Braden v. United States, 20821.
| Decision Date | 21 May 1971 |
| Docket Number | No. 20821.,20821. |
| Citation | 442 F.2d 342 |
| Parties | Robert J. BRADEN, Plaintiff, v. UNITED STATES of America, Defendant-Appellee, v. John F. BONISTALL, Third-Party Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John F. Bonistall, in pro. per.
William M. Brown, Tax Division, Dept. of Justice, Washington, D. C., for defendant-appellee; Johnnie M. Walters, Asst. Atty. Gen., Joseph M. Howard, Bennet M. Hollander, Attys., Tax Division, Dept. of Justice, Washington, D. C., on brief; William W. Milligan, U. S. Atty., Columbus, Ohio, of counsel.
Before CELEBREZZE and KENT, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
This action was instituted by Robert J. Braden, the sole owner of a corporation, against the United States to recover amounts paid on a penalty assessed against him for failure to pay over to the United States federal income and social security taxes withheld from the wages of the corporation's employees, in violation of Section 6672 of the Internal Revenue Code of 1954, 26 U.S.C. § 6672 (1964). The Government interpleaded the Appellant, an officer of the corporation during all relevant periods, as a third-party defendant, alleging that he was equally liable, with Braden, for the penalty. The case was tried without a jury; the District Court held in favor of the Government and entered judgment against Braden and the Appellant, 318 F.Supp. 1189. Braden has not appealed the adverse decision; the Appellant has. The sole issue he raises is whether there is sufficient evidence on the whole record to support the District Court's findings.
Section 6672 of the Internal Revenue Code of 1954 provides that any person who is responsible for the collection and payment over of any tax, who "willfully" fails to collect or pay such tax, is liable for a penalty equal to the amount of the unpaid tax.
There is no dispute that during the periods relevant to this case, federal income and social security taxes which had been withheld from the wages of the corporation's employees were not paid over to the United States Treasury. There is a direct conflict in the testimony, however, concerning whether the Appellant was responsible for the payment of the taxes and, if he was, whether his nonpayment was "willful."
Concerning the issue of responsibility for payment, Braden testified that, during the relevant periods, the Appellant was "president and general manager" of the corporation and that "he had the duty, complete duties to take care of everything or see that it was done." By Braden's account, the Appellant had plenary responsibility of all corporate affairs, including the payment of creditors and the power to prefer one over another. The Appellant testified, however, and argues on appeal that he was hired merely as a "general sales manager" with authority merely in product development and marketing. The District Court credited the testimony of Braden and discredited the Appellant's. We cannot say that this credibility determination was improper or incorrect. Rule 52(a), Federal Rules of Civil...
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