U.S. v. Hodgekins, s. 92-3496

• Decision Date: 29 June 1994
• Docket Number: Nos. 92-3496,93-2290,s. 92-3496
• Citation: 28 F.3d 610
• Parties: -5197, 94-2 USTC P 50,317 UNITED STATES of America, Plaintiff-Appellant, v. Barry J. HODGEKINS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 610

28 F.3d 610

74 A.F.T.R.2d 94-5197, 94-2 USTC P 50,317

UNITED STATES of America, Plaintiff-Appellant, v. Barry J. HODGEKINS, Defendant-Appellee.

Nos. 92-3496, 93-2290.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 12, 1994.

Decided June 29, 1994.

Gary R. Allen, Kenneth L. Greene, John A. Dudeck, Jr. (argued), Washington, DC, Clifford D. Johnson, Asst. U.S. Atty., South Bend, IN, Douglas W. Snoeyenbos, Peter Sklarew, Dept. of Justice, Tax Div., Appellate Section, Washington, DC, for the U.S. in No. 92-3496.

Ernest J. Szarwark (argued), Gerald F. Lutkus, Stephen A. Seall, Barnes & Thornburg, South Bend, IN, for Barry J. Hodgekins.

Gary R. Allen, Kenneth L. Greene, John A. Dudeck, Jr. (argued), Dept. of Justice, Tax Div., Appellate Section, Washington, DC, Clifford D. Johnson, Asst. U.S. Atty., South Bend, IN, for the U.S. in No. 93-2290.

Before POSNER, Chief Judge, and RIPPLE and MANION, Circuit Judges.

MANION, Circuit Judge.

Barry J. Hodgekins became the treasurer of Josam Manufacturing Co., Inc., in December 1984. In August 1985 the company went bankrupt. The Internal Revenue Service (IRS) then assessed tax penalties in excess of $800,000 against Hodgekins under 26 U.S.C. Sec. 6672 for Josam's failure to pay withholding taxes. Hodgekins filed a protest to this proposed assessment. The IRS agreed to close the case if Hodgekins executed a waiver of the statute of limitations, which allowed the government to reopen the case without the bar of the statute of limitations "in the event refund litigation is initiated and it is decided to interplead potentially responsible parties."

The IRS proceeded to seek tax assessments against another highly placed employee of Josam, Jerrell Barnhill. Barnhill filed suit in the district court challenging these assessments. Over two years later, the IRS sought leave to file a "counterclaim" against Hodgekins in the Barnhill case, even though he was not a party. The district court did not allow this (the IRS never appealed that decision). The IRS then filed a separate action against Hodgekins. He asserted the statute of limitations as an affirmative defense and then made a motion for summary judgment on that basis. The district court granted that motion. In doing so, it interpreted the plain meaning of Hodgekins' waiver of the statute of limitations. The court determined that the waiver did not apply because no interpleader had occurred. The court also awarded Hodgekins $2500 in attorney's fees 832 F.Supp. 1255. The government appeals and we affirm.

I. Background

Josam Manufacturing Co., Inc.--a plumbing supply manufacturer--experienced severe cash flow problems dating back to 1977. It juggled payments with its creditors, paying some immediately, avoiding others, but ultimately paying all. Although cash was tight, the day-to-day operation of the business proceeded normally.

In August of 1984, Josam hired Barry J. Hodgekins to supervise the transfer of the company's production facilities. Hodgekins had no responsibility over financial matters. His job involved the production side of the business. Nevertheless, on December 4, 1984, Hodgekins was named Josam's treasurer. Even though his title changed, Hodgekins' job responsibilities did not; he remained primarily involved in production.

Josam's vice-president, Jerry Barnhill, and its president, Lewis Polster, dealt with the company's financial responsibilities. As Josam's cash flow problems festered, Polster decided which creditors to pay and Barnhill carried out these financial policies. To maintain needed cash, Josam began to postpone payment to the government of federal taxes withheld from employee salaries. Hodgekins learned of Josam's failure to pay its withholding tax obligations during a meeting on July 24, 1985. One week after the meeting, Josam filed a petition for bankruptcy.

Polster stepped down as Josam's president on October 1, 1985, and appointed Hodgekins as his replacement. The IRS began to investigate the company. Section 6672(a) of the Internal Revenue Code allows the IRS to assess a personal tax penalty against anyone who is responsible to pay a company's withholding tax obligations, but willfully fails to do so. On November 25, 1985, the IRS proposed a 100% tax assessment against Hodgekins, in the amount of $544,660.96, for Josam's failure to pay taxes withheld from employee salaries in the second quarter of 1985. About one month later, the IRS proposed another 100% tax assessment against Hodgekins for Josam's failure to pay withholding taxes in the third quarter of 1985. This second assessment totalled $302,526.92.

Hodgekins filed an official protest to these proposed tax assessments. Basically, he took the position that he was not responsible to manage Josam's tax affairs in the second and third quarters of 1985; therefore, he could not be liable for a personal tax penalty under section 6672(a). After receiving his protest, the IRS entered a settlement with Hodgekins, deciding that his case should be closed without assessing any tax liability. As a condition to the settlement, Hodgekins had to execute IRS form 2750 entitled "Waiver Extending Statutory Period for Assessment of 100 Percent Penalty" and IRS form 2751 entitled "Proposed Assessment of 100 Percent Penalty." Form 2750 extended the statute of limitations in Hodgekins' case until April 15, 1994. But form 2751 restricted the method by which the IRS could reopen the case. On the reverse side of form 2751, the IRS purported to close Hodgekins' case, but reserved the right to reopen it only "at the request of the Department of Justice in the event refund litigation is initiated and it is decided to interplead potentially responsible persons." ¹

In the meantime, the IRS directed its attention to Barnhill. The agency proposed a 100% tax assessment against him for Josam's failure to pay its withholding tax obligations. Barnhill mailed the IRS a partial payment, and then demanded a refund of that payment. When the IRS refused, he filed a refund suit in the district court. He sought to litigate not only his entitlement to a refund, but also his responsibility to pay the entire tax penalty. The IRS filed a counterclaim against Barnhill, and also brought a third-party complaint against Lewis Polster contending that he was also responsible to pay Josam's taxes. Two years later--on October 4, 1991--the government filed a motion to amend its pleadings, to bring "a counterclaim" against Hodgekins. Essentially, the government wanted to reopen its case against Hodgekins, to litigate his responsibilities for Josam's tax liabilities.

The district court denied the government's motion for leave to amend its pleadings to bring a counterclaim against Hodgekins. ² The government then initiated a separate case against Hodgekins, seeking a $793,162.96 tax penalty. Hodgekins filed an answer, asserting the statute of limitations as an affirmative defense, and then filed a motion for summary judgment. The government responded that Hodgekins had waived the statute of limitations by executing form 2750. But the district court determined that the waiver in form 2750 was limited by the language on the back of form 2751 which provided that Hodgekins' case could only be reopened "in the event litigation is initiated and it is decided to interplead potentially responsible persons." The district court concluded that the government's lawsuit against Hodgekins was by no means an attempt to interplead, and therefore, that the condition for waiver had not been met. The district court granted summary judgment for Hodgekins, and awarded him $2500 in attorney's fees under 26 U.S.C. Sec. 7430. The government appeals.

II. Analysis

Josam hired Barry Hodgekins in 1984 to supervise the transfer of its production facilities. Less than one year later--after Hodgekins had been given the titles of treasurer and then president--the IRS proposed that he was personally responsible to pay over $800,000 in Josam's tax liabilities. Hodgekins filed a protest, and the IRS withdrew the assessment, conditioned on Hodgekins signing forms 2750 and 2751. In those forms, Hodgekins had to agree to extend the statute of limitations in his case until April 15, 1994, ³ and to allow the IRS to reopen his case if it chose to "interplead" him in a related refund action. On October 25, 1991, the IRS initiated a separate proceeding against Hodgekins. But the district court determined that this proceeding was not in the nature of an interpleader, as that term is commonly understood, and granted summary judgment, as well as attorney's fees, for Hodgekins.

We review de novo the district court's grant of summary judgment. Hamilton v. Komatsu Dresser Indus., 964 F.2d 600, 603 (7th Cir.1992). Summary judgment is authorized if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, we must view the evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

Forms 2750 and 2751 essentially embody an agreement between the government and Hodgekins: the government promised to abandon its hot pursuit if Hodgekins signed the forms. See 26 U.S.C. Sec. 6501(c)(4) (a party can waive the statute of limitations for a tax assessment by a written agreement). This case turns on the significance of those forms. We give effect to the words in the forms according to their plain meaning, because the plain meaning is the best indication of what the parties intended. See Stenclik v. Commissioner, 907 F.2d 25, 27 (2d Cir.1990) (court interprets a written agreement waiving the three-year statute of...