Balzer v. United States

22 F. App'x 942

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 9, 2002
• Docket: No. 00-16564; D.C. No. CV-98-01606-SI
• Status: Published

Opinion

MEMORANDUM

*

While the IRS may have been negligent in failing to file a proof of claim in the Balzer/Shopes, Inc. bankruptcy proceeding for the full amount to which it was entitled, negligence in proposing a claim in Chapter 11 does not amount to an exercise of dominion and control.¹ Other courts have credited taxpayers for IRS error in the contexts of a valid levy under 26 U.S.C. § 6631(a)² and of a levy and notice of seizure under 26 U.S.C. § 6335.³ But even with a levy or seizure in place, the IRS does not necessarily exercise dominion and control merely because it disposes of assets in a manner different from that specified by the taxpayer.⁴ Negligence by the IRS in claiming money in the control of a debtor in possession under Chapter 11 is not the same as dominion and control of the assets. Appellants thus retain their independent tax liability to “pay over” to the IRS the assessed penalty due for their corporation’s withheld employment taxes.⁵ No genuine issue of material fact exists which would render the district court’s grant of summary judgment improper.⁶

We AFFIRM.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . See, e.g., Cash v. United States, 961 F.2d 562 (5th Cir. 1992).

2 . United States v. Pittman, 449 F.2d 623, 628 (7th Cir. 1971).

3 . United States v. Barlows, Inc., 767 F.2d 1098, 1100 (4th Cir.1985).

4 . Cash, 961 F.2d at 568.

5 . See 26 U.S.C. § 6672 (1998).

6 . See Delta Savings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001).