Albert A. Alsheskie, Plaintiff-Counter-Defendant-Appellee v. United States of America, Defendant-Counter-Claimant-Appellant

dissenting:

The majority concludes Alsheskie is not a responsible party under § 6672 of the Internal Revenue Code. I disagree. I believe the case law in this and other circuits, when applied to the facts as the district court found them, clearly indicates Alsheskie is a responsible party who willfully failed to pay the taxes owed. He should be subject to the § 6672 penalty.

I

Courts generally look at a wide range of factors to determine responsible person status. An individual is more likely to be considered responsible if he or she (1) holds an office or owns stock in the corporation, (2) manages the day-to-day operations of the business, (3) makes decisions as to disbursement of funds and payment of creditors, (4) has cheek-signing authority, (5) has authority to sign corporate tax returns, and (6) can hire and fire employees. See Denbo v. United States, 988 F.2d 1029, 1032 (10th Cir.1993); Brounstein v. United States, 979 F.2d 952, 954-55 (3rd Cir.1992); Raba v. United States, 977 F.2d 941, 943 (5th Cir.1992). The district court found Alsheskie possessed all of the indicia of responsibility: “Mr. Alsheskie was the titular head of the Corporation, had sole signature authority…

Opinion by Judge FARRIS; Dissent by Judge TROTT.

The district court held that Albert Alshe-skie, president of Lion Manufacturing, Inc., was not liable for penalties assessed against him under 26 U.S.C. § 6672 based on Lion Manufacturing’s failure to pay its 1986 taxes in full. The government appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

The controlling law is settled. The Internal Revenue Code requires certain employers to withhold and pay over federal income taxes and social security taxes from the wages of their- employees. See 26 U.S.C. §§ 3102 , 3402. Section 6672 is one means available to the government to insure that income taxes are withheld and paid over. To incur liability under § 6672, a person must be a “responsible party” who willfully fails to collect and pay over taxes that are due. 1 Purcell v. United States, 1 F.3d 932, 937 (9th Cir.1993). A “responsible party” is one who has the “final word as to what bills should or should not be paid, and when.” Dudley v. United States, 428 F.2d 1196, 1201 (9th Cir.1970). One has the “final word” over what bills should be paid if he has “the authority required to exercise significant control over the…

31 F.3d 837 74 A.F.T.R.2d 94 -5498, 94-2 USTC P 50,387 , Unempl.Ins.Rep. (CCH) P 14030B Albert A. ALSHESKIE, Plaintiff-Counter-Defendant-Appellee, v. UNITED STATES of America, Defendant-Counter-Claimant-Appellant. No. 93-55003. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 1994. Decided July 29, 1994. Gary R. Allen, Richard Farber, Joan I. Oppenheimer, Tax Div., U.S. Dept. of Justice, Washington, DC, for defendant-counter-claimant-appellant. Evelyn J. Gruen, Simi Valley, CA, for plaintiff-counter-defendant-appellee. Appeal from the United States District Court for the Central District of California. Before: FARRIS, O'SCANNLAIN and TROTT, Circuit Judges. Opinion by Judge FARRIS; Dissent by Judge TROTT. FARRIS, Circuit Judge: 1 The district court held that Albert Alsheskie, president of Lion Manufacturing, Inc., was not liable for penalties assessed against him under 26 U.S.C. Sec. 6672 based on Lion Manufacturing's failure to pay its 1986 taxes in full. The government appeals. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 . We affirm. 2 The controlling law is settled. The Internal Revenue Code requires certain employers to withhold and pay over…