
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1872                             IN RE:  EDOUARD GADOURY, JR.                                 ____________________                                EDOUARD GADOURY, JR.,                                      Appellant,                                          v.                               UNITED STATES OF AMERICA                            FOR INTERNAL REVENUE SERVICE,                                      Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            Guido R. Salvadore for appellant.            __________________            Alice L. Ronk  with whom Lorretta  C. Argrett,  Assistant Attorney            _____________            ____________________        General, Gary R. Allen, David  English Carmack and Sheldon Whitehouse,                 _____________  ______________________     __________________        United States Attorney, were on brief for appellee.        ______________________                                 ____________________                                  February 26, 1996                                 ____________________                 Per Curiam.  Edouard Gadoury, Jr.'s appeal covers an                 ___________             unfavorable decision by the Internal Revenue Service that he               is a responsible person who willfully failed to pay over               withheld payroll taxes, 26 U.S.C.   6672,1 the burden of             proof being upon him, Caterino v. United States, 794 F.2d 1                                   ________    _____________            (1st Cir. 1986), cert. denied, 480 U.S. 905 (1987); a finding                             ____________              supporting the IRS by the United States Bankruptcy Court;2            findings by a magistrate concluding that the bankruptcy court               had not committed clear error, and the district court's              confirmation of the magistrate's findings.  Proof of clear             error is Gadoury's burden throughout; we do not have de novo                                                                  _______                 review.  Id. at 5.  Unhappily, he has not succeeded.                          ___             We consider first a procedural point, in fact but a straw to               which Gadoury, understandably, would cling.  When, by a              course that we need not consider, he found himself in the              bankruptcy court, Gadoury filed a motion for the court to             determine that he had no   6672 liability.  The government,                                            ____________________            1.        (a) General rule.  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. . . .            2.  Gadoury having ended up in a Chapter 7 proceeding.                                         -2-              erroneously interpreting the motion to be merely a request            for a hearing, awaited the court's response, only to discover              that the response was to allow the motion, in light of the              government's failure to reply.  The government then sought            vigorously to have the order vacated under Fed.R.Civ.P. 55(e)             (made applicable to adversary proceedings by Bankr. R. 7055)              which prohibits entry of default against the United States               unless plaintiff has presented evidence on the merits.              Alternatively, it asserted good cause under Rule 55(c).  We              find no error either way in the court's rescission of the                           order and proceeding to a trial.              Our substantive start and, indeed, finish, is whether the               district court properly refused to reject the bankruptcy            findings that Gadoury was responsible, and "willfully" failed             to pay the payroll taxes, aided by the IRS's presumption of               correctness with which it entered the bankruptcy court.               Caterino, 794 F.2d at 5.  We are further reminded by that              ________                opinion that such findings may be aided by unexpressed            inferences if they reasonably appear to have been intended by              the court.  794 F.2d at 6 n.2.  Some of the facts found by             the bankruptcy court, plus some stipulated, are as follows:             Gadoury was hired by Sprague Company in 1986 as bookkeeper.              His title was changed to Controller.  As such he was not an            officer, but he could sign company checks, solo, and did sign              company tax returns and tax checks.  The bankruptcy court,                                         -3-            however, correctly ruled, "[T]he cases do say again and again            that just mere check writing authority is not enough."  There             was, of course, more.  The court found, on evidence that it             believed, as well as the parties' stipulations, that Gadoury              had significant control over disbursement of the company's            funds, making him a responsible person.  For good measure, it             also found that he had received no special instructions not              to pay.3  Gadoury fully disputed this evidence.  Looked at             most favorably to him it might be possible to find, in light             of the company's business straits and poor cash flow, he not              only had special instructions not to pay, but that a broad              order from his superior reduced his authority altogether,              with his superior taking over his duties.  The difficulty            here is that the superior denied this, and the court believed              him.  The fact that the court failed to discuss Gadoury's             evidence, or state why it was not persuasive, does not make                          its contrary findings clear error.              As to willfulness, Gadoury admitted that he was aware the            taxes were not being paid, that he urged them to be paid, but              that he failed to take any steps to see that they were in                       fact paid.  There is no more to be said.                                      Affirmed.                                      _________                                            ____________________            3.  For the possible importance of such, see Howard v. United                                                         ______    ______            States, 711 F.2d 729 (5th Cir. 1983).            ______                                         -4-
