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Myers v. United States

United States Court of Appeals, Eleventh Circuit

May 6, 2019

STEVEN J. MYERS, Plaintiff-Counter Defendant-Appellant,
v.
UNITED STATES OF AMERICA, Defendant-Counter Claimant-Appellee.

          Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:16-cv-01792-ELR

          Before TJOFLAT and JORDAN, Circuit Judges, and SCHLESINGER, [*] District Judge.

          PER CURIAM:

         Steven Myers was the CFO and co-president of two companies[1] 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, we affirm.

         I.

         The two 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 receivership.

         Here, 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.

         As 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.[2] In turn, Parent Company's actual general partners, managers, officers, and directors were dismissed. Put simply, the SBA was calling the shots for Parent Company.

         In 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 taxes.

         And so 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 the assessment.

         II.

         Myers 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.

         Myers 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 ...


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