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Barnett v. I.R.S. (In re Barnett) (Case No. 04-01283; A.P. No. 06-05022) 4/1/2008

The issue before the Court is whether the debtor, who was president of a company, was a "responsible person" of that company, and therefore, personally liable under 26 U.S.C. § 6672 for the company's unpaid trust fund taxes.  "Trust fund taxes" are federal income taxes and social security taxes that employers are required to withhold from their employees’ wages pursuant to 26 U.S.C. §§ 3402(a) and 3102(a).  To be held liable under Section 6672, two elements must exist: “(1) the party assessed must be a person required to collect, truthfully account for, and pay over the tax, referred to as a ‘responsible person’; and (2) the responsible person must have willfully failed to insure that the withholding taxes were paid.” O’Connor v. United States, 956 F.2d 48, 50 (4th Cir. 1992).  The Court applied the standard in United States v. Pomponio, 635 F.2d 293 (4th. Cir. 1980) to determine whether debtor was a responsible person or whether his failure to pay the taxes was not willful, and held that the weight of the evidence proved the debtor was not a responsible person at the company and therefore not personally liable for the failure to pay the trust fund taxes to the I.R.S.

Date: 
Tuesday, April 1, 2008
Category: 
Adversary Proceedings
Tax Issues
Chapter: 
11