Todd v. United States of America, No. 4:2008cv00034 - Document 38 (S.D. Ga. 2009)
Court Description: ORDER denying 19 Motion for Summary Judgment; denying 23 Motion for Summary Judgment.. Signed by Chief Judge William T. Moore on 9/29/09. (wwp)
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Todd v. United States of America Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA 009SEP29 AM 1O:22 SAVANNAH DIVISION KATHY M. TODD, Plaintiff, V. CASE NO. CV408-034 UNITED STATES OF AMERICA, Defendant. ORDER Before the Court are the Parties' Cross-Motions for Summary Judgment. (Docs. 19, 23.) For the reasons that follow, the Parties' Motions are DENIED. BACKGROUND This suit arises from a dispute over a filure to withhold and remit employment taxes to the Unitd States Government by Digital Wireless Communications, ("Digital"), ITER Technologies, Inc. ("ITER'), Northstar Communications, Inc. ("Northstar") . Inc. and (Dc. 1 at 2.) Specifically, the Internal Revenue Service ("IRS") assessed penalties pursuant to 26 U.S.C. § 6672 against Plaintiff Kathy Todd, the Chief Financial Office ('CFO") of these companies. (Id.) Dockets.Justia.com Todd is an experienced certified public ccountant ("CPA") .j (Doc. 21 ¶ 1; Doc. 30 ¶ 1.) Becau e of her training, Todd was generally aware that busin sses are required to withhold and remit certain employment taxes to the IRS and that the failure to do so can result in penalties. 2 (Doc. 21 ¶ 2; Doc. 30 ¶ 2.) In July of 2000, Greg Knowling, President o Digital, hired Todd to serve as CFO for Digital. (Doc. 1 ¶¶ 3-4; Doc. 30 ¶¶ 3-4.) The Parties dispute the duties that Todd performed as CFO. Todd contends that she was never given all of the traditional duties of a CFO (Doc. ¶¶ 3-6), while Defendant contends that Todd performed all of the traditional duties of a CFO (Doc. 21 ¶¶ 3-6). In July of 2001, Computer Network Engineering ("CNE"), a separate company of which Knowling was president, acquired Northstar and Digital. ¶ 7.) (Doc. 21 ¶ 7. Doc. 30 In September 2001, ITER was formed as company for Digital, CNE, and Northstar. a4 umbrella (Doc.li 21 ¶ 7; Doc. 30 ¶ 7.) The Government contends that Todd became the CFO for ITER during the reorganization. (Doc. 21 ¶ 7.) 1 Todd passed the Arizona CPA exam in 1988 and, prior to the year 2000, had 12 years of relevant accounting experience. (Doc. 21 ¶ 1; Doc. 30 ¶ 1.) 2 The Parties contest Todd's knowledge as to the scope of who could be held responsible for these penalties. (Doc. 21 ¶ 2; Doc. 30 ¶ 2.) 2 Todd contests this point. (Doc. 30 ¶ 7.) The further contends that Todd was made part of the rnment ement team," and was responsible for hiring and supervising the accounting staff, making purchasing decisions, decisions with respect to which creditors and pay. making rs to (Doc. 21 111 8, 12.) Todd again contests thse facts. (Doc. 30 It 8, 12.) After the merger, Todd had check-writing authority for Northstar, Digital, and CNE. (Doc. 21 ¶ 9; Doc. 30 ¶ 9.) However, Todd contends that she could only sign checks with approval from Knowling (Doc. 30 IT 10-11), while Defendant contends that Todd had much broader authority (Doc. 21 IT 1011). Further, even though Knowling was in charge of the companies, Todd was responsible for preparing, signing, and filing the companies' tax returns. (Doc. 21 ¶ 14; Doc. 30 ¶ 14.) Additionally, between the fall of 2001 and winter of 2002, Todd was involved with the Small Business Association in an effort to obtain a loan for the companies, although the extent of her involvment is disputed. (Doc. 21 ¶ 20; Doc. 30 ¶ 20.) The companies paid their employees twice month, and Todd determined the amount of money to be withheld and made the payroll tax deposits "with direction." (Doc. 21 ¶ 15; Doc. 30 ¶ 15.) During the third and fourth quarters 3 of 2001, ITER, Northstar, and Digital failed to r mit their payroll taxes. (Doc. 21 ¶ 16; Doc. 30 ¶ 16..) Todd was aware that the payroll taxes were not being paid and prepared reports to her superiors, Knowling and then Cooper, 3 regarding the extent of the liability. (Doc. 21 ¶ 17; Doc. 30 ¶ 17.) Further, Todd continued to sign checks, paying other creditors at the direction o Knowling and later Cooper .4 (Doc. 21 ¶ 17; Doc. 30 ¶ 17.) In January of 2002, Knowling was terminated from his position as president of the companies. Doc. 30 ¶ 21.) had sole (Doc. 21 ¶ 21; After Knowling's departure, Todd briefly check-writing authority, but could not unilaterally pay any debts. (Doc. 21 ¶ 23; Doc. 30 ¶ 23.) In February or March of 2002, Cooper, who was heavily invested in the companies, increased his level of control in order to protect his investments. (Doc. 21 ¶ 22; Doc. 30 ¶ 22.) Defendant and Plaintiff vigorously disagree on Ms. Todd's responsibilities during this time peric1d. 21 ¶11 22-26; Doc. 30 111 22-26.) (Doc. Defendant contnds that Charles Cooper was an investor in the companies who would later take control of the companies to prctect his investments. (Doc. 21 ¶ 22; Doc. 30 ¶ 22.) While Todd disputes the "suggestion that [she]cfarelessly signed payments to other creditors while awar of the outstanding tax liability," she does not dispute that she did, in fact, sign checks paying creditors other than the Federal government at this time. (Doc. 30 ¶ 17.) 4 Todd was responsible for preparing the financial documents for the companies, keeping Cooper apprised regarding the financial status of the companies, and advising ooper on which debts needed to be paid. (Doc. 21 ¶j 22-2 .) Todd alleges that Cooper hired his long-time persbnal and business accountant Karl Schumacher to assistl him in handling the companies' financial situation. ¶11 (Doc. 30 22-26.) Todd further contends that even Cooper admitted that "he and the other male directors wre hardnosed, disagreeable and stepped on Plaintiff's toes" and that "he and the other investors became at-cdds with Plaintiff . . . greatly diminishing her involvenient with the companies." (Id.) Ultimately, Todd resigned her position. (Doc. 21 ¶ 27; Doc. 30 ¶ 27.) Todd contends her resignatioh was due to Cooper's refusal to pay the delinquent payroll taxes. (Doc. 30 ¶ 27.) However, despite her resignation, Todd continued to serve as the CFO until nearly the end of May 2002. (Doc. 24 ¶ 40; Doc. 32 ¶ 40.) In April 002, the IRS began investigating the unpaid payroll taxes, requesting payment from the companies. (Doc. 21 130; Doc. 30 ¶ 30; Doc. 24 ¶ 41; Doc. 32 ¶ 41.) Todd asked her assistant, Ms. Brazell, to prepare a check for thepayroll taxes for Cooper to sign. (Doc. 24 $1 42-45; Doc. 32 5 ¶¶ 42-45.) However, Todd contends that Cooper iefused to sign the check. this statement. (Doc. 24 ¶¶ 42-45.) Defendant contests (Doc. 32 ¶¶ 42-45.) In 2005, the IRS proposed assessing Todd the trust fund recovery penalties at issue, a proposal that Todd appealed. (Doc. 21 ¶ 33; Doc. 30 ¶ 33.) Todd lost the appeal and on August 8, 2007, pursuant to 26 U.S.a. §§ 6661 and 6672 the following assessments were made against Todd: Tax Period Company Amount 3Q 2001 Digital $15,959.01 4Q 2001 Digital $45,572.1 1Q 2002 Digital $20,229.00 2Q 2002 Digital $13,379.81 4Q 2001 ITER $50,718.55 1Q 2002 ITER $45,213.80 2Q 2002 ITER $4,406.29 3Q 2001 Northstar $12,379.4 4Q 2001 Northstar $21,507.26 1Q 2002 Northstar $7,295.41, (Doc. 1 ¶ 7.) Todd then made three separate payments to the IRS of $500, representing the taxes owed for one employee, for one quarter, for each of the conipanies. (Doc. 21 ¶ 33; Doc. 30 ¶ 33.) 6 She then filed claims for refund with the IRS, which were denied. (Doc. 1 Exs. A, B.) Subsequently, she filed suit in this Court seeking a refund. Discovery has completed, and both parties now move for summary judgment in this case. (Docs. 19, 23.) ANALYSIS I. Jurisdiction Jurisdiction is not at issue for most of the tax periods in this case as the Government has consented to suit by filing counterclaims. (Doc. 19.) Howver, the Government contends that, for the three periods nct covered by its counterclaims, 5 this Court lacks subjet matter jurisdiction because "Todd failed to pay at east one employee's estimated tax liability for each individual period and file for an administrative refund." (Id. at 19.) Plaintiff responds that this Court has subject matter jurisdiction because a taxpayer assessed under 6 U.S.C. § 6672 need only pay the estimated payroll taxfor one employee for one quarter for each employer in order to seek a refund. 6 (Doc. 29 at 13.) These periods are March 21, 2002 and June 30, 2002 for Digital Wireless, and June 30, 2002 for ITER. (Doc. 19 at 19.) 6 In this case, it is undisputed that Plaintiff haspaid the tax for one employee, for one quarter, for each employer for which she is asserted to be a responsible party. (See Doc. 1 ¶ 8; Doc. 19.) 7 I A. Full Payment Rule Congress has granted United States distri^t courts original jurisdiction in [a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assess4d or collected, or any penalty claimed to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws. 28 U.S.C. § 1346(a)(1). In the seminal case of Flora v. United States, 362 U.S. 145, 163 (1960) , the Sup eme Court held that this statute rendered district courts tribunal "for post-payment litigation." That is, to maintain a tax suit in federal court the Plaintiff must "p4y first, litigate later." Id. at 170 n.37. However, thlere is an exception to this rule. USLIFE Title Ins. Co. of Dallas ex rel. Matthews v. Harbison, 784 F.2d 1238, 1423 1 n.6 (5th Cir. 1986). Specifically, in the case of a divi ible tax, such as the payroll withholding tax, "a responsible person need only pay the tax attributable to one employee for one quarter in order to maintain a claim for refund." Id. The case law with respect to this exception is sparse. While the Eleventh Circuit has not directly addressed this issue, it has held that a taxpayer need only pay a divisible portion of a 100% penalty assessed under § 6672 to file suit in district court. 8 See Harris V. United States, 175 F.3d 1318, 1319 (11th Cir. 1999) (allowing taxpayer suit where a divisible portion of th § 6672 penalty was paid, but failing to define divisible portion). However, several other Circuits have directly addiessed the issue, consistently holding that, to challenge a 100% l pay the penalty under § 6672, a taxpayer need only l withholding tax of one employee for one quarter tq meet the jurisdictional requirement. See, e.g., In re queen, 16 F.3d 411, *3 (4th Cir. 1994) (table), USLIFE, 7814 F.2d at 1423 n.6, Lighthall v. C.I.R., 948 F.2d 1292, *2 (7th Cir. 1991) (table) , Steele v. United States, 280 F.4d 89, 91 (8th Cir. 1960), Boynton v. United States, 566, F 1i 2d 50, 52 (9th Cir. 1977). Although there is no Eleventh Circuit precedent directly on point, the Court finds thislample out of circuit precedent persuasive, and will apply that rule here. The Government concedes this precedent, but }rushes it away as inapplicable without any explanation (See Doc. 20 at 20 ("[Al taxypayer may pay the taxes attributable to the wages paid to just one employee for one quarter . . . and thereby satisfy the full payment rule. „ )), simply stating that this Court has no jurisdiction because "Todd failed to pay at least one employee's estimated tax liability for each individual period.” (Id. at 20 (emphasis added)). 9 This cursory argument is unsupported by the law as stated above and as set forth in the Government's brief. That is, Todd has satisfied the USLIFE rule by making a p4yment for one employee for one quarter for each company. 784 F.2d at 1423 n.6. Accordingly, Todd's payments are sufficient to establish jurisdiction over the contested periods. B. Claims for Refund The Government advances a second argument with respect to jurisdiction, contending that Plaintiff's f ilure to file a separate claim for refund with respect to each period precludes suit pursuant to 26 U.S.C. § 74 2' and 26 C.F.R. § 301.6402-2(d). 8 (Doc. 19 at 21.) A^ain, the Government provides no explanation for this theory. (Id. at 20-21.) "The requirement for filing a proper refund's claim is designed both to prevent surprise and to give's adequate notice to the Service of the nature of the claim and the specific facts upon which it is predicated, thereby permitting an administrative investigation and determination." Computervision Corp. v. United States, 445 26 U.S.C. § 7422 requires a claim for refund to be filed prior to the institution of a suit for recovery of internal tax revenue. 26 C.F.R. § 301.6402-2(d) requires the filing of a separate claim for refund for separate taxable periods "[i]n the case of income, gift, and Federal unemployment taxes." 10 i F.3d 1355, 1363 (Fed. Cir. 2006) . For this reasor, "formal compliance with the statute and regulations is exused when the informal claim doctrine is applicable." Id. at 1364. 11 [A]n informal claim is sufficient if it is filed within the statutory period, puts the IRS on notice that the taxpayer believes an erroneous tax has been assessed, and describes the tax and year with sufficient particlarity to allow the IRS to undertake an investigation. " 9 PALA, Inc. loyees Profit Sharing Plan & Trust Agreement V. United States, 234 F.3d 873, 877 (5th Cir. 2000) (citiag United States V. Kales, 314 U. S. 186, 194 (1941)) . The cornerstone of this inquiry is whether "it was [1 ascertainable from the file" that a refund was beJing sought for the specific periods. Gustin v. United States Internal Revenue Serv., 876 F.2d 485, 488-89 (5th Cir. 1989)1. Here, the filings clearly satisfy the infor al claim doctrine. "explanation In the section of each refund formi entitled and additional claims-"' and relevant attachments, the periods in question are clearly listed as As there is no dispute that the claims were filed in a timely manner (see Doc. 19), the Court consider only the sufficiency of the filing. ° The Court notes the irony of the IRS requiring Plaintiff to fill out multiple copies of the same form for each refund when the form contains a section indicating that additional claims may be listed on the same form. (Doc. 1, Ex. A.) 11 contested. (Doc. 1, Ex. A, Attach. at 2.) T e filings before the IRS clearly established that Plaintif believed she was entitled to a refund for these, periods, specifically indicating all of these periods in te section "Tax Years Involved." (Doc. 1, Ex. A, Attach. at 2.) Further, the IRS actually acknowledged that Pla i ntiff was contesting her liability, but refused to con ider her challenge because of a procedural formality. (Doc. 1, Ex. B at 1.) Accordingly, the Court finds that the RS was on sufficient notice of the claims under the info^mal claim doctrine and could have launched an investigat i on if it desired to do so." Leeke v. United States, 7371, F. Supp. 1013, 1016-17 (S.D. Ohio 1990) (rejecting the Go^rernment's argument that a separate claim for refund must be filed for each quarter under the informal claim doctrine where the refund filing and its attachments put the IRS on notice of the full extent of the claim for refund) . Therefore, the informal claim doctrine is satisfied. 1• The Court further notes that a contrary holding would eviscerate the ample Circuit Court precedent noted above that establishes that payment for one employee for one quarter is sufficient to lay the groundwork for jurisdiction in a divisible tax case. Under the RS's rule requiring the filing of a specific request for r fund with respect to each period, a Plaintiff would presumably be required to pay the tax for one employee for each quarter to create the basis for the filing of each ref nd form. The Court declines to undercut Circuit Court precedent in this manner. 12 Todd has satisfied the full payment rule and the informal claim doctrine, thereby establishing t e Court's jurisdiction over the contested periods. Accord ngly, the Defendant's Motion challenging this Court's subjct matter jurisdiction is DENIED. II. Summary Judgment Standard Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and adt9ssions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a mattei- of law." Fed. R. Civ. P. 56(c). The "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (quoting Fed. R. Civ. P. 56 advisory icommittee notes) . Summary judgment is appropriate when the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive law governing the action determines whether an element is essential. DeLorig Equip. 13 Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 505 (11th Cir. 1989) As the Supreme Court explained: [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadirgs, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The burden then shifts to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts materi4 to the nonmovant's case. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) The Court must review the evidence and all reasonable factual inferences arising from it in the light most favorable to the nonmovarit. Matsushita, 475 U.S at 58788. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. A mere "scintilla" of evidence, or simply conclusory allegations, will not suffice. See, e.g., Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir. 1998) . Nevertheless, where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue 14 of material fact, then the Court should refuse I to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989) III. Tax Assessments In this case, the IRS assessed Plaintiff with a 100% trust fund recovery penalty under 26 U.S.C. § 6672. Section 6672 provides, in pertinent part, as fo1los: [amy person required to collect, truthully account for, and pay over any tax imposed bythis title who willfully fails to collect such tax, or truthfully account for and pay over such ta, or willfully attempts in any manner to evado or defeat any such tax or payment thereof, shal, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or I not accounted for and paid over. "Person" is defined to include "an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under duty to perform the act in respect of which the violation occurs." 26 U.S.C. § 6671(b). "Section 6672 imposes liability upon (1) a re'sponsib1e person (2) who has willfully failed to perform a duty to collect, account for, or pay over federal eknployment taxes." Thosteson v. United States, 331 F.3d 1294 1 1298-99 (11th Cir. 2003) . Plaintiff contends that as a tj atter of law, she neither was a responsible person, nor willfully 15 failed to perform a duty. (Doc. 23.) Defendant contends that, as a matter of law, Plaintiff both is a responsible person and willfully failed to perform her duties under the tax laws. (Doc. 19.) "A person is responsible within the meaning f § 6672 if he has a duty to collect, account for, or pay cver taxes withheld from the wages of a company's employees. 11 Thosteson v. United States, 331 F.3d 1294, 1299 (11th Cir. 2003) . "Responsibility is a matter of status, duty and authority, not knowledge." F.2d 1008, 1011 George v. United Sttes, 819 (11th Cir. 1987) (emphasis added) "Indicia of responsibility include[] the ho ding of corporate office, control over financial affairs, the authority to disburse corporate funds, stock owneiship, and the ability to hire and fire employees." Thi odeau v. United States, 828 F.2d 1499, 1503 (11th Cii. 1987) However, "Section 6672 responsibility is a matter of the power and authority to make payment of withholditig taxes, which is not dispositively determined by corporate title or position." Thosteson, 331 F.3d at 1299. that is, "[aluthority to pay in this context means effective power to pay." Roth v. United States, 779 F.2d 1567,; 1571-72 (11th Cir. 1986) (emphasis added) . 16 No deep analysis is required to see that t1ere is a serious issue of material fact in this case. I That is, almost everything about Todd's role in the comp4ny is in dispute. 1- 2 Importantly, Todd's effective power to pay is heavily disputed. As Todd's assistant Brazell tesified: A. I've seen a check prepared [to pay a potion of the taxes] on several occasions, but if that's the dollar - what dollar amount that check ws, I don't know. But I have seen checks that were prepared on different occasions that were never signed and were voided. Q. Who would have voided them? A. It would depend on who was there at the time. I know that Greg [Knowling] had askec for one check to voided. He wasn't paying it. The check was printed. He said: No, we're not doing it now. I've got something else I have to take care of first. I know that check was voided under extreme protest, and it was voided. This incident I remember, the check was prepared and Chuck [Cooper] wouldn't sign it. 12 In setting forth the facts it believes to be undisputed, the Government often relies on statements by KnoWling and Cooper as if these statements were given by: neutral, uninterested parties. (Doc. 23.) This is in error. Knowling and Cooper have a substantial interest in Todd loosing this case. As the Government concedes, there is often more than one potentially responsible party for § 6672 liability and the Government does not attempt to recover additional penalties once it has achived 100% recovery. (Doc. 20 n.2.) Even a cursory revie* of this case leads to the conclusion that if the Governmetrlt cannot recover the money from Todd, Knowling and Cooper could potentially be held liable. Accordingly, Knoling and Cooper have every incentive to provide testimony aggrandizing Plaintiff's role in the companies, and their credibility—just as Todd's—is properly an issue for the jury and not this Court. I 17 Q. So that check was voided as well? A. I would assume it was voided. 13 (Doc. 22, Ex. 3, Brazell Dep. at 45-46.) A1 cutting against the Government's case is the undisputed Ifact that Todd was an extreme minority shareholder in the companies. (Doc. 19, Ex. 4, Todd Dep. at 29.) Further, the widely varying accounts of Todd's role in the company serve to show that Todd's role is wholly unascertainablo at this 13 In its brief, the Government seeks to chziracterize Todd's defense in this case as a simple "just following orders" or "Nuremberg" defense. (Doc. 20 at 9-11.) Of course, such a defense is legally insufficienttoto avoid § 6672 liability where one had effective power pay the tax and was heavily involved in the day-to-day perations of the corporation. Roth, 779 F.2d at 1571-7 (citing Brown v. United States, 464 F.2d 590, 591 n.1 (5th Cir. 1972)). However, check-writing authority does not inevitably lead to the conclusion that its possessor has effective power to pay the tax under Roth. Jay v. United States, 865 F.2d 1175 (10th Cir. 1989) (overturning a grant of summary judgment for the IRS, finding that a comptroller who had check-writing authority was not asserting a "Nuremberg" defense where he claimed that his ability to pay was circumscribed by his superior in the corporation and he had little involvement in the day-to-day affairs of the corporation) . In fact, the Jay Court considered Brown and Roth and found them inapplicable to a case suh as this one. See id. This Court finds the Tenth Circuit's construction of these decisions more plausible I than the Government's, which seems to suggest that under Rth checkwriting power would p se establish effective power to pay. Here, taking the facts in the light most faorab1e to the Plaintiff, her ability to pay the tax was cirumscribed by her superiors and she had little involvement in the dayto-day affairs of the corporation. (See Doc. 1, Ex. 4, Todd Dep.; Doc. 19, Exs. 9, 10, Cooper Dep.; Doc. 22, Exs. 3, 4, Brazell Dep.; Doc. 22, Ex. 5, Price. Dep) Given this, summary judgment is inappropriate under 9i 18 stage of the case. 14 ( Compare Doc. 19, Ex. 4, 'odd Dep., with Doc. 19, Ex. 5, Knowling Dep., Doc. 19 Ex. 9, 10, Cooper Dep., Doc. 22 Exs. 3, 4, Brazell Dep., Doc. 22, Ex. 5, Price Dep.) Even the depositions thems4lves are contradictory as to Todd's role. At times theky suggest that Todd possessed broad powers, and at other times they suggest Todd was totally marginalized by the board members and Knowling. ( Compare Doc. 19, Exs. 9, 10, Coop r Dep. at 23 (describing an expansive role for Todd in c ntrolling the companies' finances), with id. at 32 ("I could see where that statement [that Ms. Todd did not have the authority to make the decisions to pay creditors] might be true . . . . I would not disagree with that statement.")). Looking at the evidence in this case, Todd could have been anything from a marginalized figurehead with little authority to a full CFO with the power to pay t1 e taxes .15 14 Indeed, even Knowling and Cooper's roles are not clearly established. Knowling at one point contends that even while he was there, "Charles Cooper really was haldling the monies prior to February 2002; I'd say more like probably (Doc. 19, Ex. 5, Knowling starting in September 2001." Dep. at 29.) 15 Taking the facts in the light most favorab]Fe to the Plaintiff, Todd was a marginalized figurehead with no power to actually pay the taxes, precluding a grant c^f summary judgment for the Government. Jam, 865 F.2d 1175, see supra Background. Taking the facts in the light most favorable to the Government, Todd was a full-fledged CFO with the ability and responsibility to pay the taxes, precluding a grant of summary judgment for Plaintiff. Thoisteson v. 19 1 The only way to determine Todd's role would be to credit the testimony of some witnesses over others. It is a longstanding principle that the job of determ'ning the credibility of a witness is "for the jury alone." Chesap eake & 0. Ry. Co. v. Martin, 283 U.S. 209, 216 (1931). Because the Court cannot determine whether Todd qualifies as a responsible party at this time, the Government's Motion for Summary Judgment is DENIED B. Willfullness Because liability attaches under § 6722 dnly if a person is both responsible and willful, Todd may still be entitled to summary judgment if she can prove that her conduct was not willful as a matter of law. See rhosteson, 331 F.3d at 1298-99. A voluntary, conscious, and intentional act, such as the payment of other creditors in preference to the United States, constitutes willfulness." Brown, 591 F.2c1 at 1140.16 Here, taking the evidence in the light most favorable to the Government, Todd allowed other creditors to be paid instead of making payments to the Federal government. (Doc. 21 ¶ 17; Doc. 36 ¶ 17.) United States, 331 F.3d 1294, 1299 (11th Cir. 2003) , see supra Background. 16 In Bonner v. City of Prichard, 661 F.2d 1206, 209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 20 Therefore, Plaintiff is unable to prove that her actions were not willful as a matter of law. Because Plaintiff is unable to prove that shl e was not a responsible person or that her actions were no willful as a matter of law, her Motion for Summary Judgment is DENIED. CONCLUSION For the aforementioned reasons, the Parties Motions for Summary Judgment are DENIED. Further, the Curt finds that it has subject matter jurisdiction over a4 ten tax periods listed in the Complaint. SO ORDERED this iZ?day of September, 2009. WILLIAM T. MOORE, JR., 4KIEF JUDGE UNITED STATES DISTRICT CORT SOUTHERN DISTRICT OF GEORt3IA 21
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