                    UNITED STATES COURT OF APPEALS
Filed 4/3/96
                        FOR THE TENTH CIRCUIT

                                  ______


JESSE LEE HOWELL,                            )
                                             )
     Plaintiff-Appellant,                    )
                                             )
v.                                           )         No. 95-5093
                                             )    (D.C. No. 92-C-81-K)
UNITED STATES OF AMERICA,                    )     (N. Dist. of Okla.)
                                             )
     Defendant-Counterclaim Plaintiff-       )
     Third Party Plaintiff-Appellee.         )
                                             )
v.                                           )
                                             )
DANIEL L. NICHOLS and SYDNEY NICHOLS,        )
                                             )
     Third Party Defendant-Appellant.        )

                                  ______

                            ORDER AND JUDGMENT*

                                  ______

Before PORFILIO, BARRETT, and LUCERO, Circuit Judges.
                              ______


     Jesse   Lee   Howell   (Howell) appeals from an order of       the

district court denying his motion for summary judgment and granting

summary judgment in favor of the United States of America.

     In 1981, Howell purchased Speedprint No. 1 from M. W. Pickett,


     *
      This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of Tenth Cir. R. 36.3.
the   owner    of     the    Speedprint    franchise.            The    business       was

incorporated     as      J.D.S.   Systems,       Inc.   (JDS).         It    engaged   in

commercial printing and typesetting.               Howell was the President and

sole shareholder of JDS.             Daniel Nichols, husband of Howell’s

sister, Sydney, was a JDS salesman.                In 1983, Daniel was elected

Vice-President of JDS.

      On January 1, 1984, Howell and his wife (designated “seller”)

entered   into      an   agreement   to    sell     JDS   to    Daniel       and    Sydney

(designated      “purchaser”)      for    $120,000.            Daniel       was    elected

President of JDS and Howell Vice-President.                      Howell remained a

member of the board of directors. The agreement provided that: the

purchaser would receive 50% of the JDS stock; distribution of

profits would be made from time to time at the discretion of seller

and purchaser; seller and purchaser would each receive an annual

salary of $70,000;          seller was entitled to examine and inspect the

books, records, and accounts of the corporation; and, seller would

receive a monthly recap report from purchaser.                   The agreement also

provided that: no money would be borrowed against JDS unless agreed

upon in advance in writing by seller and purchaser; any purchases,

except for materials and supplies, must be agreed to by seller and

purchaser;     and, purchaser could acquire the remaining 50% of JDS

stock after a ten-year period.

      The agreement was amended on September 7, 1984, to provide,

inter alia: a reduction in Howell’s salary, a salary for Sydney for


                                         - 2 -
bookkeeping and typesetting, and a monthly car allowance of $789.83

for seller and purchaser for 29 months. On that same date, a

corporate resolution of J’S authorized any one of Daniel Nichol,

Sydney Nichol or Jesse Howell to write checks on the corporate

checking acocunt.

     The agreement, as amended, was modified on January 31, 1986,

wherein the parties acknowledged that JDS was having financial

difficulties, it was in the best interest of both parties that JDS

survive, and without financial concessions from the Howells, JDS

would be forced to liquidate and file bankruptcy.                Under the

modification, Howell waived any further salary and he resigned from

the board of directors, effective immediately.           It also provided

that 100% of the JDS stock would be released to the Nichols, free

and clear of any liens, upon payment of $165,000.

      During the third and fourth quarters of 1985 and the first

quarter of 1986, JDS did not remit        the federal withholding taxes

due the United States.        On July 28, 1986, the Internal Revenue

Service   (IRS)    assessed   Howell   and   the   Nichols   $31,890.15   as

responsible persons under 26 U.S.C. § 6672 for JDS’s employment tax

liabilities.      Under § 6672, “[a]ny person required to collect . .

. and pay over any tax . . . who willfully fails to . . . pay over

such tax . . . 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 accounted for and paid over.”


                                  - 3 -
       In 1988, the Nichols submitted amended tax returns on behalf

of JDS in which they attempted to eliminate the § 6672 liability

by stating that JDS had erroneously reported as wages certain

payments made to Howell when in fact the payments should have been

characterized as proceeds from the sale of stock.

       Howell subsequently filed an action seeking a refund of the

$868.92 payment he had made toward the § 6672 assessment and to

have   the   balance   of   the   penalty   abated.   In   response,    the

government filed a counterclaim against Howell for the unpaid

balance of the penalty, plus interest and statutory costs.              The

government filed a similar counterclaim against the Nichols.            The

parties moved for summary judgment.

       In its order granting the government’s motion for summary

judgment, the district court observed, inter alia: JDS failed to

pay employment taxes for the time period in question; for summary

judgment to issue in favor of the government it must prove             that

the taxpayers were “responsible persons” for JDS under § 6672 and

that the taxpayers willfully failed to pay JDS’s employment taxes;

Howell and the Nichols could prevail on their motion only “if they

establish that the tax returns filed by JDS during the period at

issue erroneously classified payments made for the purchase of

stock as payments made for salary.” (Corrected Appendix to Opening

Brief of Appellant, Part A at 6).

       The court also found/concluded: the Nichols do not dispute


                                    - 4 -
that they are responsible parties under § 6672; “[t]he evidence .

. . shows that Howell instructed JDS to give payment priority to

his salary, with other creditors receiving a lower priority.

Howell could have instructed        JDS to pay the IRS first, and then

his salary, but he did not.”          Id. at 16;   Howell “expressed a

preference as to which [creditors] should be paid” and “attempted

to influence the Nichols’ decision-making by means of violent

threats.”       Id.;   Howell “crossed the threshold of § 6672 . . .

[and] became a ‘responsible person.’” Id. at 17; although the

government agrees that Howell       threatened the Nichols with harm if

his payments were not made, “[t]he court does not find that threats

negate willfulness as used in § 6672.”          Id. at 18; Howell “had

access to the company’s books and accounts, and . . . notice of the

tax delinquencies. . . . [and] it [is] the combination of factors,

including Howell’s role in determining the company’s payment of

creditors, which requires the court to impose responsibility on

him.”       Id. at 21; and, the amended tax returns submitted by JDS did

not effectively reclassify the salary payments made to Howell as

payments for stock.        Howell and the Nichols appealed.1

        On appeal, Howell contends that the district court erred in

granting summary judgment by failing to recognize the existence of

genuine issues of material fact which precluded summary judgment in



      After briefs had been submitted but prior to oral argument,
        1

the Nichols settled with the government.

                                   - 5 -
favor of the government.        The government responds that there were

sufficient undisputed facts to support summary judgment in its

favor.

                                         I.

         We review the district court’s grant of summary judgment de

novo,     Ellis v. United Airlines, 73 F.3d 999, 1003 (10th Cir.

1996), applying the same legal standard used by the district court

under Fed.R.Civ.P. 56(c). Crow Tribe of Indians v. Repsis, 73 F.3d

982, 986 (10th Cir. 1995).        Even though all the parties moved for

summary    judgment,     this   does   not     change   the    district   court’s

consideration or our standard of review.                E.E.O.C. v. Steamship

Clerks Union, Local 1066, 48 F.3d 594, 603 n.8 (1st Cir.), cert.

denied, ___ U.S. ___ (1995).           Although cross motions for summary

judgment were filed by the parties, this did not permit the entry

of summary judgment if disputes remained as to material facts.

Harrison Western Corporation v. Gulf Oil Co., 662 F.2d 690, 692

(10th    Cir.   1991).    See   also    Cargill    Inc.   v.    Charles   Kowsky

Resources, Inc., 949 F.2d 51, 55 (2nd Cir. 1991) (“Even though both

parties move for summary judgment and even though they agree that

there are no issues of fact, the court may still find that factual

issues exist.”).

                                       II.

        Howell contends that the district court erred by deciding the

issue of his status as a responsible person under § 6672 on the


                                       - 6 -
government’s motion for summary judgment rather than allowing the

matter to proceed to trial.   He argues that there existed genuine

issues of material fact, including      who controlled JDS’s finances,

and who had the power to determine which of JDS’s creditors would

be paid, which made summary judgment improper.

     “Courts have generally given broad interpretation to the term

‘responsible person’ under § 6672.”       Denbo v. United States, 988

F.2d 1029, 1032 (10th Cir. 1993).    In Denbo, we held:

     A person is responsible with the meaning of the statute
     if that person is required to collect, truthfully account
     for or pay over any taxes withheld from the wages of a
     company’s employees. . . .       The responsible person
     generally is, but need not be, a managing officer or
     employee, and there may be more than one responsible
     person. . . . Indicia of responsibility include the
     holding of corporate office, control over financial
     affairs, the authority to disburse corporate funds, stock
     ownership, and the ability to hire and fire employees. .
     . . Among other things therefore, a corporate officer or
     employee is responsible if he or she has significant,
     though not necessarily exclusive, authority in the
     ‘general management and fiscal decision making of the
     corporation.’

                        *        *           *

          [W]hile it is clear that [the president] exercised
     greater control over the corporation than Denbo,
     ‘[s]ection 6672 does not confine liability for the unpaid
     taxes only to the single officer with the greatest or the
     closest control over corporate affairs.’ . . . It
     suffices that Denbo had ‘significant, as opposed to
     absolute, control of the corporation’s finances.’

                        *        *           *

     A responsible person’s     failure to investigate or to
     correct   mismanagement    after   being  notified  that
     withholding taxes have     not been paid satisfies the
     section 6672 willfulness   requirement.

                                - 7 -
988 F.2d at 1032-33 (citations omitted).

     See also Taylor v. Internal Revenue Service, 69 F.3d 411, 416

(10th Cir. 1995)(person with sufficient indicia of responsibility

is a responsible person under § 6672 regardless of whether he has

final say as to which creditors should be paid); Muck v. United

States,   3     F.3d   1378,   1381 (10th Cir. 1993)(the existence            of

significant,       though      not   necessarily     exclusive     authority,

“irrespective of whether that authority is actually exercised, is

determinative” of whether a corporate employee or officer is a

responsible person under § 6672).

     “‘[S]ummary judgment is appropriate [only] when there is no

genuine issue over a material fact and the moving party is entitled

to summary judgment as a matter of law’ . . . [and] ‘we must view

the record in the light most favorable to the parties opposing the

motion    for    summary    judgment.’”   Crow     Tribe,   73   F.3d   at   986

(citations omitted).

     In concluding that Howell was a responsible person under §

6672, the district court relied on the undisputed facts that:

Howell was an officer and director of JDS, Howell owned 50% of JDS

stock, and Howell had check writing authority for the corporation.

The court also relied on various provisions within the sales

agreement: all profit distributions were at the discretion of both

the seller and purchaser; seller had the right to examine and

inspect the books, records, and accounts of JDS; seller was to be


                                     - 8 -
supplied a monthly recap report sheet for JDS; all money borrowed

by   JDS    had   to    be     agreed upon in advance by the seller and

purchaser; and any purchases, excluding materials and supplies,

were to be agreed upon by the seller and purchaser.

        The district court further considered and relied upon, inter

alia: the testimony of the Nichols and M. W. Pickett that Howell

threatened to kill Daniel if he was not paid in accordance with the

sales agreement in finding that “[m]ortal threats by a director and

vice-president of a company against the president of that company

are indicative of an effort to control the payment of funds to

creditors,” (Corrected Appendix to Opening Brief of Appellant, Part

A at 11-12); Daniel’s testimony that Howell controlled the books

for a period of time after the sale, in finding that “[i]n

actuality, for much of a year, Howell may have enjoyed greater

access to the JDS’s records than its owners,”                 id. at 14-15; the

testimony of the             Nichols that Howell consulted with them about

which      creditors     to     pay   in   finding   that   “Howell   could   have

instructed JDS to pay the IRS first, and then his salary, but he

did not,”         and that “Howell was in a position to prevent the

default from occurring. . . .”              Id. at 15-16.

        The court relied on these findings in concluding that Howell

was a responsible person under § 6672.               However, not all of these

findings     were      based    on undisputed facts.         It is undisputed,

however, that in terms of control or the right to exercise control


                                           - 9 -
over JDS during the time period here involved, Howell served as

vice-president, director and a 50% shareholder of the corporation

at all times in 1985. In addition, the Purchase Agreement provided

Howell with substantial authority over distribution of profits,

borrowing, purchases, the right to inspect JDS’s books and records,

and to receive a monthly recap report. During the entire period at

issue, Howell also exercised check writing authority over the

corporate checking account.

       We agree that these undisputed facts justified the district

court’s conclusion that Howell was a responsible party with respect

to JDS, and thus under a duty to collect and pay over the federal

income and social security taxes withheld from the wages of JDS’s

employees to the government. Responsibility is a matter of status,

duty, and authority.

       We hold that the district court did not err in concluding that

Howell was a responsible person under § 6672.



                                     III.

       Howell contends that “the district court erred when it failed

to recognize the existence of the unresolved genuine disputes of

material facts regarding [his] alleged wilful [sic] failure to pay

JDS Systems, Inc.’s employment taxes under the meaning of I.R.C. §

6672.”    (Corrected Opening Brief of Appellant at 21).              He argues

that   because   the   issue   of   his     willful   failure   to    pay   the


                                    - 10 -
withholding taxes was in dispute, and inasmuch as the district

court “appears to have written an order for a trial that has yet to

take place,” the order of the district court granting summary

judgment in favor of the government must be reversed and the case

remanded for trial.         Id.    We agree.

     In Thomas v. International Business Machines, 48 F.3d 478, 484

(10th Cir. 1995), we held that the party moving for summary

judgment has the burden of showing that there is an absence of

evidence to support the non-movant’s case, and that the court must

examine the factual record and all reasonable inferences in the

light most favorable to the non-movant.              Here, the government

cannot   point   to   the    absence of evidence to support          Howell’s

contention     that   he     did    not   act   willfully   under   §   6672.

Furthermore, the district court failed to examine the factual

record in the light most favorable to Howell in granting the

government’s motion for summary judgment on the issue of Howell’s

willfulness.     In TPLC, Inc. v. United Nat. Ins. Co., 44 F.3d 1484,

1489 (10th Cir. 1995), we held that at the summary judgment stage,

the court may not weigh the evidence to determine the truth, but

rather must decide only whether there is a genuine issue for trial.

If the district court is required to adjudicate factual issues, the

case is not ripe for summary judgment.          IBEW Local Union No. 969 v.

Babcock & Wilcox, 826 F.2d 962, 964 (10th Cir. 1987).               Here, the

district court did adjudicate factual issues.


                                      - 11 -
        If the moving party shows the absence of a genuine issue of

material fact upon a motion for summary judgment as required under

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the non-movant

“may not rest upon mere allegations or denials” of the pleadings,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), but must

produce evidence creating a genuine issue of material fact to be

resolved at trial.           Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir.

1995).       Here, Howell’s depositional testimony is at complete odds

with the government’s contentions on the issue of his willfulness

under    §    6672.         This   creates      a    credibility      issue   for    trial

determination.         See    Applied     Genetics         Intern.,    Inc.   v.     First

Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

Anderson observed that a fact is “material” only if it “might

affect the outcome of the suit under the governing law” and the

dispute      is     “genuine”      only   “if       the   evidence    is   such     that   a

reasonable jury could return a verdict for the non-moving party.”

477   U.S.     at    248.      Howell’s depositional testimony created a

credibility issue for trial determination by the fact finder.

        Howell’s depositional testimony disavowed any association with

JDS and any knowledge of JDS’s tax problems during the third and

fourth quarters of 1985 and the first quarter of 1996:

        Q. The third and fourth quarter of ‘85 and the first
        quarter of ‘86. That’s why we are here, and those are
        the taxes that weren’t paid, and that’s the issue of the
        case. Do you understand that?

        A. Okay.      Yes, I do.

                                          - 12 -
Q. Who was running the company in that period at issue?

A. Danny Nichols ran the company from the time I sold him
and he became president, in that period.

Q. Okay.   What was your role in the company?

A. Really I had no role in the company whatsoever. I had
told Danny that I would help him with any problems that
I could, and I lived on the farm and took care of and was
trying to build my place up there, is what I was trying
to do in this period of time.

Q. So you basically just told him that you would help him
if he needed any help?

A. That’s right.

Q. Did you do anything else with respect to the company?

A. No, sir.

Q. Did you go onto the company premises?

A. Not that I can remember. I might have at one time or
another or something, but you know, it wouldn’t have been
on a regular basis.

                     *            *        *

Q. During that period at issue, though, did you write any
checks?

A. From the time that --- no, I did not.

Q. So Danny and Sydney wrote the checks?

A. Yes, they did.

                     *            *        *

Q. So your answer is that, during the period at issue,
you didn’t receive any financial information?

A. No, sir, I did not.

Q. Did they tell you that the taxes weren’t being paid
during that period?

                         - 13 -
     A. No, sir, they did not.     I was not aware of the tax
     problem that they had.

     Q. They didn’t tell you that they were having problems
     with the taxes?

     A. No, they did not.

     Q. Did you know that the company was having financial
     problems?

     A. No more than it ever did. I always had, you know, I’d
     have a good month and I’d have a rough month, and I’d
     have, you know, its ups and downs, but I always made good
     money.

     Q. But during the period at issue, did you know that the
     company was having financial problems?

     A. When I went to Danny’s house, I was pretty well under
     the understanding that there was something wrong, yes,
     and at that point Danny and I didn’t communicate on
     anything. He handled everything himself. They did not
     communicate with me, they did not send me financial
     statements. I had no way of knowing what the business
     was doing.

     Q. But you knew it was in trouble?

     A. Well, I knew that they weren’t paying me, so, you
     know, that’s all I knew.

                            *            *        *

     Q. . . . . Did you ever threaten Danny personally on
     paying the notes?

     A. I’d have to answer that no. . . . I was raised that if
     you have an argument you go outside and settle it, you
     know, but did not threaten --

(Corrected Appendix to Opening Brief of Appellant, Part A at 13-

14, 21-22, 25).

     Howell is liable under § 6672 only if he “willfully” failed

to comply with the statute.     In Denbo, we defined “willfulness”

                                - 14 -
to be:

           Willfulness, in the context of section 6672 means a
      ‘voluntary, conscious and intentional decision to prefer
      other creditors over the government. . . .’ Although
      negligence does not give rise to section 6672 liability,
      “‘the willfulness requirement is ... met if the
      responsible officer shows a “reckless disregard of a
      known or obvious risk that trust funds may not be
      remitted to the government. . . .”’”       A responsible
      person’s   failure   to   investigate   or   to   correct
      mismanagement after being notified that withholding taxes
      have not been paid satisfies the section 6672 willfulness
      requirement. . . .

788   F.2d at 1033 (citations omitted).

      Applying these standards, and mindful that summary judgment is

appropriate only “when there is no genuine dispute over a material

fact,” we hold that the district court erred in finding/concluding

that Howell    acted “willfully” for purposes of      § 6672.   Howell

testified that he did not have any role in JDS whatsoever during the

time in question and that he did not have any knowledge of JDS’ tax

problems.   Howell’s testimony created genuine disputes of material

facts,   rendering   the   district   court’s   finding/conclusion   of

willfulness on the summary judgment motion improper.

                                  IV.

      Howell contends that the district court erred when it relied

heavily on inadmissible hearsay in granting summary judgment in

favor of the government.     We elect not to reach this issue in view

of our holding that the district court erred in granting the

government’s motion for summary judgment on the issue of Howell’s

willfulness.

                                 - 15 -
     AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.

                        Entered for the Court:

                        James E. Barrett,
                        Senior United States
                        Circuit Judge




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