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Gretta M. Bernabe v. United States of America

December 19, 2011


The opinion of the court was delivered by: Dean D. Pregerson United States District Judge



Defendant and Counterclaim-Plaintiff United States of America ("Defendant") brings this Motion for Summary Judgment ("Motion") against Plaintiff and Counterclaim-Defendant Gretta M. Bernabe ("Gretta Bernabe"). Having reviewed the parties' moving papers and heard oral argument, the court grants the Motion and adopts the following Order.


There are no genuine disputes as to the following facts. Pleasant Care Corporation and its four related subsidiaries ("Pleasant Care") operated approximately thirty skilled nursing facilities and residential care facilities, and had approximately 3,000 employees. During the 2006 and 2007 payroll tax periods at issue, Pleasant Care failed to pay to the Internal Revenue Service ("IRS") all of the federal income and social security taxes it had withheld from its employees' wages (collectively, "payroll" or "trust fund" taxes).*fn1 (Opp'n at 2.) Emmanuel Bernabe was the President of Pleasant Care. Pleasant Care also had an Executive Vice President, a Vice President of Finance, and a Compliance Officer. Gretta Bernabe was Pleasant Care's Secretary and Treasurer. (Id. at 3.)

Gretta Bernabe's salary was $86,847 in 2006 and $97,087 in 2007. As part of her duties, Gretta Bernabe reviewed batches of checks prepared by Accounts Payable and usually signed by the Vice President of Finance. The checks were grouped by expense priority. Before August 2006, the first priority was payroll, including payroll taxes. In August 2006, Emmanuel Bernabe verbally instructed Gretta Bernabe that payroll taxes were no longer first priority. (Mot. at 3-4.*fn2 ) Pleasant Care's relevant checking account required two signatures from the three authorized signatories - Emmanuel Bernabe, Gretta Bernabe, and the Vice President of Finance. Gretta Bernabe typically reviewed the check amounts and priorities, then provided the second signature. (Id. at 4-5.) Gretta Bernabe also had a signature stamp for Emmanuel Bernabe, which she sometimes used. During the periods at issue, Emmanuel Bernabe only reviewed a small portion of the checks signed and stamped by Gretta Bernabe. Gretta Bernabe signed approximately 200 checks per day, and signed and stamped at least one check for more than $10,000. (Id. at 5-6.) She also signed checks paying creditors other than the United States, knowing that the payroll taxes had not been paid. (Id. at 9.)

Gretta Bernabe's duties also included transferring funds from Pleasant Care's general account to its payroll account, to ensure there were sufficient funds to cover payroll. In addition, she prepared and signed Pleasant Care's quarterly federal tax returns, and had some involvement in the hiring and firing of employees. (Id. at 7-8.)

On the other hand, viewing the evidence in the light most favorable to Gretta Bernabe, Emmanuel Bernabe made the major financial and management decisions for Pleasant Care, and had the final say on all decisions. (Opp'n at 5-7.) Emmanuel Bernabe also assured Gretta Bernabe, who wanted to pay the payroll taxes, that he had a plan to sell certain facilities so they could do so. (Id. at 9-10.) Further, Emmanuel Bernabe was a dominating individual who yelled at Gretta Bernabe. (Id. at 10-11.) Gretta Bernabe also alleges that Emmanuel Bernabe required her to follow his specific creditor payment instructions at all times, and that her official job title therefore overstates her actual authority. (Id. at 7-9.)

On September 30, 2009, the IRS sent notice of intent to assess against Gretta Bernabe the trust fund recovery penalty ("TFRP") provided by 26 U.S.C. § 6672 ("Section 6672"). On October 13, 2009, the IRS assessed the TFRP against Gretta Bernabe. (Mot. at 9.) After meeting the relevant procedural requirements, Gretta Bernabe filed this action against Defendant on March 4, 2010, alleging that the TFRP assessment was improper. (Compl. ¶¶ 10-17.)

Defendant now seeks summary judgment that Gretta Bernabe is liable for the TFRP under Section 6672. Defendant argues that it is entitled to summary judgment because the undisputed facts demonstrate that Gretta Bernabe was 1) a "responsible person," who 2) willfully failed to pay the required payroll taxes. Gretta Bernabe contends, to the contrary, that there are genuine issues of material fact as to these two elements.


Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The evidence must be viewed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Id. at 255.

It is not enough, however, for the nonmoving party to rest on the "mere allegations or denials of his pleadings." Id. at 259. Instead, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The "mere existence of a scintilla of evidence" in support of the nonmoving party's claim is insufficient to defeat summary judgment. Anderson, 477 U.S. at 252.

In a TFRP case, "the government bears the initial burden of proof." Oliver v. United States, 921 F.2d 916, 919 (9th Cir. 1990). The government may normally satisfy this burden "by introducing into evidence its assessment of taxes due." Id. "[T]he taxpayer then has the burden of proof with respect to both his own claim and the government's counterclaim." Id. Here, there is no dispute that the government satisfied its initial burden by introducing its relevant tax assessments into evidence. (Mot. at 10-11.) Gretta ...

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