Thursday, September 20, 2012

New case on Section 6672 trust fund recovery penalty

Under 26 U.S.C. § 6672(a):

Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.

“[A]n individual is liable under § 6672(a) if he or she: 1) is responsible for paying the taxes and 2) willfully fails to turn over the tax money to the government.”Bell v. United States , 355 F.3d 387, 393 [93 AFTR 2d 2004-369] (6th Cir. 2004). The taxpayer bears the burden of demonstrating that he or she does not satisfy these elements. Kinnie v. United States, 994 F.2d 279, 283 [71 AFTR 2d 93-1979] (6th Cir. 1993). To determine whether an individual is “responsible,” we focus on “the degree of influence and control which the person exercised over the financial affairs of the corporation and, specifically, disbursements of funds and the priority of payments to creditors.” Gephart v. United States, 818 F.2d 469, 473 [59 AFTR 2d 87-1099] (6th Cir. 1987). Factors indicative of responsibility include:

(1)) the duties of the officer as outlined by the corporate by-laws;
(2)) the ability of the individual to sign checks of the corporation;
(3)) the identity of the officers, directors, and shareholders of the corporation;
(4)) the identity of the individuals who hired and fired employees;
(5)) the identity of the individuals who are in control of the financial affairs of the corporation.
Kinnie, 994 F.2d at 283.

BYRNE v. U.S., Cite as 110 AFTR 2d 2012-XXXX, 09/04/2012

ROGER BYRNE, Plaintiff/Counterclaim Defendant, v. UNITED STATES OF AMERICA, Defendant/ Counterclaim Plaintiff-Appellee, ERIC C. KUS, Additional Defendant on Counterclaim-Appellant, BERNARD D. FULLER, Additional Defendant on Counterclaim.
Case Information:

Code Sec(s):      
Docket No.:        Nos. 10-2080, 10-2319,
Date Decided:   09/04/2012.


We agree with the district court that the undisputed facts demonstrate Kus and Byrne were responsible persons under  § 6672(a). In his capacity as Chairman and CEO of Eagle Trim, Kus had the authority to hire and fire other employees, signature authority on Eagle Trim's bank accounts, and the authority to borrow money on Eagle Trim's behalf. As Eagle Trim President, Byrne also had this authority. In addition, Byrne signed federal income and payroll tax returns and his electronic signature was used on employee payroll checks.

Byrne and Kus both contend that they were not responsible because Fuller exercised control over all accounting functions, they were frequently off-site at other facilities, and they reasonably relied on outside professionals to oversee the company's finances. As the district court correctly pointed out, however, “one who possesses significant control over the company's financial affairs may not escape liability by delegating the task of paying over the taxes to someone else.”Id. at 284.

Despite being responsible persons, Byrne and Kus will not be liable under § 6672(a) unless their failure to pay trust fund taxes was willful. Mere negligence is insufficient.Gephart , 818 F.2d at 475. For a responsible person to be deemed willful, he or she must have either “deliberately or recklessly disregarded facts and known risks that the taxes were not being paid[,]” Calderone v. United States, 799 F.2d 254, 260 [58 AFTR 2d 86-5703] (6th Cir. 1986), or “had knowledge of the tax delinquency and knowingly failed to rectify it when there were available funds to pay the government.”Gephart , 818 F.2d at 475. The government does not contend that either Byrne or Kus deliberately failed to pay trust fund taxes. However, the district court found that Byrne and Kus were reckless under two different tests, one utilized by the Third Circuit and the other by the Federal Court of Claims. Under the Third Circuit's test, a responsible taxpayer is reckless when he or she: “(1) clearly ought to have known that (2) there was a grave risk that trust fund taxes were not being paid and (3) was in a position to find out for certain very easily.”United States v. Vespe , 868 F.2d 1328, 1335 [63 AFTR 2d 89-837] (3d Cir. 1989) (quoting Wright v. United States, 809 F.2d 425, 427 [59 AFTR 2d 87-467] (7th Cir. 1987)). The test used by the Federal Court of Claims is satisfied when the responsible person: 1) knows (or should know) of a risk that the taxes will not be paid; 2) has a reasonable opportunity to discover and remedy the problem; and 3) fails to undertake reasonable efforts to ensure payment.Ghandour v. United States , 36 Fed. Cl. 53, 62 [78 AFTR 2d 96-5217] (Fed. Cl. 1996) (citing Hammon v. United States, 21 Cl. Ct. 14, 29 [66 AFTR 2d 90-5256]–30 (1990)).

The district court found that Byrne and Kus acted recklessly because “[they] knew or ought to have known of the risk that [the taxes] were not being paid” since Fuller was untrained in the subject of trust fund taxes and had a previous dispute with the IRS regarding these taxes in 1999. The district court also reasoned that Byrne and Kus had the ability to easily find out whether taxes were being paid as the financial records were kept out in the open and unlocked, but nonetheless failed to actually look at the records or inquire about whether Eagle Trim was current in its tax obligations. However, in finding Byrne and Kus reckless as a matter of law, the district court failed to consider critical facts that would undermine that conclusion. For example, Fuller's 1999 dispute with the IRS was over late payment of taxes, rather than non-payment, and Byrne and Kus were under the impression that there was a bona fide dispute whether the IRS had erred in imposing the penalty. Likewise, Fuller's subsequent tax problem in 2000 involved the payment of trust fund taxes two weeks late, rather than non-payment. Additionally, independent outside auditor WDC issued a clean financial report for Eagle Trim in December 2000 that specifically stated Eagle Trim was current in its tax obligations almost two months before Byrne and Kus became aware about the tax delinquency. Further, Byrne and Kus hired a CFO to supervise Fuller as well as another accountant to assist Fuller, and had WDC provide Fuller with additional training in paying trust fund taxes. Regardless of the test used, these facts show a genuine dispute whether Byrne and Kus should have known that the trust fund taxes were not being paid under these circumstances. Therefore, summary judgment should not have been granted on this basis.

The district court alternatively found that Byrne and Kus acted willfully by choosing to pay other creditors rather than the government upon becoming aware of the tax delinquency. The parties dispute the amount of control that Byrne and Kus had over Eagle Trim's financial affairs under the forbearance agreement. Byrne and Kus argue that after Eagle Trim entered into the lock box arrangement, GMAC controlled all of Eagle Trim's finances. As a result, they did not have the ability to pay the government or any other creditor. During his deposition, Byrne explained how BBK and GMAC refused to disburse payment for payroll taxes:

No one had—within the scope of Eagle Trim no one had the authority to issue any type of payment for anything. My exact words that I was told, and its going to be a little graphic, when I was told about the taxes, and I believe it was Bernie — I believe it was Andy Jones and myself when I believe it was GMAC and BBK advised us that there was an outstanding issue I requested that the taxes be paid. They said they were not going to do that, and I was trying to make a stink. And I was told that they were using the nonpayment of taxes to hold over Eric's head and bust his balls was the exact statement.
Conversely, the government claims that GMAC advanced funds into Eagle Trim's operating account without restriction and Eagle Trim could have used those funds to pay the government. The government also contends that in February 2001, Eagle Trim had between $900,000 and $3 million or more in accounts receivable due to it, which would have been enough to pay the delinquent tax liabilities.

In Bell, we were presented with the question:

whether a debtor's voluntary entrance into a contractual arrangement that restricts the debtor's use of loan advances in a lock-box arrangement encumbers those loan proceeds such that the debtor cannot be said to have failed willfully to meet his or her trust fund obligations because he or she had limited control over the funds.
355 F.3d at 394.

The responsible taxpayer in Bell voluntarily entered into a lock box arrangement with Bank One whereby Bank One issued loan advances to the taxpayer. The parties disputed whether Bank One authorized payment only for certain expenses or disbursed funds without restriction. But, it was undisputed that Bank One deposited money in the taxpayer's account which the taxpayer could withdraw at will. Despite these advances, the taxpayer became delinquent in paying trust fund taxes. At some point, the taxpayer requested an additional loan to pay the past due taxes. Bank One refused on the ground that it had already advanced money to cover this expense. Although the taxpayer continued to withdraw money from three separate accounts to pay other creditors, he did not pay the delinquent taxes. The taxpayer argued that his failure to pay trust fund taxes was not willful because the funds had been “encumbered” by Bank One. We held that voluntary contractual obligations, such as the lock box arrangement at issue, did not encumber funds in such a way that would prevent a willfulness finding. Id. at 396. Rather, only “certain legal obligations, such as statutes, regulations, and ordinances [which] impede the freedom of a company to use its funds to fulfill its trust fund tax debts” could preclude a finding of willfulness.Id.

Relying on Bell, the district court found Kus and Byrne willful because they voluntarily entered into the lock box arrangement with GMAC without negotiating the payment of payroll taxes. The court reasoned that Byrne and Kus should have resigned or shut down the company rather than enter into such an arrangement. The court also found that Eagle Trim obtained funds from GMAC to pay for its operating expenses which it could have used to pay the delinquent taxes instead of other creditors.

Yet, unlike Bell, there is no evidence that Eagle Trim failed to pay trust fund taxes during the term of the forbearance agreement. And, more importantly, when Eagle Trim entered into the agreement, Byrne and Kus were not aware of Eagle Trim's delinquent tax liability. Therefore, Byrne and Kus would have had no reason to negotiate the payment of past due trust fund taxes prior to entering into the forbearance agreement.

Additionally, in contrast to Bell, where the taxpayer arguably received a loan on the condition that certain expenses would be paid but nonetheless could have chosen not to comply and paid the government, it is unclear whether Byrne or Kus ever had a similar opportunity. GMAC vice-president Mark Matheson stated in a declaration that GMAC deposited funds into Eagle Trim's operating accounts but did not control which expenses Eagle Trim paid. However, Pierfelice attested in his affidavit that GMAC and BBK had complete control over the money going in and out of Eagle Trim. According to Pierfelice, BBK would approve an expenditure then arrange for funding of that specific expenditure from GM or GMAC. The money would then be wired to Eagle Trim's accounts and BBK would supervise the disbursement of those funds. Pierefelice attests that because of BBK's supervision it would not have been possible for anyone from Eagle Trim to divert those funds to the government. Based on these competing affidavits, there is a factual dispute about whether Byrne and Kus had any control of the funds received from GMAC and chose to pay other creditors over the IRS or instead lacked control over the funds and the concomitant ability to pay any creditors, including the IRS. Summary judgment was therefore inappropriate. 3


For the foregoing reasons, we reverse the district court's grant of summary judgment in favor of the government and remand for further proceedings consistent with this opinion. (212) 588-1113

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