In re Woodson

15 B.R. 185, 1981 Bankr. LEXIS 2622, 49 A.F.T.R.2d (RIA) 520
CourtDistrict Court, E.D. Michigan
DecidedNovember 6, 1981
DocketBankruptcy No. 79-90619-P
StatusPublished
Cited by1 cases

This text of 15 B.R. 185 (In re Woodson) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Woodson, 15 B.R. 185, 1981 Bankr. LEXIS 2622, 49 A.F.T.R.2d (RIA) 520 (E.D. Mich. 1981).

Opinion

OPINION AND ORDER

DAVID H. PATTON, Bankruptcy Judge.

The controversy before the Court involves a Chapter XIII proceeding filed in March of 1979 by Thelma L. Woodson. In September of that year the Internal Revenue Service (hereinafter “IRS”) filed a proof of claim against Thelma Woodson in the amount of $35,414.28.1 The IRS alleges that Thelma Woodson owes the government that amount for withholding and social security taxes which were not remitted to the government during the fourth quarter of 1977 and the first, second, and third quarters of 1978.2 In addition, the IRS seeks to impose a 100% penalty in the amount of the unpaid taxes.3 Thelma Woodson has objected to the IRS claim for taxes and penalty-

The IRS bases its claim upon I.R.C. § 6672. Section 6672 provides in pertinent part:

Any person required to collect, truthfully account for, and pay over any tax [187]*187imposed 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 for a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.

Two factors are required by the provision before liability could properly attach. First, the individual must have been a person required to collect, account for, and pay over the taxes in question. Second, if the first requirement is met, then the failure to collect, account for, and pay over the taxes must have been a “willful” failure. If either one of these factors is not present, no liability for the unpaid taxes attaches. Braden v. United States, 318 F.Supp. 1189 (S.D.Ohio 1970), aff’d 442 F.2d 342 (6th Cir. 1971), cert. denied sub nom. Bonistall v. Braden, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971); Anderson v. United States, 561 F.2d 162 (8th Cir. 1977); Lawrence v. United States, 299 F.Supp. 187 (N.D.Tex.1969); Sherman v. United States, ■ 490 F.Supp. 747 (E.D.Mieh.1980).

The term “responsible person” is a term of art and the courts have set forth various tests and criteria to aid in the determination of responsibility for payment of taxes under § 6672. For example, in Braden, supra, at 1194, the district court set forth five factors which looked to the duties performed and not merely the position held by the individual. These factors are: (1) the job description detailed in the corporation’s articles or by-laws; (2) the authority to sign corporate checks; (3) the titles held; (4) the power to hire and fire employees; and (5) the actual control of the entity’s financial affairs. The United States Court of Appeals described the same five factors in a more simple and succinct manner in Wilson v. United States, 250 F.2d 312, 316 (9th Cir. 1958). The Wilson court stated that the test is whether the person “had the final word as to what bills should or should not be paid, and when.” See Anderson, supra; White v. United States, 372 F.2d 513, 516 (Ct.C1.1967); United States v. Graham, 309 F.2d 210, 212 (9th Cir. 1962).

The tests for § 6672 responsibility do not automatically arrive at a finding of the required responsibility simply upon the determination of status as a corporate officer. Taubman v. United States, 499 F.Supp. 1133, 1137 (E.D.Mich.1978), aff’d sub nom. United States v. Intercontinental Industries, Inc., 635 F.2d 1215 (6th Cir. 1980). Liability attaches only to those with the power to make decisions concerning payment of creditors and disbursal of funds. In Campbell v. Nixon, 207 F.Supp. 826, 829 (E.D.Mich.1962) the court was confronted with the situation of a vice-president of a corporation who rarely visited the corporate offices and had no authority to make financial decisions. The Campbell court concluded that “[t]he mere holding of corporate office does not ipso facto make for personal liability on the part of the officer.” This position was dealt with more fully in Monday v. United States, 421 F.2d 1210 (7th Cir. 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). The court held:

Corporate office does not, per se, impose the duty to collect, account for and pay over the withheld taxes. On the other hand, an officer may have such a duty even though he is not the disbursing officer.... Liability attaches to those with power and responsibility within the corporate structure for seeing that the taxes withheld from various sources are remitted to the Government.... This duty is generally found in high corporate business affairs who participate in decisions concerning payment of creditors and disbursal of funds. Id. at 1214-15.

Thus, the Monday court held, at 1215, that a corporate president was a responsible person under § 6672 because of extensive participation in financial decisions and not merely because of corporate status.

As stated previously, bare status as a corporate officer, is without more, insufficient to satisfy the requirements of § 6672. In addition, the simple act of signing a few corporate checks, without more, [188]*188does not meet the standards for § 6672 responsibility. Barrett v. United States, 580 F.2d 449 (Ct.C1.1978) dealt with a woman who was completely dominated by her husband. The husband would direct plaintiff to sign certain checks to creditors which he had chosen and in amounts he had determined. The Barrett court held, at 453, that “[t]he fact that plaintiff signed company checks is not in and of itself sufficient to justify liability under section 6672.” Where the right to sign corporate checks is nothing more than a formality, responsibility for unpaid taxes will not fall on the signatory. Lawrence, supra, at 191.

The power and authority to make fiscal decisions and responsibility for payment of taxes may be delegated. The delegation issue was examined in Lawrence, supra. In that case, the petitioner appointed an attorney and accountant to deal with the financial matters of the corporation which she controlled. The court held her responsible in spite of her appointment of the attorney and the accountant as she had retained significant control over fiscal matters during the period in question. For delegation to be complete, the court stated that the following must be established:

[H]e or she did not have ultimate control during the period involved.

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Related

United States v. Woodson (In re Woodson)
28 B.R. 991 (E.D. Michigan, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
15 B.R. 185, 1981 Bankr. LEXIS 2622, 49 A.F.T.R.2d (RIA) 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-woodson-mied-1981.