Farrington v . USA v . Buker CV-94-108-SD 01/18/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Walter C . Farrington

v.

United States of America Civil N o . 94-108-SD

v.

Scott W . Buker

O R D E R

This order addresses the issues raised by certain pending

pretrial pleadings.

1. Background

In this tax refund suit,

, 1 plaintiff Walter C . Farrington seeks refund of certain federal employment taxes

paid by him for the last three quarters of calendar year 1990.

These taxes were paid in behalf of employees of Veteran Roofing

Corporation, a bankrupt business entity. M r . Farrington claims

he is not a "responsible person" within the meaning of 26 U.S.C.

1

sets forth the rules applicable to the filing of civil suits for federal tax refunds. § 6672, 2 and is not therefore liable for the payment of those

taxes.

The United States has counterclaimed against Farrington and

one Scott W . Buker, contending that they are "responsible

persons"3 under

and are therefore liable for payment of the taxes thereunder. Jury trial is scheduled to

commence with the selection of a jury on January 2 3 , 1996.

2. Defendant's Motion in Limine, document 22

This motion seeks to preclude Farrington and Buker from

including in opening statements, offering in evidence, or in any

way seeking to place before the jury any evidence or argument

2 In pertinent part,

provides, Any person required to collect, truthfully account for, and pay over any tax imposed 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 the other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. 3 Within the meaning of § 6672, a "responsible person" is "one who is required to collect, account for, and pay over the taxes." Thomsen v . United States,

2 , 14 (1st Cir. 1989) (citations omitted).

2 that the United States was obliged to collect its tax liabilities

under

from Veteran Roofing or some other

individual. Turning to proposed Farrington Exhibit 6, a

collection of documents concerning certain construction

projects,4 the United States contends such to be irrelevant

insofar as the documents are proffered to show that the United

States could have collected the employment tax liability from the

corporation in or prior to its bankruptcy.

It is well established that the liability imposed by

is separate and distinct from the employer's

liability for trust fund taxes. Bradley v . United States,

0 7 , 710 (2d Cir. 1991). Accordingly, compromise of a claim

against a bankrupt corporation does not serve to release the

responsible persons from their direct liability under the

statute. Spivak v . United States,

1 2 , 616 (2d C i r . ) ,

cert. denied,

(1967).

The burden placed on Farrington and Buker requires each of

them to prove either that he was not a responsible person or that

the failure to pay the tax was not willful. United States v .

4 Farrington Exhibit 6 is described as "correspondence between Veteran Roofing Corp. and ProCon Construction, Inc., regarding various jobs, including in particular the Clock Tower project subcontracted by ProCon to Veteran (to show why ProCon was not paying Veteran Roofing)."

3 Rexach,

0 , 17 (1st C i r . ) , cert. denied,

(1973); IRS v . Blais,

0 0 , 705 (D. Mass. 1985).

This burden is not met by proof that another, such as the

corporate employer, was in a position to pay the taxes. Indeed,

a taxpayer may not enjoin collection attempts made under

on the ground that collection should first be had

from the corporate employer. Kelly v . Lethert,

(8th Cir. 1966). Accordingly, the motion in limine is herewith granted, and Farrington and Buker are herewith precluded from including in their opening statements, offering in evidence, or in any way seeking to comment or argue to the jury that the United States was obliged to collect its tax liabilities from Veteran Roofing or some other party or parties.

3. Defendant's Objection to Certain Exhibits and Witnesses,

document 23

The United States first notes in its objection that,

pursuant to its motion in limine, Farrington Exhibit 6 is

irrelevant. For the reasons set forth in the ruling on said

motion, this objection is herewith granted.

4 The United States next objects to the documents detailed in

Farrington Exhibit 8 5 on the ground that such exhibits are

irrelevant. This objection is one of merit, for "willfulness"

within the meaning of

"denotes intentional,

knowing and voluntary acts" and/or "a reckless disregard for

obvious or known risks." Thomsen v . United States, supra,

7 . Accordingly, liability under this section of the

statute does not depend upon the presence of bad motive or the

specific intent to defraud the government or deprive it of

revenue.

(quotations and citations omitted).

As a "reasonable cause" or "justifiable excuse" defense is

unavailable under

, Harrington v . United States,

(1st Cir. 1974), the proffered documents are

irrelevant to the issues to be litigated. The objection is

accordingly sustained.

The United States also objects to any testimony from the

proposed witnesses John Samenfeld and Barbara Linde because M r .

Farrington failed to disclose their identities in response to

interrogatories filed by the United States. As of this late

5 Farrington Exhibit 8 comprises "correspondence between Veteran Roofing Corp. and ProCon Construction, Inc., regarding various jobs, including in particular the Clock Tower project, subcontracted by ProCon to Veteran (to show why ProCon was not paying Veteran Roofing)."

5 date, insufficient time is available for the United States to

complete discovery with respect to these witnesses and,

accordingly, the objection is sustained.

4. Conclusion

For the reasons outlined, the court has granted the motion

in limine filed by the United States (document 2 2 ) , and has also

sustained the objections of the United States to certain exhibits

and witnesses (document 2 3 ) . The case is now in order to proceed

forward as scheduled with jury selection on January 2 3 , 1996.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

January 1 8 , 1996

cc: All Counsel

6