United States District Court, D. Maryland
Mark Coulson United States Magistrate Judge
United States brought this action pursuant to 26 U.S.C.
§ 7403 seeking to reduce to judgment certain federal
income tax assessments issued against Defendant Akins and
certain trust fund recovery penalty assessments against
Defendant Amani. The parties consented to proceed before a
magistrate judge for all proceedings pursuant to 28 U.S.C.
§ 636 and Local Rules 301 and 302. (ECF Nos. 32, 34).
Now pending before the Court are the parties'
cross-motions for summary judgment. (ECF Nos. 50, 53). The
Court has reviewed the parties' cross-motions as well as
the relevant responses and replies. (ECF Nos. 58, 59). No
hearing is necessary. Loc. R. 105.6 (D. Md. 2016). For the
reasons that follow, Defendants' Motion for Summary
Judgment, (ECF No. 53), is DENIED and the United States'
Motion for Summary Judgment, (ECF No. 50), is GRANTED IN PART
and DENIED IN PART.
STANDARD OF REVIEW
Rule of Civil Procedure 56(a) requires the Court to
“grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” The moving
party bears the burden “to demonstrate the absence of
any genuine dispute of material fact.” Jones v.
Hoffberger Moving Servs. LLC, 92 F.Supp.3d 405, 409 (D.
Md. 2015) (internal citations omitted). A dispute as to a
material fact “is genuine if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” J.E. Dunn Const. Co. v. S.R.P. Dev. Ltd.
P'ship, 115 F.Supp.35 593, 600 (D. Md. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)).
nonmoving party “opposing a properly supported motion
for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings, ' but rather
must ‘set forth specific facts showing that there is a
genuine issue for trial.'” Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003). The court is “required to view the facts and
draw reasonable inferences in the light most favorable
to” the nonmoving party, Iko v. Shreve, 535
F.3d 225, 230 (4th Cir. 2008) (citing Scott v.
Harris, 550 U.S. 372, 377 (2007)), but must also
“abide by the ‘affirmative obligation of the
trial judge to prevent factually unsupported claims and
defenses from proceeding to trial.'” Heckman v.
Ryder Truck Rental, Inc., 962 F.Supp.2d 792, 799-800 (D.
Md. 2013) (quoting Drewitt v. Pratt, 999 F.2d 774,
778-79 (4th Cir. 1993)).
case, the Government is seeking to reduce to judgment federal
income tax assessments against Defendant Vince Akins for
2008, 2009, and 2010 and trust fund recovery penalty
assessments against Defendant Natalie Amani for quarters
ending in March 2011 and 2012, and to foreclose the related
federal tax liens against Defendants' real property
located at 11640 Whitetail Lane in Ellicott City, Maryland.
assessment, once it is shown to have been made by the
Government, is entitled to a presumption of correctness.
United States v. Fior D'Italia, 536 U.S. 238,
242 (2002) (“It is well established in the tax law that
an assessment is entitled to a legal presumption of
correctness-a presumption that can help the Government prove
its case against a taxpayer in court.); see also United
States v. Pomponio, 635 F.2d 293, 296 (4th Cir. 1980)
(“This presumption is not limited merely to the amount
of the assessment but requires that the taxpayer demonstrate
that he was not a responsible person or that his failure to
pay the taxes was not willful.”). Once so established,
the burden then shifts to the taxpayer to come forward with
credible evidence showing the assessment is erroneous.
United States v. Janis, 428 U.S. 433, 440 (1976);
see also U.S. v. Kitila, Civ. No. DKC-09-0455, 2010
WL 917873, at *3 (D. Md. Mar. 8, 2010) (“[The
Government] has supported [its motion for summary judgment]
with a declaration and certified records, thus shifting the
burden to Defendant to produce evidence refuting the
Government's position.). A taxpayer challenging such an
assessment must also establish the correct amount, if any, of
taxes due. United States v. Sage, 412 F.Supp.2d 406,
416 (S.D.N.Y. 2006); see also Helvering v. Taylor,
293 U.S. 507, 514-15 (1935). This burden cannot be satisfied
merely by self-serving statements from the taxpayer.
Liddy v. Commissioner of Internal Revenue, 808 F.2d
312, 315-16 (4th Cir. 1986).
Government has supported its Motion for Summary Judgment,
(ECF No. 50), with sworn affidavits from its agents involved
in the assessments as well as the sworn deposition testimony
of Defendant Akins's accountant, Mr. Bangura, thus
shifting the burden to Defendants to provide evidence
refuting the Government's position. (ECF Nos. 50-4, 50-5,
50-26). In response, Defendant Akins neither offers evidence
that the assessments are incorrect nor evidence of what he
contends the correct amount should be. (ECF No. 53). Rather,
Defendant Akins now argues that Mr. Bangura did not have his
authority to file returns or participate in the
audits/assessment calculations for the years in question.
(ECF No. 53-1 at 7). However, nothing in his deposition
testimony that he relies upon (which, in turn, cites his
interrogatory answers) directly contradicts the
Government's evidence on this point, nor Mr.
Bangura's own sworn testimony that he has such authority
from Defendant Akins. (ECF No. 53-9). Rather, Defendant Akins
claims he has no information about the tax assessments, did
not file a tax return for the years in question, and received
no IRS correspondence regarding the assessments in
question.Defendants have not pointed to any
testimony wherein Defendant Akins denies that Mr. Bangura had
authority to act on his behalf with regard to the tax years
in question. Instead, they attempt to make that point by
underscoring alleged irregularities in the executed power of
attorney and the signatures on the returns themselves.
Court's view, these arguments fall short. First,
Defendant Akins alleges that the power of attorney for 2008
in favor of Mr. Bangura was “signed” with a stamp
and is dated September 27, 2010. There is no dispute,
however, that the document is dated during Mr. Bangura's
interactions with the IRS, on Defendant Akins's behalf,
to deal with other tax years for which Mr. Bangura's
authority is apparently not challenged. Rather than
undermining Mr. Bangura's authority, this would seem to
support it. Second, Defendant Akins states that the copies of
his 2009 and 2010 returns provided by the Government in
discovery are unsigned “client copies, ” and that
such documents cannot be a legitimate basis for the 2009-2010
assessments. As the Government points out, they are not under
an obligation to provide original returns, and the fact that
returns for those years were accepted by the IRS is some
proof that signed returns were submitted, as they would have
been rejected by the IRS otherwise. Mr. Akins's reliance
on Olpin v. Commissioner of Internal Revenue, 270
F.3d 1297, 1999 (10th Cir. 2001), is misplaced in that the
case dealt with the taxpayer trying to avoid a tax
deficiency by relying on an unsigned return. Most
importantly, Defendant Akins does not offer any proof that
the amounts contained in the returns for the years in
question are incorrect. Therefore, as to the federal income
tax assessments against Defendant Akins, the Court will grant
the Government's Motion for Summary Judgment and deny
Defendants' Motion for Summary Judgment.
the trust fund recovery penalties owed by Defendant Amani
stemming from federal income and Social Security taxes that
were withheld from employees' pay but not, in turn, paid
to the IRS, the question turns on whether Defendant Amani was
a responsible officer of the Royale Services Corporation
(“RSC”). To determine who within a company is a
“responsible person, ” courts undertake a
“pragmatic, substance-over-form inquiry” based on
the person's position, duties, and authority within the
business entity in question. Plett v. United States,
185 F.3d 216, 219 (4th Cir. 1999). Factors in this analysis
include whether the person in question was an officer,
controlled the company's payroll, determined which
creditors to pay, participated in the company's
day-to-day management, had the authority to write checks, and
had the ability to hire and fire employees. Hagen v.
United States, 485 F.Supp.2d 622, 628 (D. Md. 2007).
Government argues that its declaration from Agent Thompson,
who interviewed Defendant Amani, establishes virtually all of
these. (ECF No. 50-4). Agent Thompson's declaration is
corroborated in part by deposition testimony from Mr. Bangura
and Ms. Asante, another officer of the company. (ECF Nos.
50-26, 58-13, 58-14). It is also somewhat supported by
deposition testimony from Mr. Uwandu, Defendant Amani's
accountant. (ECF No. 58-15). For her part, Defendant
Amani counters that her own affidavit and that of Ms.
Wimberly, the company's bookkeeper, contradict the
Government's evidence in key respects.
also points out that, at least at one point, another
individual asserted that he was the president of RSC,
according to a 2009 bank signature card.
the Government has gathered significant evidence supporting
its argument, Defendant Amani has presented at least some
contradictory evidence. It is not within the Court's role
at this stage in litigation to weigh competing evidence or
determine which set of witnesses to believe. The
“responsible person” test at issue is a balancing
test, and Defendant Amani has demonstrated at least as to
some of the factors, the evidence is somewhat contradictory.
Accordingly, the Court cannot, at this stage, determine as a
matter of law that Defendant Amani demonstrated the requisite
control so as to open herself to liability for the trust fund
recovery penalties. ...