Lauckner v. U.S., 94-5747

Decision Date23 October 1995
Docket NumberNo. 94-5747,94-5747
Citation68 F.3d 69
Parties-6882 Alan K. LAUCKNER v. UNITED STATES of America, Appellant, v. John HUG; Paul E. Costello; Thomas J. Giacomaro; Umberto J. Guido, Jr.; William McGlynn; Leonard A. Pellulo, Counterclaim Defendants.
CourtU.S. Court of Appeals — Third Circuit

Loretta C. Argrett, Assistant Attorney General, Faith S. Hochberg, United States Attorney, Gary R. Allen, Richard Farber, (argued), Sara S. Holderness, Tax Division, United States Department of Justice, Washington, DC, for Appellant.

Paul S. Hollander, Okin, Cohen & Hollander, Fort Lee, NJ and Michael I. Saltzman (argued), Leslie M. Book, Stuart B. Katz, Baker & McKenzie, New York City, for Appellee Umberto J. Guido, Jr.

Present: HUTCHINSON *, ROTH and WEIS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM.

Appellant, the United States of America, appeals an order of the United States District Court for the District of New Jersey holding that an Internal Revenue Service ("IRS") assessment of a penalty against Umberto J. Guido, Jr. ("Guido"), under section 6672 of the Internal Revenue Code (the "Code"), was time barred by the three year statute of limitations contained in Code section 6501(a).

Section 6672 of Title 26 provides:

Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, 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 not accounted for and paid over.

26 U.S.C.A. Sec. 6672 (West Supp.1994). Section 6501(a) of the same title states that "[e]xcept as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed." 26 U.S.C.A. Sec. 6501(a) (West 1989). Because the IRS's section 6672 assessment against Guido was made more than three years after the relevant returns were deemed to have been filed, the District Court held that the IRS's assessment was time barred. The IRS contends the district court erred because no statute of limitations, including the one contained in section 6501(a) of the code, applies to IRS assessments under section 6672. While it admits that it maintained a contrary position for over 30...

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  • Glozman v. Retail, Wholesale & Chain Store Food
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  • In re Prescription Home Health Care, Inc.
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    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
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    ...against Pena will expire in April 2003 (three years after Prescription filed its employment tax returns). See Lauckner v. United States, 68 F.3d 69 (3d Cir.1995). Therefore, if Prescription were to comply with its plan until then, the period for assessing the penalty against Pena would expi......
  • U.S. v. White
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia
    • May 2, 2005
    ...statute of limitations because the government did not properly assess defendant within the applicable time period. Lauckner v. United States, 68 F.3d 69, 70 (3rd Cir.1995) (§ 6672 assessment was time barred because it was made more than three years from date when returns were deemed to have......
  • Snay v. U.S. Postal Service
    • United States
    • U.S. District Court — Northern District of New York
    • November 23, 1998
    ...... Page 96 . "`No, I'll try and if I have [to] I will set up [a] meeting [with] the two of us.'" Compl. ¶ 36. .         In October of 1996, Plaintiff and her sister met with O'Rourke ......
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1 books & journal articles
  • SOL on trust fund recovery assessments.
    • United States
    • The Tax Adviser Vol. 28 No. 5, May 1997
    • May 1, 1997
    ...SOL and that the running of the limitations period is triggered by the filing of the employer's quarterly employment tax return (Lauckner, 68 F3d 69 (1995), aff'g DC NJ., 1994). Recognizing that a majority of the circuits had held against it, the IRS recently announced that it had acquiesce......

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