In re Sanders

156 B.R. 854, 7 Fla. L. Weekly Fed. B 195, 1993 Bankr. LEXIS 1066, 1993 WL 284972
CourtUnited States Bankruptcy Court, N.D. Florida
DecidedMay 17, 1993
DocketBankruptcy Nos. 88-02252, 88-02274
StatusPublished

This text of 156 B.R. 854 (In re Sanders) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sanders, 156 B.R. 854, 7 Fla. L. Weekly Fed. B 195, 1993 Bankr. LEXIS 1066, 1993 WL 284972 (Fla. 1993).

Opinion

FINDINGS OF FACT AND CONCLUSIONS OF LAW

LEWIS M. KILLIAN, Jr., Bankruptcy Judge.

THIS CAUSE was heard before the Court on the objection of Harry Sanders, a debtor-in-possession (the “Debtor”), to the claim of the United States relating to the non-payment of federal diesel fuel excise taxes. For the reasons stated herein, the Court grants, in part, and denies, in part, the debtor’s objection to claim.

At issue in this objection to claim is the liability for unpaid federal excise taxes in the amount of $43,234.05 arising from the sale of fuel through a debtor controlled truck stop under the responsible person statute. The responsible person statute holds an officer or employee liable for any tax, penalty and interest due by a corporation if that person was responsible for collection of the tax and willfully fails to pay [856]*856over the tax to the government.1 At the commencement of the trial before this Court, the parties stipulated that the Debt- or was a responsible party for purposes of § 6672. Accordingly the only remaining issue to be resolved by the Court is whether the Debtor possessed the requisite willfulness to give rise to responsible person liability.

The United States argues that the Debt- or cannot avoid liability for the non-payment of excise taxes by delegating the responsibility for the calculation, collection and remittance of those taxes to subordinates. The government also asserts that the Debtor had sufficient knowledge of the problems associated with the management and operation of the business to give rise to a duty to investigate and correct those problems. His failure to so investigate and correct, according to the government’s cited authority, constitutes reckless disregard and thereby give rise to responsible person liability. The Debtor asserts that he had no actual knowledge of the non-payment of excise taxes until August 1987, and upon learning of their non-payment, he undertook all reasonable business measures to ensure their then prompt payment. Accordingly, the Debtor asserts he lacked the willfulness required for § 6672 responsible party liability.

The factual situation underlying the present dispute involves a truck stop located in Bonifay, Florida. Title to the business was held by Sumpin’ Else Truck Plaza, a Florida corporation wholly owned by the Debtor.2 In a manner similar to the rest of his varied business interests3, the Debtor monitored and maintained control of the truck stop’s operations by a combination of an on-site manager, review of daily operating reports and periodic meetings with key personnel, and reviewing and signing all disbursement checks issued on the business operating accounts. This last management control device is significant to this cause in that the Debtor approved all monies disbursed by the truck stop upon review of checks and accompanying invoices prepared by on-site managers.

The truck stop never produced an annual profit since its acquisition by the Debtor in either 1984 or 1985. The Debtor also indicated that he had frequently injected personal resources to ensure the operation’s continued vitality.4 In late 1986, the Debt- or became aware of inventory losses, and as a result, fired the then manager, a Mr. Stevens. Between Mr. Stevens dismissal in December 1986 and its closure in September 1987, the truck stop went through several management changes. In early April 1987, the truck stop’s accounting system underwent a major conversion from a computer based system to a manual system. Although monthly financial statements were not immediately available, the Debtor continued to receive and review daily operating reports as well as copies of invoices with the prepared checks.

Testimony at trial indicated the Debtor first became aware of a potential problem in early June 1987 when he was informed by the Internal Revenue Service’s local Panama City office that an excise tax return for the first quarter of 1987 ending March 31 had not yet been filed. In re[857]*857sponse the Debtor hired an experienced accountant, Camilia Roth, to examine the truck stops records. Preparation of a first quarter return indicated an excise tax liability of about $9,000. A check in that approximate amount was prepared by a subordinate, signed by the Debtor and filed with the government on or about August 6, 1987. Upon further review of the truck stop’s records, it was discovered in late July that a second quarter excise tax return had also not been filed. The second quarter return was subsequently prepared reflecting a liability in the amount of $38,-572.35, and was also filed on or about August 6, 1987. A third quarter excise tax return reflecting a $4,661.70 liability was prepared and filed on or about October 20, 1987. The Debtor closed the operations of the truck stop in September 1987. In June 1987, the Debtor signed fifteen checks to-talling $14,168.25 for the payment of excise taxes which, for some unexplained reason, were never presented for payment against the truck stop’s checking account.

Once it is established that a party is a responsible party pursuant to § 6672, the burden of proving lack of willfulness is on the taxpayer. Mazo v. United States, 591 F.2d 1151, 1155 (5th Cir.1979); Thibodeau v. United States, 828 F.2d 1499, 1505 (11th Cir.1987). Willfulness sufficient to give rise to responsible person liability under § 6672 may be shown in either of two methods. First, willfulness can be demonstrated if the responsible person can be shown to have made payments to other creditors after he became aware of the failure to remit the trust fund taxes to the government. Thibodeau, 828 F.2d at 1506; Smith v. United States, 894 F.2d 1549, 1553 (11th Cir.1990). Willfulness may also be shown by demonstrating the responsible person acted with a reckless disregard of a known or obvious risk that trust fund taxes may not be remitted to the government. Thibodeau, 828 F.2d at 1505; George v. United States, 819 F.2d 1008, 1011 (11th Cir.1987).

At the start of the trial, the parties agreed that the Debtor had directed the corporation in September 1987 to remit $8,507.61 to himself for partial repayment of personal advances after learning of an unpaid excise tax liability. This payment in light of a known unpaid excise tax liability by the responsible party satisfies the first method of demonstrating willfulness under § 6672, and therefore the Debtor is liable to the government for this amount. The balance of the Court’s inquiry focuses upon whether the Debtor acted in reckless disregard of his responsibilities to ensure payment of federal excise taxes.

The Court finds the Debtor acted with reckless disregard to a known or obvious risk of nonpayment of excise taxes for the second and third quarters of 1987. Ample testimony was presented at trial of the truck stop’s financial and managerial difficulties. In addition to the continuing operating losses and periodic cash infusions, the Debtor was aware of and involved in the decision to replace managers and accountants throughout the period in question. The Debtor reviewed daily operating reports and participated in frequent meetings held to review the truck stop’s operations.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chester I. George v. United States
819 F.2d 1008 (Eleventh Circuit, 1987)
John A. Thibodeau v. United States
828 F.2d 1499 (Eleventh Circuit, 1987)
James C. Smith v. United States
894 F.2d 1549 (Eleventh Circuit, 1990)
Mazo v. United States
591 F.2d 1151 (Fifth Circuit, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
156 B.R. 854, 7 Fla. L. Weekly Fed. B 195, 1993 Bankr. LEXIS 1066, 1993 WL 284972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sanders-flnb-1993.