Regardless of the ultimate burden at trial, a deft's reasonably supported assertion that less than the full amount of taxes due was available for use in the company's accounts presents a genuine issue of material fact for trial.
http://www.ca5.uscourts.gov/opinions/pub/17/17-20174-CV0.pdf
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.