Anthony J. Holzman, Lee A. Holzman v. United States of America, Defendant-Counter-Claimant-Appellee

30 F.3d 141, 1994 WL 396065

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 29, 1994
• Docket: 93-1346
• Status: Published

Opinion

30 F.3d 141

74 A.F.T.R.2d 94-5850

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Anthony J. Holzman, Lee A. Holzman, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Counter-Claimant-Appellee.

No. 93-1346.

United States Court of Appeals, Tenth Circuit.

July 29, 1994.

Before TACHA and EBEL, Circuit Judges, and ROGERS,** District Judge.

ORDER AND JUDGMENT1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

In this action seeking the refund of an assessment made against plaintiffs under 26 U.S.C. 6672, based upon their failure to collect and pay over to the Internal Revenue Service federal withholding taxes, plaintiffs appeal the district court's decision granting the government's motion for summary judgment. Summary judgment is appropriate only if there are no genuinely disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This court reviews the district court's decision de novo, viewing the evidence in the light most favorable to the nonmoving party. See Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993).

"The 6672 penalty may be assessed against (1)any responsible person (2)who has willfully failed to collect, account for, or pay over federal employment taxes." Id. On appeal, plaintiffs make a number of arguments that fall into essentially three categories: 1) plaintiff Lee Holzman was never a responsible person as defined by 6672; 2) plaintiff Anthony Holzman cannot be considered a responsible person under 6672 after his corporation filed for Chapter 11 bankruptcy relief; and 3) neither plaintiff acted willfully in failing to pay over the withholding taxes.

Upon consideration of the record and the parties' arguments on appeal, we AFFIRM for substantially the reasons stated in the district court's memorandum opinion and order dated August 10, 1993. Plaintiffs' motion to present oral argument is DENIED.

The mandate shall issue forthwith.

** Honorable Richard D. Rogers, United States District Judge for the District of Kansas, sitting by designation

1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470