 101 Fed. Cl.
at 125.
    After the company was formed with Jenkins as its
CEO and CFO, Jenkins provided financing for DDI’s
operations. First, in addition to leasing their office prop-
erty to DDI (the “S Street Property”), in early 1993,
Jenkins and his wife agreed to encumber the property for
the benefit of the company that would print American
Visions. In addition, Jenkins further agreed to loan
capital to DDI for publication and other budgeting costs.
For security on the loan, DDI’s board of directors created
a voting trust that allowed Jenkins to, at his option,
exercise control over fifty-five percent of the voting shares
of DDI. A second part of the agreement created a factor’s
lien that secured Jenkins’ loan with DDI’s merchandise,
accounts receivable, and all proceeds from the sale or
disposition of the merchandise. Over the operating life of
DDI, Jenkins also provided a number of advances to the
company to cover operating expenses such as employee
salaries. In addition to lending capital to DDI, Jenkins
also personally guaranteed some of DDI’s debt owed to
third-parties.
   Beginning in early 1993, DDI filed federal employ-
ment tax returns but failed to pay the IRS all of the
JENKINS   v. US                                          4


withholding taxes due. At this time, Puckrein signed the
tax returns filed with the IRS.
    Puckrein and Jenkins had a falling out in 1995. In
March of that year, Puckrein threatened to sue Jenkins
after contending that Jenkins lacked authority to call a
DDI board of directors meeting. Puckrein also told Jen-
kins that “[u]nder the circumstances, our association
must come to an end.” Jenkins, 101 Fed. Cl. at 127. DDI
was also increasingly past due on its rental payments to
Jenkins for use of the S Street Property. By April, Jen-
kins learned that DDI had an employment tax dispute
with the IRS. After being confronted by Jenkins, Puck-
rein assured him that the problem had been remedied and
that DDI had entered into an installment agreement with
the IRS.
    In June, 1995, Jenkins learned that DDI was still not
compliant with its employment tax payments. At that
time, he also learned that Puckrein had been secretly
operating a parallel business, American Visions Enter-
prises. Jenkins and his wife thereafter called a special
meeting of DDI’s board of directors and invited a local IRS
agent to attend the meeting. Jenkins also changed the
locks on the S Street Property and posted a sign on the
property that stated that the premises had been sealed to
preserve evidence for the IRS.
    Over Puckrein’s protest, DDI’s board of directors held
a meeting on June 12, 1995. In addition to the board
members and their various legal counsel, an IRS agent
attended the meeting. At the meeting, a two-thirds
majority of DDI’s board members replaced Puckrein as
DDI’s President, removed him from his editor-in-chief
position, and appointed an executive committee comprised
of Jenkins and his wife.
5                                             JENKINS   v. US


    After the meeting, Jenkins signed an IRS Form 4180.
The form reflected that Jenkins, in addition to owning
half of DDI’s stock, determined DDI’s financial policy, had
opened corporate bank accounts, signed corporate checks,
and guaranteed corporate loans. The form indicated that
Jenkins became aware of the delinquent taxes based upon
the issuance of DDI’s year-end financial statements for
1993 and 1994. Shortly thereafter, Jenkins signed IRS
Form 433-B, which listed DDI’s income sources and
assets.
    One month later, on July 5, 1995, Jenkins wrote a
check on DDI’s bank account payable to himself and his
wife for $16,668.47, the balance of DDI’s account. At the
time he wrote the check, he was aware of DDI’s unpaid
tax liability to the IRS.
    Jenkins thereafter initiated legal action against Puck-
rein, who filed for bankruptcy in late 1997. In early 1998,
over Jenkins protest, the IRS assessed against him a
penalty of $189,972 pursuant to § 6672(a) of the Internal
Revenue Code for failure to pay the withheld employment
taxes. The IRS collected the amounts in 2005 and 2006
by levying on Jenkins’ individual retirement account and
Social Security benefits. After exhausting his administra-
tive remedies, Jenkins filed a refund claim in the Court of
Federal Claims.
    Subsequent to holding a trial on Jenkins’ claims, the
court found that he was under a duty to pay the employ-
ment taxes pursuant to § 6672(a). Specifically, the court
found that Jenkins held various positions of significant
authority within DDI, including the CEO and CFO posi-
tions, in addition to being the Publisher of American
Visions. Moreover, he had the ability to sign checks on
DDI’s behalf and withdraw DDI’s funds. The court also
found significant that Jenkins served on DDI’s board of
JENKINS   v. US                                          6


directors and, during the relevant period, owned at least
fifty percent of the company’s stock. Finally, the court
found that by financing the initial operations of DDI,
guaranteeing loans to DDI, and leasing the S Street
Property to DDI, Jenkins possessed an additional entre-
preneurial stake in the company. Thus, even though he
did not deal with the company’s taxes directly, the court
found Jenkins had the power to direct payment of the
delinquent taxes.
    The court also found that Jenkins’ failure to collect,
account for, and remit the taxes was willful. Specifically,
the court found that Jenkins knew that the payment of
employment taxes was at risk at least by April, 1995, and
perhaps earlier. The court found that instead of paying
the delinquent taxes, Jenkins was primarily interested in
recouping the money he invested in DDI, evidenced by his
decision to empty DDI’s checking account to pay himself
$16,668.47 rather than remit that money to the IRS. In
addition to that check, the court also found that Jenkins
should have known that each check he signed after April
1995, including two additional checks to himself and his
wife, was at risk of transferring money that belonged to
the United States.
    Jenkins timely appealed. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3).
                       DISCUSSION
    The scope of our review in an appeal from a Court of
Federal Claims decision is limited. We review the lower
court’s factual findings for clear error. Columbia Gas
Sys., Inc. v. United States, 70 F.3d 1244, 1246 (Fed. Cir.
1995). A finding is clearly erroneous when, after review-
ing the record, we are left with the “definite and firm
conviction that a mistake has been committed.” Inwood
Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855 (1982)
7                                             JENKINS   v. US


(quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)). In contrast to our review of factual findings,
we review the Claims Court’s legal conclusions without
deference. Columbia Gas, 70 F.3d at 1246.
    Every employer is required to deduct and withhold
federal income tax and Federal Insurance Contributions
Act tax from employees’ wages. See 26 U.S.C. §§ 3012 and
3402(a). Upon deducting those taxes, the employer holds
them in trust for the United States, and the taxes are
generally referred to as “trust fund taxes.” Id. § 7501;
Slodov v. United States, 436 U.S. 238, 243 (1978).
    Section 6672(a) provides a remedy against employers
who fail to remit trust fund taxes to the government. In
pertinent part, the section provides that “[a]ny person
required to collect, truthfully account for, and pay over
any tax imposed by this title who willfully fails” to do so
shall be liable for “a penalty equal to the total amount of
the tax” that the person failed to pay. For the purposes of
the section, a “person” is defined as including “an officer
or employee of a corporation” that is “under a duty to
perform the act in respect of which the violation occurs.”
26 U.S.C. § 6671; Godfrey v. United States, 748 F.2d 1568,
1573–74 (Fed. Cir. 1984). Thus, the section contains two
requirements to impose tax liability: (1) the person must
be a “responsible person,” i.e., a person under a statutory
duty to collect, account for, and pay the trust fund taxes;
and (2) that person must have “willfully” failed to perform
the statutory duty. Id. at 1574.
    On appeal, Jenkins raises a number of arguments re-
garding both requirements. First, Jenkins argues that
despite his CEO and CFO titles, he was not a responsible
person at DDI because his employment duties were to
develop, promote and supervise a campaign of volunteers
for American Voices, not tax collection or payroll. Jenkins
JENKINS   v. US                                          8


argues that because of Puckrein’s conduct, he never truly
owned stock in DDI, his position on DDI’s board of direc-
tors was contested and without effect, and he was unable
to manage daily operations. Jenkins asserts that he was
unable to make decisions regarding the priority payment
of taxes and debts and ultimately was only a DDI credi-
tor. Thus, he argues, it was clearly erroneous to find that
he was a responsible person under § 6672(a).
    We disagree. While Jenkins argues that DDI was ef-
fectively Puckrein’s sole proprietorship, the undisputed
corporate records show that Jenkins was DDI’s CEO and
CFO, controlled at least half of the company’s stock, and
was one of four board members. In addition, he was the
Publisher of American Voices, the primary business of
DDI. It was not clearly erroneous to find that those
positions were not illusory and that Jenkins had the
authority to demand that DDI pay its trust fund taxes.
Indeed, the record below contains evidence that Jenkins
determined the company’s financial policy, convened
board meetings, issued checks in DDI’s name, and di-
rected DDI’s bank not to honor certain checks. Moreover,
he was also DDI’s landlord, guarantor of its debt, and
financier. Thus, the court did not clearly err when it
found that Jenkins was a responsible person under a duty
to collect, account for, and pay the trust fund taxes.
    Regarding the court’s finding that Jenkins acted will-
fully, Jenkins raises three main arguments. First, Jen-
kins argues that because the $16,668.47 of DDI funds
that he paid himself was subject to a lien in his favor, he
did not willfully pay other creditors instead of paying the
government. Second, Jenkins argues that the record
below demonstrates that, at most, he acted negligently
regarding the trust fund taxes, not willfully. According to
Jenkins, the vast majority of the checks he signed on
DDI’s behalf were dated well before he learned that DDI
9                                             JENKINS   v. US


had tax liabilities. Finally, Jenkins argues that, even if
his appropriating the $16,668.47 to himself was a willful
act, he is only liable for that amount, not the full tax
liability assessed by the IRS.
     We disagree. In addition to encompassing a deliber-
ate choice to pay other creditors instead of paying the
trust fund taxes to the government, “[w]illful conduct may
also include a reckless disregard of an ‘obvious and known
risk’ that taxes might not be remitted.” Godfrey, 748 F.2d
at 1577 (quoting Feist v. United States, 607 F.2d 954, 961
(Ct. Cl. 1979)). Jenkins testified at trial that he became
aware in April, 1995 that DDI was delinquent on its trust
fund tax payments, although the record contains docu-
mentary evidence that Jenkins may have been aware of
the issue in 1994. While Puckrein assured Jenkins that
he had remedied the tax issue, Jenkins’ own recollection
of events shows that such a reliance on Puckrein was
unwise at best and it was not clear error to find that
Jenkins recklessly disregarded a known risk that the
taxes might not be remitted. Indeed, “[o]nce a ‘responsi-
ble person’ has had clear notice that the person to whom
he has delegated responsibility for paying the taxes has
wrongfully failed to pay them in the past, he continues to
delegate that responsibility only at his peril.” Thomsen v.
United States, 887 F.2d 12, 19 (1st Cir. 1989). In addi-
tion, the record also contains evidence that after learning
that DDI may have been deficient in paying the trust
fund taxes, Jenkins signed 13 checks on DDI accounts
that were payable to creditors other than the United
States. While Jenkins focuses on the $16,668.47 check he
issued to himself, arguing that those funds were subject to
a lien, Jenkins fails to explain the distribution of the
other funds. And, in any event, the tax code establishes
that the withheld taxes are held by the employer in “trust
for the United States.” 26 U.S.C. § 7501. Finally, in toto,
JENKINS   v. US                                         10


the record contains sufficient evidence that Jenkins’
willful conduct was not solely limited to his appropriating
$16,668.47 from DDI, and, regardless, Jenkins fails to
provide any authority that a responsible person’s liability
is limited to the specific dollar amounts in which the
person chose to benefit someone other than the United
States.
    Ultimately, while we commend Jenkins for attempt-
ing to involve the IRS upon learning that DDI was not
paying the withheld taxes, we cannot hold on this record
that the Court of Federal Claims clearly erred in finding
Jenkins liable for the trust fund taxes. We have consid-
ered Jenkins’ remaining arguments and conclude that
they are without merit. For the foregoing reasons, the
judgment of the Court of Federal Claims is
                      AFFIRMED
