Summary
In Glass v. United States, 53 Fed. Cl. 33 (2002), aff'd, 63 Fed. App'x 486 (2003), the law of the case doctrine precluded plaintiffs from resuscitating any issue of their standing to assert breach of contract claims as direct rather than third party beneficiaries of the contract.
Summary of this case from Yankee Atomic Electric Company v. U.S.Opinion
Civil Action No. 3:00-CV-1543-L
July 2, 2002
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiff's Motion for Partial Summary Judgment, filed August 30, 2001; Defendant's Motion for Partial Summary Judgment, filed September 4, 2001; and Defendant's Motion to Strike Jury Demand, filed November 9, 2001. For the reasons stated herein, Plaintiff's Motion for Partial Summary Judgment is denied, Defendant's Motion for Partial Summary Judgment is granted, and Defendant's Motion to Strike Jury Demand is denied as moot.
I. Facts and Procedural Background
Even after reviewing the purported facts set forth in the summary judgment motions and Plaintiff's Complaint, it was difficult for the court to develop a coherent understanding of the facts that underlie this cause of action. Accordingly, in drafting this section, the court has pieced together details taken from the parties' respective submissions. The court notes that Plaintiff objects to a number of purported facts set forth in Defendant's summary judgment motion. To the extent those purported facts are in dispute and material, Plaintiff (as the nonmovant) is entitled to have the facts viewed in a light most favorable to him. Accordingly, any disputed facts set forth in the fact section are included only to allow for comprehensive presentation of background information. The court will give appropriate consideration to the disputed facts when it evaluates whether there are genuine issues of material fact that preclude summary judgment.
From 1994 to 1996, Plaintiff Stuart E. Glass ("Glass" or "Plaintiff") was the attorney for Mrs. Belen Stolar. Belen Stolar was the administratrix of her deceased husband's estate, Mr. Isaac Stolar ("Stolar"). Stolar died in May 1990, but before he died, he was the principal owner of Stolar Clinics, Inc. ("Stolar, Inc." or "the company"). Stolar, Inc. ceased to operate sometime after Stolar's death, and its stock became part of his estate. Also after Stolar's death, Plaintiff Glass obtained possession of assets that belonged to Stolar, Inc., and the assets were held in his law firm's trust account. It is not entirely clear why Plaintiff Glass possessed the assets, but Defendant contends that it knows how he obtained the assets: he allegedly was collecting the company's accounts receivables. Stolar, Inc. allegedly owed Defendant unpaid federal employment and unemployment taxes. On August 22, 1996, Defendant attempted to collect these taxes by serving a Summons and a Notice of Levy on Plaintiff Glass, which required him to turn over Stolar, Inc. assets that were in his possession. On September 9, 1996, he disbursed a $31,503.36 check to Defendant. This allegedly represented the full amount of Stolar, Inc. assets in his possession, but it did not cover the full balance of the company's tax liability. Defendant therefore continued its attempt to collect Stolar, Inc.'s assets by serving Plaintiff Glass with Notices of Levy on September 16, 1996 and March 4, 1997. Defendant also served him with a Final Demand on September 16, 1996. He apparently believed that these continued collection activities were improper, and on approximately April 28, 1997 filed an administrative claim with Defendant wherein he complained that the activities were unauthorized collection activities in violation of 26 U.S.C. § 7433. The administrative claim was denied by a letter from Defendant dated September 26, 1997.
The actions of the Internal Revenue Service, discussed herein, give rise to Plaintiff Glass's cause of action. Since the IRS is an agency of the United States, the United States is named as the defendant. Accordingly, the United States will hereafter be referred to as "Defendant."
Up to this point, Defendant had requested only that Plaintiff Glass turn over Stolar, Inc. assets in his possession to pay the company's outstanding tax liability. This changed, however, in 1999 because Defendant began to believe that Plaintiff Glass had sufficient control over Stolar, Inc.'s finances to make him personally responsible for the company's tax liability. Defendant contends that evidence of this control is that he had authority to determine Stolar, Inc.'s financial policy, attended meetings where the company's unpaid taxes were discussed, had access to or maintained the company's books and records, and was paying expenses on behalf of the estate that held the company's stock.
Plaintiff Glass contends that he did not have control over Stolar, Inc.'s finances because he never was: (1) an officer or employee of Stolar, Inc.; (2) hired to represent Stolar, Inc.; (3) an interest owner in Stolar, Inc.; (4) a member of the board of Stolar, Inc.; (5) a manager of Stolar, Inc.'s day-to-day operations; (6) authorized to make decisions on behalf of Stolar, Inc.; (7) authorized to act as a signatory on Stolar, Inc.'s bank accounts; or (8) required to collect, account for, or pay taxes imposed on Solar, Inc. In any event, on April 5, 1999, Defendant served Plaintiff Glass with a Notice of Tax Due on Federal Tax Return, which indicated that he personally was liable for $17,052.68. This sum allegedly corresponded with the outstanding taxes owed by Stolar, Inc. Plaintiff Glass did not comply with the notice. Apparently, he did not believe he was personally liable for any taxes owed by the company. On August 2, 1999, Defendant therefore sent a notice that it intended to levy Plaintiff Glass's assets. The notice indicated that Plaintiff owed $17,503.25.
Plaintiff Glass refers to this notice in his Complaint as being issued on April 15, 1999, as opposed to April 5, 1999. See Complaint at 2. The notice is attached to his Complaint as a portion of Exhibit A, and is dated April 5, 1999.
The April 5, 1999 Notice of Tax Due on Federal Tax Return indicated that Plaintiff owed $17,052.68. The August 2, 1999 notice, however, indicated that Plaintiff owed $17,503.25. The increase partially can be explained because $345.61 of interest apparently accrued from the time of the initial notice to the time of the second notice. Even considering the accrued interest, however, there is an additional $104.96 increase that is not explained in the record.
Plaintiff Glass questioned the propriety of his personal liability for the taxes in a letter to Defendant dated September 3, 1999. He also paid $100 towards the tax liability on this date. Defendant maintained its position that Plaintiff was responsible for the overdue taxes. On September 13, 1999, Defendant therefore applied $1,249 that Plaintiff Glass was owed as a refund for overpayment on his 1998 tax return to offset the taxes he allegedly owed on behalf of Stolar, Inc.
Plaintiff Glass filed this suit on July 18, 2000. He apparently claims that Defendant engaged in the unauthorized collection of taxes in violation of 26 U.S.C. § 7433 when it: (1) undertook the collection activities that gave rise to his 1997 administrative claim and proceedings, (2) sought to collect the outstanding taxes with the April 5, 1999 Notice of Tax Due on Federal Tax Return and August 2, 1999 notice of intent to levy, and (3) withheld his $1,249 refund. He also asserts refund claims to recover the $1,249 withheld by Defendant, and the $100 he paid to Defendant. Defendant counterclaims under 26 U.S.C. § 6672 to recover the outstanding taxes that Plaintiff Glass allegedly owes.
The court is not entirely clear whether Plaintiff Glass's Complaint should be read to set forth a § 7433 claim based on the 1997 collection activities, because the Complaint does not appear to make any specific reference to these collection activities as a basis for the claim. Out of an abundance of caution, the court nevertheless addresses these collection activities, because the parties have treated the collection activities as if they are a basis for Plaintiff Glass's § 7433 claim. See generally Defendant's Motion for Partial Summary Judgment at 5; Brief in Support of Plaintiff's Response for Partial Summary Judgment ("Brief in Support") at 4.
As of September 22, 2000, Defendant contended that Plaintiff owed $15,808.64. See Defendant's Answer and Counterclaim at 3.
Both parties move for partial summary judgment. Defendant's motion sets forth its request to dismiss Plaintiff Glass's § 7433 claim on the grounds that the court lacks jurisdiction to hear the claim, Plaintiff lacks standing to bring the claim, and Defendant's actions did not violate § 7433. Plaintiff Glass's motion sets forth his request for judgment as a matter of law on his claim that Defendant's collection activities violated § 7433. The motion also sets forth his request to dismiss Defendant's § 6672 counterclaim on the ground that he was not a person responsible for Stolar, Inc.'s taxes. The court begins its evaluation of the parties' motions by setting forth the summary judgment standard.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. In light of the summary judgment standard, the court first evaluates Defendant's Motion for Partial Summary Judgment.
III. Analysis
A. Defendant's Motion for Partial Summary Judgment
1. Plaintiff's § 7433 Claim
As previously stated, Defendant contends that Plaintiff's § 7433 claim should be dismissed because the court lacks subject matter jurisdiction over the claim, Plaintiff lacks standing to bring the claim, and Defendant's actions did not violate § 7433. Defendant's Brief in Support of its Motion for Partial Summary Judgment ("Defendant's Brief") at 1. Glass appears to assert four bases for his § 7433 claim: (1) Defendant's collection activities that gave rise to the 1997 administrative claim and proceedings, (2) the April 5, 1999 Notice of Tax Due on Federal Tax Return, (3) the August 2, 1999 notice of intent to levy, and (4) Defendant's withholding of Plaintiff Glass's $1,249 refund. The court addresses each basis for the § 7433 claim in turn.
a. The 1997 Collection Activities and Administrative Claim
The collection activities that lead to Plaintiff Glass's 1997 administrative claim were Notices of Levy sent by Defendant on September 16, 1996 and March 4, 1997, and a Final Demand sent by Defendant on September 16, 1996. The court does not have jurisdiction over Plaintiff Glass's § 7433 claim related to these collection activities.
The "United States, as sovereign, is immune from suits save as it consents to be sued . . ." Broussard v. United States, 989 F.2d 171, 174 (5th Cir. 1993) (internal quotations omitted). Accordingly, "the United States is immune to suit unless [its] immunity is expressly waived by Congress." Austral Oil Co. v. National Park Serv., 982 F. Supp. 1238, 1242 (N.D. Tex. 1997). "If a waiver of sovereign immunity contains a limitations period, a plaintiff's failure to timely file suit deprives the court of jurisdiction." Gandy v. United States, 234 F.3d 281, 283 (5th Cir. 2000); see also Dunn-McCampbell Royalty Interest, Inc. v. National Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997) (holding that "failure to sue the United States within the limitations period is not merely a waivable defense . . . [i]t operates to deprive federal courts of jurisdiction.").
Congress has waived the immunity of the United States with regard to this action by the following language:
If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United States in a district court of the United States. . . .26 U.S.C. § 7433 (a) (emphasis added). This provision is subject to a limitations provision that provides, "Notwithstanding any other provision of law, an action to enforce liability created under this section . . . may be brought only within 2 years after the date the right of action accrues." 26 U.S.C. § 7433 (d)(3) (emphasis added). Accordingly, any suit not brought within the limitations period set forth in § 7433(d)(3) is jurisdictionally barred.
Defendant contends that Plaintiff Glass's § 7433 cause of action accrued on or before April 29, 1997. Defendant's Brief at 5. The record reflects that April 29, 1997 was the day that Defendant received Plaintiff Glass's administrative claim for the alleged unauthorized collection activities that led to the 1997 administrative proceedings. See United States' Appendix in Support of its Motion for Partial Summary Judgment ("Defendant's App.") at 8. Accordingly, Defendant contends that "[a]s a matter of law, [Plaintiff] had at most two years from that date, or April 29, 1999 (April 29, 1997 + 2 years) to file a suit seeking damages under [§] 7433." Defendant's Brief at 5. Plaintiff filed this action on July 18, 2000. Id. Defendant therefore contends that "[d]ue to the untimeliness of this suit, [the] Court lacks subject matter jurisdiction over [this] portion of the Complaint . . . ." Id.
Plaintiff does not challenge Defendant's contention that the limitations period set forth in § 7433(d)(3) is a jurisdictional limitation. Plaintiff also does not challenge Defendant's contention that this action was filed after the limitations period expired. Plaintiff merely responds by asserting that "Rule 8(c) of the Federal Rules of Civil Procedure require [sic] affirmative defenses and special matters such as the statute of limitations to be specially pleaded and included in a party's first responsive pleading or the defenses or special matters are waived." Brief in Support at 4. Plaintiff continues by asserting that Defendant did not raise the statute of limitations defense in its responsive pleading, and therefore waived the defense. Id.
Plaintiff is mistaken that Defendant waived the limitations defense. The defense speaks to whether the court has jurisdiction over this action, and "[d]efects of subject matter jurisdiction cannot be waived." Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 560 (5th Cir. 1985). Moreover, "an alleged want of subject matter jurisdiction may be raised at any time. . . ." Sea-Land Serv., Inc. v. International Longshoremen's Assoc., 625 F.2d 38, 41 (5th Cir. 1980); see also Fed.R.Civ.P. 12(h)(3). Accordingly, to the extent Plaintiff Glass's § 7433 claim is based on the collection activities that gave rise to the 1997 administrative proceedings, it is untimely and the court lacks jurisdiction over this portion of the claim.
Even if the court had jurisdiction over this portion of the claim, it would fail as a matter of law. Plaintiff Glass appears to complain that he was improperly assessed with Stolar, Inc.'s taxes, and Defendant therefore should not have attempted to collect the taxes from him. He does not contend that the actual collection procedures used by Defendant were contrary to law. These facts do not support a § 7433 claim, because in Shaw v. United States, 20 F.3d 182, 184 (5th Cir. 1994), the Fifth Circuit held that no cause of action arises under § 7433 when the IRS uses proper collection procedures to collect an improperly assessed tax.
This determination does not extend to Plaintiff Glass's § 7433 claim insofar as it relates to the April 5, 1999 Notice of Tax Due on Federal Tax Return; the August 2, 1999 notice of intent to levy; or Defendant's withholding of his $1,249 refund. The April 5, 1999 Notice of Tax Due on Federal Tax Return and August 2, 1999 notice of intent to levy obviously were sent to Plaintiff Glass in 1999. Additionally, the record reflects that his $1,249 refund was withheld on approximately September 13, 1999. See Appendix to Brief in Support of Plaintiff's Response to Defendant's Motion for Partial Summary Judgment ("Plaintiff's App.") at 37. Plaintiff Glass therefore had two years from those respective dates in 1999 to file a § 7433 claim. See 26 U.S.C. § 7433 (d)(3). He filed this action on July 18, 2000, which was within the two-year period. As a result, Defendant's contention that the limitations period has run on the § 7433 claim does not extend to the portions of the claim based on the April 5, 1999 Notice of Tax Due on Federal Tax Return; the August 2, 1999 notice of intent to levy; or the withheld $1,249 refund. The court therefore addresses whether Defendant otherwise is entitled to summary judgment on the portions of the § 7433 claim that arise from these collection activities.
b. The April 5, 1999 Notice of Tax Due on Federal Tax Return
The court does not have jurisdiction over the portion of Plaintiff Glass's § 7433 claim based on the April 5, 1999 Notice of Tax Due on Federal Tax Return, because he did not exhaust his administrative remedies. As previously stated, Defendant asserts that Plaintiff Glass lacks standing to bring his § 7433 claim. Under this argument, Defendant in part asserts that Plaintiff "never filed an administrative claim with [Defendant] alleging improper collection activities" after the 1997 administrative claim. Defendant's Brief at 7.
In an action for unauthorized collection of taxes, "[a] judgment for damages shall not be awarded . . . unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service." 26 U.S.C. § 7433 (d)(1); see also 26 C.F.R. § 301.7433-1 (a) (addressing a cause of action for the unauthorized collection of taxes and stating that "[a]n action for damages filed in federal district court may not be maintained unless the taxpayer has filed an administrative claim [in accordance with this section].").
The record reflects that the only administrative claim for unauthorized collection of taxes was the 1997 claim. See Defendant's App. at 8. The April 5, 1999 Notice of Tax Due on Federal Tax Return postdates this administrative claim, is independent of the collection activities that gave rise to the claim, and there is not evidence that Plaintiff Glass filed any subsequent administrative claim that the April 5, 1999 Notice of Tax Due on Federal Tax Return violated § 7433.
The record does reflect that in a letter to Defendant dated June 3, 1999, Plaintiff Glass claimed that the personal assessment on him of $17,052.68 in taxes was erroneous and that on September 3, 1999 he sent a letter to Defendant inquiring about the reason he had been assessed with the taxes. See Plaintiff's App. at 24, 28. Nothing, however, in the June 3, 1999 letter or September 3, 1999 letter indicates that he requested an administrative hearing to determine whether the April 5, 1999 Notice of Tax Due on Federal Tax Return violated § 7433. Moreover, nothing in the record otherwise indicates that an administrative hearing was ever requested or conducted with respect to the April 5, 1999 Notice of Tax Due on Federal Tax Return.
The court therefore does not have jurisdiction over this portion of Plaintiff Glass's § 7433 claim, because the record does not reflect that he exhausted his administrative remedies. Accordingly, there is no genuine issue of material fact regarding the April 5, 1999 Notice of Tax Due on Federal Tax Return, and Defendant is entitled to judgment as a matter of law on this basis for Plaintiff's § 7433 claim.
Even if Plaintiff Glass had exhausted his administrative remedies, the claim would fail. The April 5, 1999 Notice of Tax Due on Federal Tax Return refers to tax due on tax return form 8278. There is no IRS tax form 8278. See Brief in Support of Plaintiff's Motion for Partial Summary Judgment ("Plaintiff's Brief") at 2. As a result, Plaintiff apparently is contending that the April 5, 1999 Notice of Tax Due on Federal Tax Return somehow violated the provisions of the Internal Revenue Code or Internal Revenue Code regulations. Plaintiff Glass does not refer the court to a code provision or regulation that is violated when the IRS makes, what appears to be, a clerical error and lists an incorrect tax form number. Likewise, the court cannot identify any such provision. There must, however, be a code section or regulation that speaks to this issue if Plaintiff is to make the requisite § 7433 showing that an "officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregard[ed] [a] provision of [the Internal Revenue Code], or any regulation promulgated under [the code] . . . ." See 26 U.S.C. § 7433 (a). Since there does not appear to be any provision that prohibits Defendant's apparent clerical mistake, Plaintiff Glass cannot demonstrate that the April 5, 1999 Notice of Tax Due of Federal Tax Return violated § 7433.
c. The August 2, 1999 Notice of Intent to Levy
Plaintiff Glass's claim that the August 2, 1999 notice of intent to levy violated § 7433 also fails, because he did not exhaust his administrative remedies. As previously stated, the record reflects that he filed his only administrative claim for unauthorized collection of taxes in 1997. He did not file an administrative claim with respect to the August 2, 1999 notice of intent to levy. Accordingly, the court does not have subject matter jurisdiction over this portion of his § 7433 claim. Moreover, even if Plaintiff Glass had exhausted his administrative remedies, the court cannot identify any statutory provision or regulation that makes the August 2, 1999 notice of intent to levy improper. Accordingly, the notice did not violate § 7433. Defendant therefore is entitled to judgment as a matter of law on this basis for Plaintiff Glass's § 7433 claim.
d. Defendant's Withholding of Plaintiff's $1,249 Refund
Plaintiff Glass finally contends that the IRS violated § 7433 when it withheld a $1,249 refund that he was owed as an overpayment on his 1998 tax return. The record does not reflect that he filed an administrative claim with respect to this basis for his § 7433 claim. Accordingly, he did not exhaust his administrative remedies, and the court lacks jurisdiction over this portion of his § 7433 claim. Additionally, the court cannot identify any statutory or regulatory provision that prevents Defendant from withholding a taxpayer's refund to offset his purported tax liabilities. As a result, Defendant did not violate § 7433 when it withheld Plaintiff Glass's $1,249 refund. Defendant therefore is entitled to judgment as a matter of law on Plaintiff Glass's § 7433 claim based on the withheld $1,249 refund.
For the foregoing reasons, Plaintiff Glass fails to create a genuine issue of material fact regarding any of the bases for his § 7433 claim. Accordingly Defendant is entitled to summary judgment on Plaintiff's § 7433 claim.
2. Plaintiff Glass's Refund Claims
As previously stated, Plaintiff Glass filed refund claims to recover the $1,249 that Defendant withheld and applied to his tax liability, and the $100 he paid to Defendant. These claims are distinct from his claim that Defendant's withholding of the $1,249 violated § 7433. Although Defendant moved for summary judgment on the § 7433 claim related to the withheld $1,249, it did not move for summary judgment on either of the refund claims. The court nevertheless addresses the refund claims in this summary judgment analysis, because it does not have subject matter jurisdiction over the claim for $1,249, and a "federal trial court [has] the duty to examine the basis for . . . subject matter jurisdiction, doing so on its own motion if necessary." Torres v. Southern Peru Copper Corp., 113 F.3d 540, 542 (5th Cir. 1997) (emphasis added).
Plaintiff Glass's refund claims are subject to an administrative remedy requirement that reads as follows:
No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.26 U.S.C. § 7422 (a). The record reflects that on August 28, 1999 Plaintiff Glass filed an administrative claim for refund of the $100 he paid to Defendant. Defendant did not withhold the $1,249 until after Plaintiff Glass filed this administrative refund claim, and there is no evidence that he filed any subsequent administrative claim with respect to the $1,249. The court therefore determines, sua sponte, that it does not have subject matter jurisdiction over Plaintiff Glass's refund claim for $1,249, because he did not exhaust his administrative remedies. The court does, however, have jurisdiction to hear Plaintiff's refund claim for $100, and he may proceed with this claim.
B. Plaintiff's Motion for Partial Summary Judgment
Plaintiff Glass contends that he is entitled to judgment as a matter of law on his § 7433 claim, and that Defendant's counterclaim under § 6672 should be dismissed as a matter of law. See Plaintiff's Brief at 5, 7. For the reasons previously stated, Plaintiff's § 7433 claim fails as a matter of law. As a result, he necessarily is not entitled to summary judgment on the § 7433 claim.
Regarding Defendant's § 6672 counterclaim, the section in relevant part states:
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 . . . .26 U.S.C. § 6672 (a). "To be held liable under [§] 6672, a person must be deemed `responsible' within the meaning of the statute, and must `willfully' fail to remit the amounts due to the government." Bugge v. United States, 99 F.3d 740, 744 (5th Cir. 1996).
Plaintiff requests summary judgment dismissal of Defendant's § 6672 counterclaim on the ground that he was not a responsible person within § 6672's meaning. He has not raised arguments to challenge the willfulness element of Defendant's § 6672 counterclaim. Accordingly, the court limits its analysis to the responsibility element.
Plaintiff sets forth evidence that could indicate he was not responsible for Stolar, Inc.'s taxes. The evidence indicates that he never was: (1) an officer or employee of Stolar, Inc.; (2) hired to represent Stolar, Inc.; (3) an interest owner in Stolar, Inc.; (4) a member of the board of Stolar, Inc.; (5) a manager of Stolar, Inc.'s day-to-day operations; (6) authorized to make decisions on behalf of Stolar, Inc.; or (7) authorized to act as a signatory on Stolar, Inc.'s bank accounts. Appendix to Brief in Support of Plaintiff's Motion for Partial Summary Judgment at 2. Defendant counters this evidence by bringing forth evidence that Plaintiff had authority to determine Stolar, Inc.'s financial policy, attended meetings where the company's unpaid taxes were discussed, had access to or maintained the company's books and records, and was paying expenses on behalf of the estate that held the company's stock. United States' Appendix in Support of Response and Brief in Opposition to Plaintiff's Motion for Partial Summary Judgment at 4, 5, 10. The parties' conflicting evidence creates a genuine issue of material fact for trial. Accordingly, Plaintiff's Motion for Partial Summary Judgment is denied.
IV. Motion to Strike Jury Demand
Plaintiff Glass's Complaint contains a request for jury trial. See Complaint at 1. Defendant's Motion to Strike Jury Demand ("Motion to Strike") sets forth its request that the court strike the jury demand with respect to Plaintiff Glass's § 7433 claim, because he allegedly has no right to a jury trial for a § 7433 claim. See Motion to Strike at 1. The court has found that Plaintiff Glass's § 7433 claim fails as a matter of law. Accordingly, the claim will be dismissed. Defendant's request to strike the jury demand therefore is moot. As a result, Defendant's Motion to Strike Jury Demand is denied as moot.
V. Conclusion
For the reasons stated herein, Defendant's Motion for Partial Summary Judgment is granted, and Plaintiff Glass's claim for unauthorized collection of taxes under 26 U.S.C. § 7433 is dismissed without prejudice. Plaintiff's refund claim for $1,249 is dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff's Motion for Partial Summary Judgment is denied, and Defendant's Motion to Strike Jury Demand is denied as moot. The remaining claims are Plaintiff Glass's refund claim for $100 and Defendant's counterclaim under 26 U.S.C. § 6672. By separate order, the court will set the remaining claims for trial.