William R. Bare; Rita K. Bare, Husband and Wife,plaintiffs-appellants, v. United States of America, Defendant-appellee, 951 F.2d 1258 (10th Cir. 1991)

ORDER AND JUDGMENT^* 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiffs-appellants William and Rita Bare appeal from a district court order denying their application for attorneys' fees and costs following a jury verdict in their favor. Appellants contend that the district court erred by holding that the government was substantially justified in determining that appellant William Bare was a person responsible under I.R.C. § 6672 for paying over to the government employment taxes owed by Bare's employer, Puma Drilling Corporation ("Puma"). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

After determining that William Bare was a responsible person under § 6672, the government applied the Bares' overpayment of income taxes to offset Puma's nonpayment of employment taxes. Mr. and Mrs. Bare brought this refund suit to recover their overpaid income taxes. The jury determined that William Bare was not a "responsible person" under § 6672, and the district court entered a judgment in favor of the Bares. When the Bares applied for an award of litigation costs and attorneys' fees, the district court held that "the government's position was substantially justified" and denied the application. We review the district court's denial of litigation costs and attorneys' fees based on 28 U.S.C. § 7430(c) (4) (A) (i) under an abuse of discretion standard. Zinniel v. Commissioner, 883 F.2d 1350, 1356 (7th Cir. 1989), cert. denied, 110 S. Ct. 1805 (1990); see also United States v. 2,116 Boxes of Boned Beef, Weighing Approximately 154,121 Pounds, 726 F.2d 1481, 1486 (10th Cir.) (applying abuse of discretion standard when reviewing district court's denial of attorneys' fees and expenses under the "substantially justified" standard of 28 U.S.C. § 2412(d) (1) (A)), cert. denied, 469 U.S. 825 (1984).

We do not disagree with the Bares' contention that Mr. Bare had insufficient corporate authority to be a responsible person under § 6672. The strength of that contention is evident from the result of the jury trial below. However, after reviewing the unrefuted evidence regarding Mr. Bare's position as vice-president of Puma and his check-writing authority, we conclude that the district court did not abuse its discretion in finding that the government was substantially justified in maintaining that Mr. Bare was a responsible person.

AFFIRMED.