STEVEN J. MYERS, Plaintiff-Counter Defendant-Appellant,
UNITED STATES OF AMERICA, Defendant-Counter Claimant-Appellee.
from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:16-cv-01792-ELR
TJOFLAT and JORDAN, Circuit Judges, and SCHLESINGER, [*] District Judge.
Myers was the CFO and co-president of two
companies that failed to pay trust fund taxes. Under
26 U.S.C. § 6672(a), the IRS may recover unpaid taxes
against "[a]ny person required to collect, truthfully
account for, and pay over any tax" "who willfully
fails to collect such tax." The IRS concluded that Myers
was liable under § 6672(a) and assessed the
companies' trust fund penalties against him. Myers paid
some of the penalties and then sued the Government for a
refund. The Government filed a counterclaim for the balance
of the penalties, and both parties moved for summary
judgment. The District Court granted summary judgment in
favor of the Government. After the benefit of oral argument,
companies that Myers worked for were owned by another company
("Parent Company"), and Parent Company was licensed
by the U.S. Small Business Administration (the
"SBA") as a Small Business Investment Company (the
"SBIC"). The SBA guarantees debentures that SBICs
issue and has the power to place those SBICs into
Parent Company violated the terms of its license, so the SBA
filed suit in the Southern District of New York to place
Parent Company into receivership. See United States v.
Avalon Equity Fund, L.P., No. 1:08-cv-7287 (S.D.N.Y.,
filed Aug. 18, 2008). Under an agreed-to Consent Order, the
Southern District of New York placed Parent Company in
receivership. Per the Consent Order, the Southern District of
New York took "exclusive jurisdiction" of Parent
Company and "all of its assets, and the Court appointed
the SBA as Parent Company's receiver.
Parent Company's receiver, the SBA was given "all
powers, authorities, rights and privileges . . . [enjoyed] by
the general partners, managers, officers and directors"
of Parent Company. In turn, Parent Company's actual
general partners, managers, officers, and directors were
dismissed. Put simply, the SBA was calling the shots for
2009, the companies that Myers worked for failed to pay trust
fund taxes. During this time, Myers was the CFO and
co-president, and he had signature authority on the
companies' bank accounts. Parent Company was in
receivership-meaning the SBA was calling the shots-when the
companies that Myers worked for failed to pay their trust
fund taxes. Thus, according to Myers, the SBA's agent
told him to prioritize other vendors over the trust fund
he did. Myers knew the trust fund taxes were due, and he
didn't pay them. But he did approve payments to these
more critical vendors. Eventually, the IRS assessed the trust
fund tax penalties against Myers, and he paid a portion of
sued for a refund, and both parties eventually moved for
summary judgment. Rejecting Myers's
my-boss-told-me-not-to-pay argument, the District Court
granted summary judgment in favor of the Government.
appealed. "On appeal from a grant of summary judgment,
this Court reviews legal questions de novo."
Al-Rayes v. Willingham, 914 F.3d 1302, 1306 ...