United States of America v. Hartman
AMENDED OPINION & ORDER Granting Plaintiff's Motion for Summary Judgment (Dkt. 21 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,
Case No. 16-11002
Hon. Mark A. Goldsmith
JON R. HARTMAN,
AMENDED OPINION & ORDER
GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Dkt. 21)1
Plaintiff United States of America
brought this action to hold Defendant John R.
Hartman personally liable for his company’s failure to remit payroll taxes. Following discovery,
the Government moved for summary judgment (Dkt. 21). After briefing on the motion was
complete, this Court held a hearing on May 4, 2017.
For the reasons stated below, the
Government’s motion is granted.
Hartman was 50% co-owner and Chief Executive Officer (“CEO”) of Spectrum Tool &
Design, Inc., while the company operated from April 2001 to October 2005. Pl. Statement of
Following the issuance of the original opinion and order in this case (Dkt. 28), the Government
advised this Court that the opinion included a citation to a case that had been overruled after
briefing on the motion was completed and the hearing was held (Dkt. 29). See 7/26/2017 Op. &
Order at 12-13 (citing Byrne v. United States, No. 06-12179, 2015 WL 4642845, at *2 (E.D.
Mich. Aug. 4, 2015), vacated and remanded, 857 F.3d 319 (6th Cir. 2017)). This Court ordered
supplemental briefing on the import of Byrne (Dkt. 30), and it has received and reviewed each
party’s brief (Dkts. 31, 32). Because a judgment has yet to issue adjudicating the particular
rights and liabilities of all of the parties, this Court exercises the authority granted to it by
Federal Rule of Civil Procedure 54(b) to revise its previous order. As noted below, the July 26,
2017 opinion is vacated.
Material Facts (“SMF”) ¶ 1, Pl. Br. at 6. Dan Ott was 50% co-owner and Chief Operating
Officer (“COO”) from April 2001 until Hartman laid him off in August 2005. Id. ¶¶ 1, 17. Both
Hartman and Ott had authority to handle money for Spectrum, open and close bank accounts in
its name, and sign checks. Id. ¶ 3.
Generally, Hartman signed employees’ paychecks, see id. ¶ 5, whereas Ott prepared the
payroll tax deposit checks, see Def. SMF ¶ 3, Def. Resp. at 4 (Dkt. 22). Until December 2003,
Spectrum used a third-party payroll service provider, ADP, to process its paychecks. Def. SMF
¶ 5. This involved (i) providing the necessary payroll information to ADP (hours worked, hourly
rates, etc.); (ii) waiting for ADP to calculate gross payroll, including employment taxes; (iii)
furnishing ADP the gross amount of monies due, including taxes; and (iv) receiving unsigned
paychecks from ADP, which Hartman would sign and distribute to employees. See Pl. SMF ¶ 5.
ADP would remit payroll taxes to the Government. Hartman admitted that he was the one
responsible for paying ADP. Id. (citing Hartman Dep. Tr. at 78 (Dkt. 21-2)).
In December 2003, Spectrum was unable to remit the full amount of gross payroll
(including taxes) due to ADP, and ADP terminated the contract. Id. ¶ 6. Notably, Spectrum was
able to pay employees their net payroll during this period, meaning that Spectrum was unable to
remit the gross payroll due to its inability to remit the payroll tax portion. Id. ¶ 10. Hartman
testified that he knew, in December 2003, that Spectrum could not timely pay its payroll taxes,
but he testified that he and Ott anticipated that they would be able to pay back the shortfall in
January or February 2004. Id. (citing Hartman Dep. Tr. at 114-115). After being dropped by
ADP, Spectrum began using an in-house software system for handling payroll, at Ott’s behest.
The Government outlines how Hartman would “juggle” non-tax bills and decide which
creditors would be paid timely, versus who could wait. Id. ¶ 8. Hartman maintains that Ott was
the sole person entrusted to ensure that Spectrum paid its employment taxes. Id. ¶ 9; see also
Def. SMF ¶ 3 (“Mr. Ott prepared the payroll and payroll tax deposit checks.”).
Notwithstanding the problem with ADP, which was caused by an inability to remit that
portion of gross payroll attributable to payroll taxes, Hartman contends that he did not learn that
Ott was routinely failing to pay the payroll taxes until July 2004 — at which time he arranged a
meeting with the IRS to discuss the shortfalls. Pl. SMF ¶ 11; see also Hartman Dep. Tr. at 92:79 (“Q. And [July 2004 was] when you first realized that employment taxes were not being paid?
A. That is correct.”). Hartman described independently discovering accounting irregularities in
the in-house software; getting “nosy,” and going through Ott’s desk, where he discovered that
Ott had not been paying the taxes. See Hartman Dep. Tr. at 91. Up until that point, Hartman
claims that Ott “was cutting them [i.e., creating payroll tax checks] regularly,” leading Hartman
to “think [Ott] was paying those.” Id. at 90:22-25.
At the first meeting with the IRS, Hartman says that the IRS told him to focus on staying
current and then “try to get the back ones caught up.” Pl. SMF ¶ 11. Spectrum could not stay
current, however, necessitating another meeting with the IRS in October 2004. Id. ¶ 12.2
At the October 2004 meeting, “Mr. Hartman discovered that Mr. Ott had not been
keeping up with Spectrum’s current taxes.” Def. SMF ¶ 13. Hartman speculated that, although
some taxes were paid between July and October 2004, they were applied to the oldest delinquent
quarters. See Hartman Dep. Tr. at 131. He also claimed that, during that period, Spectrum’s in
On pages 121-122 of his deposition, Hartman testified that payroll taxes were never withheld
from his employee’s paychecks. This doesn’t appear to factor into either party’s analysis. Nor
should it; whether the taxes were deducted and misspent, as opposed to not being deducted at all,
is a distinction without a difference. See also Kinnie v. United States, 994 F.2d 279, 283 (6th
Cir. 1993) (“[T]he taxes that were, or should have been, withheld are credited to the employee
even if they are never remitted to the government; so the IRS has recourse only against the
employer for their payment.” (quoting Mazo v. United States, 591 F.2d 1151, 1153 (5th Cir.
1979)) (emphasis added).
house accounting software reflected that the payroll tax checks were being cut. Id. at 135:2325.3 Hartman acknowledges that, at that meeting, he signed tax returns (“Form 941”) for
quarterly periods ending December 31, 2003 through September 30, 2004. Pl. SMF ¶ 13; see
also Forms 941, Ex. B to Pl. Mot (Dkt. 21-3). One more Form 941 — covering the quarter
ending December 31, 2004 — also appears in the Government’s Exhibit B, but it was signed on
January 10, 2005, at a different meeting. Hartman alleges that, notwithstanding his signature,
Ott prepared the returns. See Def. SMF ¶ 13 (citing Hartman Dep. Tr. at 150:12-151:5); see also
Hartman Dep. Tr. at 157. Hartman claims that he was “just signing papers that had to be
signed,” and that he did not review the returns, understand them, or pay attention. Hartman Dep.
Tr. at 160:6-21.
The Government asserts that “[a]ll five of the employment tax returns for these periods,
which were signed by Mr. Hartman, reflected that the taxes had not been paid.” Pl. SMF ¶ 14
(citing Forms 941). In fact, defense counsel objected to a similar proposition made by the
Government’s counsel at Hartman’s deposition, pointing out that the first three tax returns do not
report a balance due.
In January 2005, Spectrum filed for Chapter 11 bankruptcy protection. Pl. SMF ¶ 19. In
monthly reports to the trustee, Hartman reported that Spectrum had not paid its post-petition
taxes from March through July 2005. Id. ¶ 21; see also Bankruptcy Reports, Ex. D to Pl. Mot.
(Dkt. 21-5); Def. SMF ¶ 21 (admitting the Government’s assertion in pertinent part).
Hartman also attaches 10 weekly checks for payroll tax deposits, which were cut by Ott and
made payable to Standard Federal Bank (which would hold the monies in deposit). Only 3 of 10
checks are stamped “paid.” See Ex. 3 to Pl. Resp. (Dkt. 22-4).
Hartman testified that, beginning in March 2005, he began having “weekly
conversations” with Ott regarding their “joint decision to pay the employees but not the taxes.”
Hartman Dep. Tr. at 132:21-133:25.
In May 2005, an IRS Revenue Officer interviewed Hartman, which interview was
documented on a Form 4180. See Form 4180, Ex. G. to Pl. Mot. (Dkt. 21-8). Hartman signed
the Form 4180 acknowledging that he examined the information on the form and that it was true.
See also Hartman Dep. Tr. at 144:17-146:18. On the form, Mr. Hartman admitted, among other
things, that he “[d]etermine[d] financial policy for the business”; “[d]irect[ed] or authorize[d] the
payment of bills”; “[a]uthorize[d] or sign[ed] payroll checks”; and “[a]uthorize[d] or ma[de]
Fedearl Tax Deposits.” Form 4180 at 3. He indicated that he did not “[p]repare, review, sign,
[or] transmit payroll tax returns.” Id. He admitted that he first became aware of the delinquent
taxes in December 2003, and that while the delinquent taxes were increasing, he authorized the
payment of certain of Spectrum’s other financial obligations, including payroll, utilities, rent,
supplies, operating expenses, loan payments, and equipment leases. Id. at 4.4
Hartman laid off Ott in August 2005 for performance issues. Pl. SMF ¶ 17. Hartman
testified that, even after he fired Ott, he still used Ott to pay Spectrum’s employment taxes. See
Hartman Dep. Tr. at 31:25-32:3.
Hartman purports to object to the admission of the Form 4180, stating that it was prepared by
the “self-serving” Revenue Officer, and that he signed it “without counsel and under duress.”
See Pl. SMF ¶ 24. Hartman’s response brief cites neither evidence nor a Federal Rule of
Evidence in support, however, and his deposition testimony does not support this assertion. In
fact, the opposite is true. As opposed to his testimony concerning the Form 941, in which he
stated that he did not read the form, when asked about the Form 4180, Hartman simply
acknowledged that it was his signature and that the Revenue Officer likely asked him to review
the form before signing. See Hartman Dep. Tr. at 145-146.
On October 24, 2005, Harman filed, on behalf of Spectrum, a notice of conversion from
Chapter 11 (reorganization) to Chapter 7 (liquidation). See Pl. SMF ¶ 23. Following an
investigation, the Government assessed the trust fund liabilities at issue in this case. See id. ¶ 25.
II. STANDARD OF DECISION
On a motion for summary judgment, “facts must be viewed in the light most favorable to
the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550
U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“If an assessment [under § 6672] is made against a corporate officer, the burden of proof
by a preponderance of the evidence is on the officer to show that he was not a responsible person
or that he did not act willfully.” Cline v. United States, 997 F.2d 191, 194-195 (6th Cir. 1993)
(citing Calderone v. United States, 799 F.2d 254, 258 (6th Cir. 1986) (quoting Sinder v. United
States, 655 F.2d 729, 731 (6th Cir. 1981))). It does not matter who brings the suit. See Sinder,
655 F.2d at 731 (“[T]he taxpayer has the burden of showing that he was not a responsible party
on both the refund claim and the counterclaim.” (Emphasis added.)). Stated differently, in the
context of a § 6672 claim, “the adverse consequences from [a] lack of evidence should [be]
borne” by the taxpayer. Id. at 732. This burden differentiates this case from a typical motion for
summary judgment, in which the movant must establish an absence of genuine disputes of
material fact to prevail (even if the non-movant is silent).
Nevertheless, if Hartman can produce evidence to show a genuine issue of material fact
as to whether he can overcome the presumption that the Government’s assessment is correct, this
suffices to spare him from summary judgment. See, e.g., Lewis v. United States, 336 F. App’x
535, 538 & n.1 (6th Cir. 2009). In other words, even if the Government fails to definitively
prove a necessary element, it will still prevail — unless Hartman creates a fact question using his
All evidence must still be considered in the light most favorable to the
nonmoving party. See Kinnie v. United States, 994 F.2d 279, 282 (6th Cir. 1993).
Title 26 U.S.C. § 6672(a) 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 . . . be liable to a penalty equal to the total
amount of the tax evaded, or not collected, or not accounted for
and paid over.
The law imposes personal liability on such corporate officers so long as they are “under a duty”
to pay the wrongfully diverted taxes. See 26 U.S.C. § 6671. Accordingly, § 6672 liability
requires the Government to prove that the defendant “[i] is a person ‘responsible’ for paying the
taxes and [ii] ‘willfully failed’ to pay the taxes due.” Noronha v. I.R.S., 352 F. App’x 18, 19
(6th Cir. 2009) (emphasis and brackets added).
A. Hartman was “Responsible”
“Whether one is considered a person responsible for paying over such taxes to the
government under [§] 6672 is a question ‘focusing upon the degree of influence and control
which the person exercised over the financial affairs of the corporation, and, specifically,
disbursements of funds and the priority of payments to creditors.’” Kinnie, 994 F.2d at 283
(quoting Gephart v. United States, 818 F.2d 469, 473 (6th Cir. 1987)). The list of factors used to
consider whether a party is “responsible” includes:
1. the duties of the officer as outlined by the corporate by-laws;
2. the ability of the individual to sign checks of the corporation;
3. the identity of the officers, directors, and shareholders of the
4. the identity of the individuals who hired and fired employees; and
5. the identity of the individuals who are in control of the financial
affairs of the corporation.
Id. “Moreover, liability requires the existence of only significant as opposed to absolute control
of the corporation’s finances.” Id. (emphasis added). “‘Generally, such a person is one with
ultimate authority over expenditure of funds since such a person can fairly be said to be
responsible for the corporation’s failure to pay over its taxes, or more explicitly, one who has
authority to direct payment of creditors.’” Id. (quoting Gephart, 818 F.2d at 473).
Hartman was a responsible person under the statute; he has not created a fact question on
It is undisputed that, in practice, Hartman had no responsibilities related to calculating or
paying the payroll taxes (whether via in-house accounting software or the weekly IRS remittance
schedule). Nor does the Government dispute that Ott maintained this duty even after he was laid
off in May 2005. It is further undisputed that Hartman had the authority to pay the payroll taxes
if he wished to do so.
Nevertheless, Hartman is responsible. Kinnie is illustrative. There, as here, there were
two 50/50 co-owners. Kinnie, 994 F.2d at 281. The taxpayer-defendant was Kinnie; his partner
was Blinstrub. Blinstrub, the company’s president, ran the company on a day-to-day basis;
Kinnie, the vice president, maintained that he was only a “passive investor.” Blinstrub testified
that the company failed to pay its taxes so that the company could continue operations. The tax
delinquencies appeared on the year-end reports, “which were provided to Blinstrub.”
Invoking his status as a passive investor, Kinnie argued that he was not a “responsible person”
under § 6672. The Sixth Circuit rejected this argument, stating:
[U]ncontested facts exist which show that Kinnie was a
“responsible person” under the statute. Kinnie does not dispute
certain facts such as: he was a vice-president and 50 percent
shareholder of EMTS during all the quarters that EMTS failed to
pay withholding taxes, he had authority to sign checks on behalf of
EMTS, he had an accountant review the books for possible
diversion of corporate funds in March 1987, and he forced
Blinstrub to leave the corporation and ultimately shut down EMTS.
Id. at 284. The Sixth Circuit also flatly rejected Kinnie’s defense that he had “delegated” the
duty to pay the taxes to Blinstrub, stating that “there may be more than one person deemed a
‘responsible person’ within a corporation” and “one who possesses significant control over the
company’s financial affairs may not escape liability by delegating the task of paying over the
taxes to someone else.” Id. In closing, the court stated:
During the quarters at issue and thereafter, Kinnie possessed the
status, duty, and authority necessary to be a responsible person
under [§] 6672, as evidenced by his title, his stock ownership, his
check writing authority, and his ability to force Blinstrub out of the
business and close down EMTS. The fact that Kinnie did not
always exercise his powers during the quarters at issue does not
absolve him of his responsibility.
Every single basis for finding Kinnie to be a “responsible person” is present here.
Hartman possessed the same title, ownership interest, check-writing authority, and ability to
The quarters at issue in Kinnie were “the last quarter of 1985, the first three quarters of 1986,
and the second quarter of 1987.” 994 F.2d at 282. Thus, the fact that Kinnie hired an accountant
in March 1987 appears relevant only to the fact that Kinnie was, generally speaking,
Kinnie also cited with approval a First Circuit case, in which the treasurer and 45% shareholder
was held “responsible” even though he “had never handled the day-to-day operation and had no
direct involvement at all with the corporation during the quarters at issue.” Kinnie, 994 F.2d at
284 (citing Thomsen v. United States, 887 F.2d 12, 16-17 (1st Cir. 1989)).
force his co-owner out of the business as Kinnie did.7
And, just as Kinnie was able to
commission an inspection of the books to see if his partner was misappropriating funds, Hartman
initiated meetings with the IRS upon discovering that the accounting balances didn’t add up. In
fact, Hartman had more responsibility and involvement than the taxpayer in Kinnie, assuming
the duties of handling payroll and payments to non-IRS creditors.
And, finally, Hartman
presents the same defenses that were rejected in Kinnie: that it was Ott’s job to handle the taxes,
and Hartman was unaware of the deficiencies until after the fact. Accordingly, Kinnie controls.
Hartman is a “responsible person” under the statute.8
B. Hartman Acted Willfully
“Willfulness is present if the responsible person had knowledge of the tax delinquency
and knowingly failed to rectify it when there were available funds to pay the government.”
Gephart, 818 F.2d at 475. “More than mere negligence is required for ‘willfulness’; a person is
not ‘willful’ if as a result of negligence he is unaware of the default in the payment of payroll
taxes . . . . But willful conduct may also include ‘a reckless disregard for obvious or known
Hartman also had (and exercised) authority to unilaterally force layoffs of lower-level
employees. See Hartman Dep. Tr. at 111:15-24 (“I pushed some people out the door in ‘05. . . .
I didn’t ask, I just did it.”).
See also Noronha, 352 F. App’x at 19-20 (plaintiff was liable as “responsible person” because
she (i) was 50% shareholder, (ii) had check-writing authority, (iii) had “treasurer/secretary”
titles, and (iv) control over financial affairs, evidenced by filing income tax return and calling
meeting to discuss tax deficiencies); Gephart, 818 F.2d at 474 (non-officer plaintiff was liable as
“responsible person” because he (i) was responsible for ordinary day-to-day administrative and
operating functions of the business; (ii) had authority to sign checks with no monetary limit; (iii)
dealt with the company’s creditors and suppliers; (iv) had authority to negotiate regarding tax
liability with the State of Michigan, and (v) had responsibility to sign and distribute net payroll
checks). Both Noronha and Gephart further support the Government’s position. In addition to
his ownership interest, check-writing authority, and contact with non-IRS creditors, Hartman
exercised authority to call meetings to discuss the tax deficiencies; and, as shown by his
participation in the July and October 2004 meeting with the IRS, he had authority to negotiate
with the IRS.
risks . . . .’” Calderone, 799 F.2d at 259-260 (quoting Bolding v. United States, 565 F.2d 663,
672 (Ct. Cl. 1979)).
“The responsible party need not exhibit an intent to defraud the IRS or some other evil
motive; all that is necessary to demonstrate willfulness is the existence of an intentional act to
pay other creditors before the federal government.” Bell v. United States, 355 F.3d 387, 393 (6th
The Government makes two arguments in the alternative: (i) Hartman knew that the
taxes were not being paid, but continued to pay operating expenses; and (ii) Hartman recklessly
disregarded a known or obvious risk that employment taxes were not being paid. This Court
holds for the Government on its second argument, i.e., that Hartman recklessly disregarded an
obvious risk that the taxes were not being paid, and it declines to reach the first.
In Harold v. United States, the Sixth Circuit held that there was no question of material
fact whether the taxpayer willfully failed to remit the taxes, largely on the basis that the taxpayer
was indisputably aware that the company was having tax problems. The court stated:
Appellant knew that Harold’s Market’s payroll tax deposits were
sometimes late. Because of prior problems at [a different store not
at issue], he understood the importance of submitting payroll taxes.
He knew that the IRS sends out notices when payroll taxes are not
paid, and he admitted receiving and paying such notices. He at
times applied “personal accounts, general accounts, anything it
took to get them paid.” He acknowledged that he was at times
“aware that federal tax deposits were not being made.”
Appellant by his own admission “did nothing” to ensure that the
IRS was in fact fully paid . . . even though he generated more than
enough liquidation proceeds to pay the bill. Instead, he “assumed”
that others would take care of it.
Harold v. United States, 195 F. App’x 358, 365 (6th Cir. 2006).
Hartman became fully aware of Ott’s deception in July 2004. See Hartman Dep. Tr. at
91:1-92:9 (describing Hartman’s discovery of accounting irregularities and his subsequent search
of Ott’s desk, during which he discovered checks that were cut but not remitted). Yet Hartman’s
[D]uring the fourth quarter of 2004, [Hartman] could see reports
that showed that Mr. Ott had been cutting checks payable to the
IRS for employment taxes as was required by Revenue Officer
following the October 2004 meeting. It was not until later that Mr.
Hartman discovered that most of these checks were never remitted
to the IRS.
Def. Resp. at 20 (emphasis added). Thus, Hartman attempts to establish that he had no idea that
Ott was cooking the books — and, therefore, that Hartman had no reason to exercise oversight of
Ott — until the fourth quarter of 2004 or “later.” But the record evidence shows that Hartman
discovered Ott’s fishy accounting during the previous quarter. Hartman claims that, despite the
events of July 2004, he continued to trust Ott to pay the taxes until October 2004, after which he
learned, again, that the taxes were not being remitted. Yet, again, he placed his trust in Ott and
declined to exercise any oversight of Spectrum’s accounting. See Def. Resp. at 8 (“Following
the October 2004 conference, Mr. Hartman was led to believe that Mr. Ott would follow IRS
Hartman’s conduct constitutes reckless disregard. In Byrne v. United States, 857 F.3d
319, 331 (6th Cir. 2017), the Sixth Circuit identified three factual scenarios in which a finding of
willfulness can be based on reckless disregard. Two of these are particularly apt here: (i)
“[r]eliance upon the statements of a person in control of the finances when the circumstances
show that the responsible person knew the person to be unreliable”; and (ii) “failure to
investigate or to correct mismanagement after having notice of nonpayment of withholding
taxes.” Id. (quoting Vinick v. C.I.R., 110 F.3d 168, 173 (1st Cir. 1997)).
Both of these types of recklessness describe Hartman. Three separate red flags — at least
two of which Hartman fully appreciated prior to the tax period at issue here — should have
caused Hartman, as a “responsible person,” to exercise oversight of the taxes. See Hartman Dep.
Tr. at 247 (“Q. [S]o in July of 2004 when you contacted the IRS … did you explain that you
were not compliant at that point? A. Yes. . . . Q. And did she tell you at that point [October 6,
2004] again that you were not compliant? A. Yes.”). Hartman does claim that, “following the
October 2004 conference,” he attempted to further investigate whether Ott was complying with
his duties by scrutinizing Spectrum’s accounting software, noting that “[t]he tax portions were
already out and cut, the payroll was cut, everything was cut.” Def. SMF ¶ 15 (quoting Hartman
Dep. Tr. at 248:12-25). But Hartman’s deposition reveals that a check having been “cut” did not
mean that the taxes were paid: in July 2004, he found unremitted checks in Ott’s desk, despite
the fact that “those checks were cut.” Hartman Dep. Tr. at 91-92.
Furthermore, in Hartman’s supplemental brief, he reiterated that, “[f]ollowing the July
2004 IRS meeting, Hartman reasonably relied upon Ott to get the taxes caught up and remain
current, as Ott said he would,” and that “Spectrum’s first [Chapter 11 bankruptcy] operating
report for January and February, 2005 prepared by Ott and filed in Spectrum’s [Chapter] 11 case
indicated that Spectrum was current on its payroll taxes.” See Pl. Supp. Br. at 3-4. Both of these
statements indicate that Hartman placed an unreasonable amount of trust in Ott and did not
subject Ott to any oversight.
By disregarding repeated red flags that Ott was not paying the payroll taxes — several of
which occurred prior to the tax periods at issue here — Hartman acted recklessly and, therefore,
willfully under the statute. Hartman’s only arguments to the contrary, such as that he did not
discover Ott’s inability to timely remit the payroll taxes until a later date, are contradicted by the
record evidence, including Hartman’s own deposition.
The Sixth Circuit’s recent decision in Byrne adopted a “reasonable-cause exception” to
the reckless-disregard determination, under which “a responsible person’s failure to cause the
withholding taxes to be paid is not willful if he believed that the taxes were in fact being paid, so
long as that belief was, in the circumstances, a reasonable one.” 857 F.3d at 329 (quoting Winter
v. United States, 196 F.3d 339, 345 (2d Cir. 1999)). As noted above, this Court provided to the
parties an opportunity to apply the Byrne decision, which did not exist when Hartman filed his
response brief or at the hearing on the Government’s motion, to his case. But, on the undisputed
facts, he cannot be entitled to the benefit of its holding.
Byrne was a unique case, in which the defendants had hired a certified public accounting
(“CPA”) firm, a new chief financial officer (“CFO”) who oversaw the actual wrongdoer
employee, and a third-party accountant; nevertheless, these entities (i) failed to uncover the
extremely well-concealed underpayments after a weeks-long, full-scope audit of the company’s
finances; and, moreover, (ii) affirmatively representated to the IRS and the defendants that the
taxes had been paid during the quarters at issue, and that the company was “a responsible
taxpayer.” Id. at 332-333. Byrne rejected the district court’s conclusion that the defendants
should have performed their own independent review of the CPA firm’s statements; requiring
independent verification was unreasonable absent “prior indication of errors or inaccuracies” in
the CPA firm’s accounting. Id. at 332. And, even with all of these safeguards in place and the
reassurances delivered to the defendants, the Byrne court labeled its decision to vacate the
judgment against the defendants a “close call.” Id. at 329.
Hartman’s case is nothing like Byrne. Hartman conceded that, as early as July 2004, his
suspicions were substantial enough to cause him to rifle through Ott’s desk — where he
discovered that, not only were taxes not being remitted, but Ott had manipulated the accounting
software to reflect that the checks were, in fact, being remitted. Going forward, Hartman then
purported to have relied on the accounting software and Ott’s assurances at a July 2004 meeting
with the IRS, despite repeated reaffirmations that Ott was not paying the taxes. And none of the
mitigating circumstances in Byrne — such as the reassurances of a CPA, or indicia that Ott’s
deception was well concealed (it clearly was not) — are present here. Whereas the Byrne
defendants “did not simply take [the wrongdoer employee] at his word regarding . . . tax
compliance,” id. at 333, Hartman did exactly that, see, e.g., Def. Resp. at 19 (“Mr. Hartman
spoke with Mr. Ott, and they agreed that Mr. Ott would get caught up on the payroll taxes. Mr.
Hartman believed in good faith that Mr. Ott was complying . . . .”); Pl. Supp. Br. at 3 (“Hartman
reasonably relied upon Ott to get the taxes caught up and remain current, as Ott said he
would . . . .”).
Hartman’s attempts to distinguish Byrne are not persuasive. First, he notes that the Byrne
defendants had decided that the wrongdoer employee “was not adequately performing his duties”
prior to the tax periods at issue. See Pl. Supp. Br. at 2 (quoting Byrne, 857 F.3d at 323). The
cause of this conclusion, however, was the fact that deposits were being made biweekly, as
opposed to semiweekly as regulations required. Although this regulatory violation caused a
penalty assessment, it did not result in underpayment, and it did not pertain to the tax periods at
issue in the case. Furthermore, it was part of the series of events that led the Byrne defendants to
take significant prophylacitc measures, in effect during the tax periods at issue, that Hartman
Hartman also notes that, in Byrne, the wrongdoer employee twice notified the defendants
that he had missed two deposits in the first quarter of the tax year at issue. Id. However, the
issue whether the defendants acted willfully was limited to the third and fourth quarters of that
year. In the time period between the notification of missed deposits and the quarters at issue, the
defendants hired an accountant to assist the employee and installed a new CFO to oversee the
employee. Moreover, the defendants were copied on a letter from their CPA firm to the IRS
during the quarters at issue attesting to the company’s currentness on its taxes, and the court of
appeals noted that “a full-scope audit” lasting “several weeks” failed to uncover the pattern of
the employee’s fraudulent accounting, which ran throughout the periods at issue. See Byrne, 857
F.3d at 332-333.
For the reasons set forth above, this Court’s July 26, 2017 opinion and order (Dkt. 28) is
vacated, and the Government’s motion for summary judgment (Dkt. 21) is granted. The parties
shall submit a proposed judgment, approved as to form, on or before August 18, 2017. If there is
a dispute regarding the form of the judgment, the Government should file a motion for entry of a
judgment by that date.
Dated: August 16, 2017
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on August 16, 2017.
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