The opinion of the court was delivered by: WILLIAM A. INGRAM
The motion of Plaintiff for summary judgment was submitted to the Court for determination. After consideration of the papers, all other matters presented to the Court, and good cause appearing therefor, the Court hereby GRANTS Plaintiff's Motion for Summary Judgment.
This motion arises from a civil refund suit brought by Plaintiff Michael Howard to contest an assessment made against him by the Internal Revenue Service.
Plaintiff seeks summary judgment on the ground that the statute of limitations expired before the tax was assessed.
The parties do not dispute any of the facts. On April 13, 1992, the Internal Revenue Service ("IRS") assessed a penalty against Plaintiff for the unpaid employment taxes of Seybold Group, Inc. for 1987.
The IRS made this assessment pursuant to 26 U.S.C. § 6672(a), which imposes a penalty in the amount of unpaid employment taxes owed by an employer on a "responsible person." The IRS made this assessment on the basis that Plaintiff was the person responsible for collecting and paying over Seybold Group's employment taxes. Taxes employers are required to collect and withhold from employees are referred to as "trust fund employment taxes."
Seybold Group filed its Employer's Quarterly Federal Tax Returns, Forms 941, for all of 1987 on April 22, 1988. On January 7, 1991, the IRS wrote to Plaintiff explaining that the assessment statutory period would expire before the Regional Director could complete consideration of the case, but that the period could be extended if Plaintiff executed a Form 2750 waiver. On January 16, 1991, Plaintiff signed this waiver. This waiver was never signed by any person on behalf of the IRS. Plaintiff signed a second Form 2750 on November 26, 1991, which was signed by IRS Appeals Officer Haas on December 9, 1991.
Plaintiff argues that because the IRS never signed the initial Form 2750, the three year limitations period provided by § 6501(a) has expired. Defendant responds with two contentions: (1) § 6501(a) does not apply to assessment of the responsible person penalty, and (2) even if it applies, Plaintiff consented in writing to extend the statute of limitations.
A. § 6501(a) Three-Year Statute of Limitations
The IRS assessed the responsible person penalty at issue in this action on April 13, 1992, pursuant to Title 26 U.S.C. § 6672. This section provides in pertinent part:
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, in addition to other penalties provided by law, 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 Internal Revenue Code sets forth a general rule for assessment and collection of taxes which states that "except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed . . ." Title 26 U.S.C. § 6501(a).
The IRS, however, contends that although § 6501(a) applies to the period for assessment against Seybold Group, the entity which filed the tax return, this section does not apply to limit the assessment period for the responsible person penalty against Plaintiff. The agency asserts that the assessment against Plaintiff was not made with respect to Seybold Group's employment tax returns or any other return that would trigger the running of the three-year limitations period in § 6501(a). Therefore, the IRS argues, the three-year limitations period does not apply and the § 6672 penalty may be assessed at any time unless Congress has elsewhere enacted an express limitations period.