Taylor v. United States (In re Taylor)

155 B.R. 543, 1993 Bankr. LEXIS 939, 72 A.F.T.R.2d (RIA) 5569
CourtUnited States Bankruptcy Court, N.D. Oklahoma
DecidedJune 22, 1993
DocketBankruptcy No. 86-03503-W; Adv. No. 90-0278-C
StatusPublished
Cited by2 cases

This text of 155 B.R. 543 (Taylor v. United States (In re Taylor)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taylor v. United States (In re Taylor), 155 B.R. 543, 1993 Bankr. LEXIS 939, 72 A.F.T.R.2d (RIA) 5569 (Okla. 1993).

Opinion

MEMORANDUM OPINION

STEPHEN J. COVEY, Bankruptcy Judge.

This matter comes on to be heard upon the Cross-Motions for Summary Judgment filed by Donald P. Taylor (“Debtor”) and the United States of America ex rel. the Internal Revenue Service (“IRS”). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Upon review of the briefs of the parties and the applicable law, the Court finds as follows.

UNDISPUTED FACTS

1. On February 11, 1985, the IRS sent a letter to Debtor regarding unpaid withholding taxes of Delta Cattle, Inc. Attached to the letter was Form 2751, Proposed Assessment of 100 Percent Penalty, which lists the date the 941 tax return was filed, the date the tax was assessed, the specific [544]*544quarterly tax periods and the unpaid balance and penalty amount for each tax period. The penalty for the nine quarters listed totalled $117,162.26. Because the taxes had not been paid by the corporation, the IRS planned to assess a penalty against Debtor as a responsible person under 26 U.S.C. § 6672 for the total amount due. The letter directed Debtor to agree to the proposed assessment or to contact the IRS within ten days from receipt of the letter. If no response was received by the IRS within 30 days, the penalty would be assessed.

2.On March 8, 1985, Debtor sent a letter of protest to the IRS in response to its February 11, 1985 letter. In his letter, Debtor restated the specific quarterly tax periods and the respective amounts involved for each period. As grounds for his protest, Debtor argued that he was not a responsible person under § 6672 and therefore could not be assessed a penalty.

3.On March 11, 1985, the IRS mailed to Debtor Form 2749, Request for 100 Percent Penalty Assessment. This document identifies the assessment date as March 18, 1985 and lists the quarterly tax periods for which penalty assessments were due and the specific amount for each tax period as follows:

Period Ended Unpaid Balance Trust Fund Portion of Outstanding Balance
Dec. 31, 1981 $12,201.94 $ 12,301.94
March 31, 1982 27.875.86 17,244.04
June 30, 1982 24,837.43 17,767.94
Sept. 30, 1982 20.543.87 15,476.51
Dec. 31, 1982 14,457.21 13,403.86
June 30, 1983 1,405.00 644.04
Sept. 30, 1983 15,196.38 10,266.26
Dec. 31, 1983 . 25,276.49 16,678.37
March 31, 1984 16,783.48 13,596.26
Total $117,162.26

The form was signed and dated by a revenue officer but not by a SPI reviewer.

4.On March 18, 1985, the IRS made an assessment against Debtor pursuant to § 6672(a) for 100 percent penalty for failure to pay withholding taxes. The IRS’s penalty assessment is documented by Form 4340, entitled “Certificate of Assessments and Payments.” This document reflects that a penalty assessment was made against Debtor on March 18, 1985, as follows:

Explanation of Transactions Assessment 23C Date Period Ending
Penalty Assessment $117,161.16 03-18-85 12-31-81-
12-31-82,
06-30-83-
03-31-84

5.A tax lien filed in Tulsa County against Debtor reflects that Debtor has been assessed $117,162.26 by the IRS for the tax period ending March 31, 1984.

6. On September 24, 1990, Debtor filed for relief under Chapter 7 of the Bankruptcy Code.

7. On May 5, 1992, this Court held that Debtor was not a responsible person and [545]*545therefore could not be held liable for the unpaid withholding taxes.

8. On March 16,1993, the United States District for the Northern District of Oklahoma reversed this Court and found that Debtor was a responsible person of Delta Cattle and that he had willfully failed to collect and pay over the employment taxes owed to the federal government.

9. On April 8, 1993, on a motion to alter or amend judgment filed by Debtor, the District Court entered an order remanding the matter to this Court to determine whether the IRS “properly assessed” Debt- or for the employment taxes at issue.

ISSUE

The issue before the Court at this time is whether Debtor, who has been held to be a responsible officer of Delta Cattle and who willfully failed to see that the corporation paid its employment taxes, has been properly assessed these taxes and is therefore liable for them.

ARGUMENT

Debtor’s principle argument is that the IRS’s penalty assessment under 26 U.S.C, § 6672(a) as evidenced by Form 4340 is invalid because it does not set forth the amounts due separately for each quarter. Debtor points out that under § 6671 and § 6665 of the Internal Revenue Code, penalties must be assessed in the same manner as taxes. It is agreed by the parties that withholding taxes must be assessed against a corporate taxpayer on a quarterly basis with the amount stated separately for each quarter. Debtor contends that by logical deduction a penalty attributable to an unpaid withholding tax must be assessed in the same manner. Debtor argues that the penalty in this case was not assessed in quarterly amounts but was assessed in one lump sum attributable to nine specific quarters. Therefore, Debtor argues he is not liable for the penalty but acknowledges that this is a very technical argument.1

In response, the IRS contends that while the underlying withholding tax against the corporation is by law reportable, payable and assessable on a quarterly basis, there is no such requirement with respect to the § 6672 penalty. Rather, § 6672 merely provides that a responsible party is liable for “a penalty equal to the total amount of the tax ... not accounted for and paid over.” [emphasis added]. The statute is not phrased in terms of quarterly periods but rather in terms of one penalty covering the total amount of all unpaid withholding taxes.

CONCLUSIONS OF LAW

Under the Internal Revenue Code, employers are required to withhold from the wages of employees income and social security taxes and to hold these taxes in trust for the IRS. 26 U.S.C. §§ 3102, 3402, 7501. Because the IRS is required to credit employees for the withheld taxes even if the employer fails to pay the taxes, the Code provides for imposition of 100 percent penalty against responsible persons of the corporation who willfully failed to see that the withholding taxes were paid. 26 U.S.C. § 6672.

Penalties incurred under § 6672 are to be assessed and collected in the same manner as taxes.

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

Related

Taylor v. United States
172 B.R. 980 (N.D. Oklahoma, 1994)
Teets v. United States
29 Fed. Cl. 697 (Federal Claims, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
155 B.R. 543, 1993 Bankr. LEXIS 939, 72 A.F.T.R.2d (RIA) 5569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-united-states-in-re-taylor-oknb-1993.