Mazzeo v. United States

131 F.3d 295, 39 Collier Bankr. Cas. 2d 38, 84 A.F.T.R.2d (RIA) 6469, 1997 U.S. App. LEXIS 34025
CourtCourt of Appeals for the Second Circuit
DecidedDecember 3, 1997
DocketNos. 93, 94, Docket Nos. 96-5141(L), 96-5149
StatusPublished
Cited by9 cases

This text of 131 F.3d 295 (Mazzeo v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mazzeo v. United States, 131 F.3d 295, 39 Collier Bankr. Cas. 2d 38, 84 A.F.T.R.2d (RIA) 6469, 1997 U.S. App. LEXIS 34025 (2d Cir. 1997).

Opinion

KEARSE, Circuit Judge.

Plaintiff Salvatore J. Mazzeo appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, affirming an order of the United States Bankruptcy Court for the Eastern District of New York, Dorothy Ei-senberg, Judge, which dismissed his petition filed under Chapter 13 of the Bankruptcy Code (“Code”), 11 U.S.C. § 1301 et seq. (1994). The district court ruled that Maz-zeo’s noneontingent, liquidated, unsecured debts included sums Mazzeo owed defendant United States with respect to his own income taxes' and sums that Mazzeo’s corporate employer had not paid defendant State of New York (“State”) for employee withholding taxes, for which Mazzeo may be held responsible, and that the amount of those debts exceeded the statutory limit set forth in 11 U.S.C. § 109(e) (1994) for eligibility to proceed under Chapter 13. On appeal, Mazzeo contends that his debts to the defendant governments for withholding taxes are contingent and unliquidated, and that his non-contingent liquidated debts do not exceed the limit set by § 109(e). Finding no merit in his contentions, we affirm.

I. BACKGROUND

Most of the pertinent facts are undisputed. During 1993 and 1994, Mazzeo was president of Westfield Financial Corporation (“West-field” or the “company”); he was also, in the words of his attorney, a “significant” minority shareholder. During that period, West-field filed quarterly returns with the Internal Revenue Service (“IRS”) and the State’s Department of Finance. On those returns, an employer is to report the amounts it has withheld from its employees’ wages pursuant to its statutory obligations, see 26 U.S.C. § 3402 (requiring withholding for federal income tax); id. § 3102 (requiring withholding of tax imposed by Federal Insurance Contributions Act (“FICA”)); N.Y. Tax Law § 671(a) (McKinney Supp.1997) (requiring withholding for State income tax). The employer is also required to state the extent, if any, to which it has remitted the withheld funds to the relevant federal or state taxing authority. The forms state that the signer, to the best of his knowledge and belief, certifies that the information shown on the return is “true, correct and complete.”

Quarterly returns filed by Westfield with the State for 1993 and part of 1994 showed that the company had withheld various amounts for State income tax. For the four quarters of 1993 and for the first and third quarters of 1994, the total withheld was $404,492.88. (The record is silent with respect to the other two quarters of 1994.) Each return showed that there were no payments or credits toward the indebtedness, and it is undisputed that these moneys were never paid. The returns were signed by Mazzeo, who thereby certified their correctness.

Westfield also filed quarterly tax returns with the IRS. Its federal return for the first quarter of 1994, signed by Mazzeo under oath, showed the total taxes the company owed the federal government for that period, of which $340,724.93 constituted amounts withheld from employees’ wages for federal income tax and FICA. It is undisputed that the withheld amounts were never paid to the United States.

If an employer does not pay withheld taxes as required, both federal and State law impose responsibility for payment on individuals who could have caused the employer to pay those taxes (“responsible-person” liability). The Internal Revenue Code imposes personal liability for such unremitted withholding taxes upon “[a]ny person required to collect, truthfully account for, and pay” the tax, who “willfully fails” to pay it. 26 U.S.C. § 6672(a). Under this section, the responsible individuals include all persons who are “connected closely enough with the business to prevent the [tax] default from occurring,” Fiataruolo v. United States, 8 [299]*299F.3d 930, 939 (2d Cir.1993) (internal quotation marks omitted); see Hochstein v. United States, 900 F.2d 543, 546 (2d Cir.1990) (all who “have the authority to direct the payment of corporate funds”), cert. denied, 504 U.S. 985, 112 S.Ct. 2967, 119 L.Ed.2d 587 (1992); and “[w]illfully” means simply that the nonpayment of the withheld funds to the government was “voluntary, conscious and intentional — as opposed to accidental,” Kalb v. United States, 505 F.2d 506, 511 (2d Cir.1974) (internal quotation marks omitted), cert. denied, 421 U.S. 979, 95 S.Ct. 1981, 44 L.Ed.2d 471 (1975). The State imposes similar individual liability for a company’s failure to pay the withheld sums due the State. See N.Y. Tax Law § 685(g) (McKinney 1987) (imposing responsible-person liability); id. § 607(a) (McKinney 1987) (generally adopting federal income-tax-law interpretations for State income-tax-law provisions); Levin v. Gallman, 42 N.Y.2d 32, 33-34, 396 N.Y.S.2d 623, 624, 364 N.E.2d 1316 (1977) (federal definition of “willfully,” as used in 26 U.S.C. § 6672, adopted with respect to N.Y. Tax Law § 685(g)).

On September 22, 1995, the State sent Mazzeo a notice of deficiency in the amount of $381,451.99 for Westfield’s unpaid withholding taxes with respect to 1993 and the first and third quarters of 1994, asserting that Mazzeo, Westfield’s president, was a responsible person with respect to those taxes. The State apparently arrived at that amount “by taking the amount of tax due on each of the withholding tax returns signed and filed by Mazzeo and adding these amounts together to arrive at a total tax due of $381,451.99.” (State brief on appeal at 11.) Under New York law, the notice of deficiency, unless contested by the filing of a petition for redetermination, was to become an assessment after 90 days. See N.Y. Tax Law §§ 681(b), 689(b) (McKinney 1987). No payment need be made in order to file a petition for redetermination. See generally id. § 689(b). After the notice ripens into an assessment, the State is permitted, on 10-days’ notice, to levy on and sell property of the taxpayer to satisfy the tax debt. See id. §§ 681(b), 692 (McKinney 1987). The last day of the 90-day period following the State’s mailing of its September 1995 notice of deficiency to Mazzeo was December 21, 1995. On December 21, 1995, rather than filing an objection to the notice of deficiency, Mazzeo filed for protection under Chapter 13 of the Bankruptcy Code.

In his Chapter 13 petition, Mazzeo listed his total assets as $4,800 and his total liabilities as $237,000.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
131 F.3d 295, 39 Collier Bankr. Cas. 2d 38, 84 A.F.T.R.2d (RIA) 6469, 1997 U.S. App. LEXIS 34025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazzeo-v-united-states-ca2-1997.