Horwitz v. United States
| Decision Date | 07 January 1965 |
| Docket Number | Docket 29255.,No. 246,246 |
| Citation | 339 F.2d 877 |
| Parties | Emil HORWITZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Hyman L. Friedman, New York City (Friedman & Friedman, New York City), for appellant.
Bruno Lederer, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, Lawrence Vogel, Asst. U. S. Atty., Joseph Kovner, Atty., Department of Justice, of counsel), for appellee.
Before FRIENDLY, HAYS and MARSHALL, Circuit Judges.
Plaintiff brought an action in the district court for the refund of a 100% penalty assessed and levied against him in the amount of $2,099.14 pursuant to Section 2707(a) of the Internal Revenue Code of 1939.1 The district court found that the plaintiff was the sole active officer, as well as sole owner of the voting stock, of two corporations with retail sales operations in sixteen cities directed from a New York office; that he made all decisions as to payment of corporate bills, including tax liabilities, and that he willfully failed to pay over the income taxes and Federal Insurance Contributions Act taxes withheld from the wages of the corporations' employees for the first quarter of 1951 and the second quarter of 1952. The district court dismissed the complaint for refund of the penalty except to the extent of $90.00 which was conceded to have been erroneously collected. We affirm.
The Government presented sufficient evidence from which the trial court could reasonably find that the plaintiff had knowledge that the withheld tax monies were owed and unpaid and that he preferred other creditors over the Government. The Government also proved, by evidence of plaintiff's conceded day-to-day control, that he was the person responsible for supervising the payment of tax liabilities and that the penalty was correctly assessed against him. See Flan v. United States, 326 F.2d 356 (7th Cir. 1964). The plaintiff who had the burden of proof as to the amount of the assessment failed to show that the amount assessed by the Commissioner was unreasonable. See Bull v. United States, 295 U.S. 247, 260, 55 S.Ct. 695, 79 L.Ed. 1421 (1935); Veino v. Fahs, 257 F.2d 364, 367 (5th Cir. 1958).
The plaintiff's alternative argument — that $551.67 paid to the Government in a Chapter XI proceeding as a dividend toward the Government's claim of $34,330.81 should be credited...
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United States v. Lease
...the evidence that the deficiency was factually incorrect or that the amount paid exceeded the true tax liability. Cf. Horwitz v. United States, 339 F.2d 877 (2d Cir. 1965). We can see no reason why the taxpayer should be in any better position when he takes advantage of none of the availabl......
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Datlof v. United States
...States v. Galtrof, 245 F.Supp. 158, (S.D.N.Y.1965). Accord, United States v. Strebler, 313 F.2d 402 (8th Cir. 1963); Horwitz v. United States, 339 F.2d 877 (2nd Cir. 1965). Hence, when the stipulation of the parties and the attached Forms 899 were received in evidence (Tr. 374), the burden ......
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Spivak v. United States, 62 Civ. 3503.
...predecessor of Section 6672. * *" Bloom v. United States, 272 F.2d at 223. This test was approved in this circuit in Horwitz v. United States, 339 F.2d 877 (2nd Cir. 1965), affirming per curiam Horwitz v. United States, 236 F.Supp. 812 (S.D.N.Y.1964). Moreover, this definition of "willful" ......
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Newsome v. United States
...latter, then (2) whether Newsome carries his burden of proving that the amounts of the assessments are excessive, Horwitz v. United States, 339 F.2d 877, 878 (2 Cir. 1965). ...
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The 100% penalty.
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