Erwin v. United States

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CHARLES B. ERWIN, 
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,  No. 08-1564
v.
STEPHEN C. COGGIN; WILLIAM G.
PINTNER; JAMES BARRY LIGHT;
HARTSELL B. LIGHT, JR.,
Third Party Defendants.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., Chief District Judge.
(1:06-cv-00059-JAB-WWD)

Argued: September 23, 2009

Decided: January 13, 2010

Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Irene M. KEELEY, United States District Judge
for the Northern District of West Virginia,
sitting by designation.

Affirmed by published opinion. Judge Motz wrote the major-
ity opinion, in which Judge Keeley joined. Senior Judge Ham-
ilton wrote a dissenting opinion.
2 ERWIN v. UNITED STATES
COUNSEL

ARGUED: Emma Claire Merritt, TUGGLE, DUGGINS &
MESCHAN, PA, Greensboro, North Carolina, for Appellant.
Christine Durney Mason, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
J. Nathan Duggins, III, TUGGLE, DUGGINS & MESCHAN,
PA, Greensboro, North Carolina, for Appellant. John A.
DiCicco, Acting Assistant Attorney General, Kenneth L.
Greene, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Anna Mills S. Wagoner, United States
Attorney, Greensboro, North Carolina, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This appeal arises from the district court’s imposition of
personal liability on Charles Erwin for payroll withholding
taxes owed by GC Affordable Dining, Inc. ("GCAD"). Erwin
owned a one-third interest in GCAD and served as a GCAD
corporate officer and director, and, on behalf of GCAD,
selected business sites, hired and fired employees, and negoti-
ated and personally guaranteed loans and other contracts for
the company. The district court held as a matter of law that
Erwin (1) was responsible for payment of these taxes and (2)
willfully failed to pay them. Erwin challenges both holdings
on appeal. For the reasons that follow, we affirm.

I.

Over the last 25 years, Erwin, a North Carolina entrepre-
neur, has owned or operated at least 60 restaurants. In June
1994, Erwin joined with three other North Carolina
businessmen—Geoffrey Grenert, Stephen Coggin, and John
Miracle—to form GCAD, a franchisee of Golden Corral
 ERWIN v. UNITED STATES 3
Franchising System, Inc. ("Golden Corral"). GCAD eventu-
ally opened and operated five Golden Corral restaurants.

At GCAD’s founding, Erwin and Grenert each owned one
third of the corporate stock; Coggin and Miracle each owned
one sixth of the stock. Shortly thereafter, Grenert left the
enterprise; eventually, Miracle sold his interest in GCAD to
Mark Cole. But at all times, Erwin retained at least a one-third
interest in the company.

In addition to owning all of the corporate stock in GCAD,
Erwin and his partners served as its directors and officers.
Coggin served as president, Miracle (and later Cole) as vice
president, and Erwin as vice president, secretary, and treasurer.1
The partners hired two managers to oversee day-to-day opera-
tions, payroll, and accounting.

In early 1995, Erwin and his partners—along with their
wives—personally guaranteed construction and operating
lines of credit with First Union Bank for GCAD. Erwin and
his partners also secured a construction line of credit for a
corporation, Tiffany, LLC, which they established as a flow-
through real estate holding company for GCAD. Tiffany
leased or purchased land and equipment for the restaurants;
GCAD, in turn, leased the land and equipment from Tiffany.

Erwin participated in selecting sites for the restaurants and
signed lease-related documents for all restaurant locations on
behalf of both Tiffany and GCAD. Erwin also personally
guaranteed rent payments on at least four of the leases, and
personally guaranteed lines of credit from food vendors for
the benefit of the GCAD restaurants.

Despite early profits, the GCAD restaurants soon began to
1
In his original IRS claim, Erwin did not acknowledge his service as
treasurer of GCAD. In deposition, however, he conceded that he had held
that position.
4 ERWIN v. UNITED STATES
lose money. In January 1997, Erwin and his partners decided
to fire one of the original day-to-day managers and consoli-
date operations under the other. Erwin expressly acknowl-
edged his "involve[ment]" in both decisions. During 1997,
Erwin conferred at least weekly with Coggin regarding
GCAD’s affairs. Moreover, Erwin and his partners met
monthly during 1997, and at least quarterly in 1998, to discuss
GCAD matters. In an effort to improve business, Erwin also
visited the GCAD restaurants and met with store managers
during 1997 and 1998.

Unfortunately, business did not improve. GCAD had a neg-
ative operating cash flow of $2 million by the end of 1997,
and thus had difficulty paying its creditors. In early 1998,
Erwin and Coggin negotiated a payment plan to settle GCAD
debts owed to one food vendor, LoPresti, with whom Erwin
had personally guaranteed GCAD’s line of credit.

During this period, Erwin and his partners decided to
replace the remaining original manager with William Pintner,
a seasoned Golden Corral employee. On a weekly basis, Pint-
ner and Erwin discussed sales figures and strategies to
increase profits.2 Early in Pintner’s tenure, he recommended
that the partners fire their accountant and hire Barry and
Buddy Light (the "Light brothers") to handle accounting and
payroll for GCAD; the partners followed this advice.

Despite these efforts, GCAD continued to lose money. In
December 1998, Erwin and his partners learned that the Light
brothers had failed to pay the entire quarterly payroll tax with-
holdings for the third quarter of 1998. The partners made a
2
Pintner testified in deposition that he spoke to Erwin daily regarding
sales and the performance of individual stores, and that Erwin visited the
stores every month or two. Pintner further testified that Erwin directed the
payment of GCAD’s bills. As to the latter claim, in deposition, Erwin nei-
ther admitted nor expressly denied Pintner’s testimony, testifying only, "I
can’t say whether I ever [directed payment of bills]. I know it was not a
practice."
 ERWIN v. UNITED STATES 5
capital call for approximately $150,000 and wired the money
to the Light brothers with instructions. Erwin, who contrib-
uted $95,000 of the $150,000, testified that he personally
instructed the Light brothers "that absolutely under no cir-
cumstances whatsoever were [the Light brothers] ever to be
late with any taxes." Despite Erwin’s admonition, the Light
brothers failed to pay in full the payroll taxes for the fourth
quarter of 1998.

Coggin testified that in late 1998, he and Erwin also sent
the Light brothers $50,000 for additional payment to the
favored food vendor, LoPresti, and instructed the Light broth-
ers not to pay the rent because Erwin and Coggin themselves
would handle the rent payments directly. Erwin never testified
to the contrary.

Also in late 1998, Erwin became involved in negotiations
—which became final in May 1999—to release GCAD from
obligations under one of its leases. The landlord, seeking to
terminate the lease to accommodate another party, agreed to
wire $1.65 million to CNL American Properties Fund, Inc.
("CNL"), a company financing GCAD’s restaurant building
and equipment, to cover rents GCAD owed CNL on that and
other leases. At that time GCAD—and Erwin as personal
guarantor—owed CNL substantial rental payments.

GCAD’s financial condition continued to worsen through-
out 1999, and GCAD did not pay in full its withholding taxes
for the first three quarters of that year. In August 1999, Erwin
and his two partners learned of this latest delinquency. In
December 1999, the partners made another capital contribu-
tion of $50,000 to help cure these deficiencies, but GCAD
never paid the taxes in full. Nevertheless, Erwin and his part-
ners continued to employ the Light brothers.

In February 2000, Erwin and his partners finally fired the
Light brothers. After doing so, Erwin decided to take control
of GCAD accounting functions, including payroll. He moved
6 ERWIN v. UNITED STATES
GCAD’s financial operations from Ohio to the North Carolina
offices of his solely owned company, Chelda. After that time,
GCAD remained current on its payroll withholding payments.
In late 2000, Erwin became the 100 percent owner of GCAD;
shortly thereafter he dissolved the corporation. Between
August 1999 and the close of business in 2000, the GCAD
restaurants generated approximately $5 million in sales reve-
nue. Rather than paying the outstanding 1998 and 1999 tax
deficiencies, however, GCAD continued to pay rent and sup-
plier expenses. Erwin acknowledged that, pursuant to his
direction, GCAD paid its landlord and suppliers rather than
the IRS; he maintained that GCAD did so because this was
the only way to remain in business.

Following the demise of GCAD, the IRS assessed tax defi-
ciencies against Erwin in the amount of the unpaid payroll
withholding taxes owed by GCAD. Erwin paid a portion of
the assessed amounts and then brought this action against the
United States to recover those amounts. The Government
counterclaimed for $264,579, the amount of GCAD’s unpaid
deficiencies from the fourth quarter of 1998 and the first three
quarters of 1999, plus interest. The United States subse-
quently filed third-party complaints against Coggin, Pintner,
and the Light brothers.

The parties filed cross motions for summary judgment. The
district court, adopting the recommendation of the magistrate
judge, denied Erwin’s motion and granted the Government’s.
The court also granted the Government’s motions to issue a
final judgment against Erwin and stay the proceedings against
Coggin, Pintner, and the Light brothers pending the outcome
of Erwin’s anticipated appeal.

Erwin timely noted this appeal.

II.

The Internal Revenue Code requires employers to withhold
social security and federal excise taxes from their employees’
 ERWIN v. UNITED STATES 7
wages. See 26 U.S.C. §§ 3402(a), 3102(a) (2006); Plett v.
United States, 185 F.3d 216, 218 (4th Cir. 1999). The
employer holds these monies in trust for the United States. 26
U.S.C. § 7501(a) (2006). Accordingly, courts often refer to
the withheld amounts as "trust fund taxes"; these monies exist
for the exclusive use of the government, not the employer. See
Plett, 185 F.3d at 218. Payment of these trust fund taxes is
"no[t] excuse[d]" merely because "as a matter of sound busi-
ness judgment, the money was paid to suppliers . . . in order
to keep the corporation operating as a going concern—the
government cannot be made an unwilling partner in a floun-
dering business." Collins v. United States, 848 F.2d 740,
741–42 (6th Cir. 1988).

The Code "assure[s] compliance by the employer with its
obligation . . . to pay" trust fund taxes by imposing personal
liability on officers or agents of the employer responsible for
"the employer’s decisions regarding withholding and pay-
ment" of the taxes. Slodov v. United States, 436 U.S. 238, 247
(1978) (interpreting 26 U.S.C. § 6672 (2006)). To that end,
§ 6672(a) of the Code provides that "[a]ny person required to
collect, truthfully account for, and pay over any tax . . . who
willfully fails" to do so shall be personally liable for "a pen-
alty equal to the total amount of the tax evaded, or not . . .
paid over." 26 U.S.C. § 6672(a). Although labeled as a "pen-
alty," § 6672 does not actually punish; rather, it "brings to the
government only the same amount to which it was entitled by
way of the tax." Turnbull v. United States, 929 F.2d 173, 178
n.6 (5th Cir. 1991) (internal quotation marks omitted).

Personal liability for a corporation’s trust fund taxes
extends to any person who (1) is "responsible" for collection
and payment of those taxes, and (2) "willfully fail[s]" to see
that the taxes are paid. Plett, 185 F.3d at 218; O’Connor v.
United States, 956 F.2d 48, 50 (4th Cir. 1992). Once the Gov-
ernment assesses a taxpayer for this liability, the taxpayer has
the burden of proof at trial on both elements of § 6672 liabil-
ity. See O’Connor, 956 F.2d at 50.
8 ERWIN v. UNITED STATES
But we review de novo a district court’s grant of summary
judgment to the Government, resolving all disputed facts in
favor of the taxpayer. See O’Connor, 956 F.2d at 50. Of
course, to defeat summary judgment, the taxpayer (like any
other litigant) must identify an error of law or a genuine issue
of material fact; the taxpayer cannot create a material fact by
reliance on conclusory allegations or bare denials. See Fed. R.
Civ. P. 56(c), (e); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986); see also Bouchat v. Balt. Ravens Football
Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). Moreover, a
material fact is one "that might affect the outcome of the suit
under the governing law." Anderson, 477 U.S. at 248.

"[I]n the absence of disputed material facts, summary judg-
ment represents a favored mechanism to secure the ‘just,
speedy, and inexpensive determination’" of taxpayer liability
under § 6672. Plett, 185 F.3d at 223 (quoting Fed. R. Civ. P.
1); see also Barnett v. IRS, 988 F.2d 1449, 1454 & n.10 (5th
Cir. 1993) (stating that, although the facts in a § 6672 analysis
are critical, "extensive caselaw . . . narrowly constrains a fact-
finder’s province in § 6672 cases," and noting that for this
reason "countless courts have found responsibility [for pur-
poses of § 6672] as a matter of law").3

With these principles in mind, we turn to Erwin’s conten-
tion that the district court erred in holding, as a matter of law,
that Erwin (1) was a person responsible for the payment of
GCAD’s withholding taxes, and (2) willfully failed to pay
those taxes. We consider each argument in turn.
3
See generally C.T. Drechsler, Annotation, Construction, Application,
and Effect, with Respect to Withholding, Social Security, and Unemploy-
ment Compensation Taxes, of Statutes Imposing Penalties for Tax Evasion
or Default, 22 A.L.R.3d 8, § 4 & Supp. (1968) (collecting cases in which
courts have found responsibility for § 6672 purposes as a matter of law);
Edward A. Nolfi, Annotation, When Are Persons Other Than Owners,
Directors, Officers, and Employees Potentially Liable for Penalties Under
IRC § 6672 (26 U.S.C.A § 6672), Concerning Failure to Collect and Pay
Over Tax, 84 A.L.R. Fed. 170, §§ 3-31 & Supp. (1987) (same).
 ERWIN v. UNITED STATES 9
III.

Although the Code defines a responsible person as one "re-
quired to collect, truthfully account for, and pay over any
tax," 26 U.S.C. § 6672(a) (emphasis added), the Supreme
Court has interpreted this language to apply to all "persons
responsible for collection of third-party taxes and not . . .
[only] to those persons in a position to perform all three of the
enumerated duties." Slodov, 436 U.S. at 250. Thus, the Code
deems anyone required to "collect" or "account for" or
"remit" taxes a "responsible person" for purposes of § 6672.
See Plett, 185 F.3d at 219.

More than one person may be held responsible for a corpo-
ration’s payroll taxes. Indeed, "[t]he term ‘responsible person’
is broad and may include many individuals connected with a
corporation." O’Connor, 956 F.2d at 50; see also Barnett, 988
F.2d at 1455 ("[T]here usually are . . . multiple responsible
persons in any company."). Assessing whether a "person has
the statutorily imposed duty to make the tax payments" con-
stitutes the "key element" in determining responsible person
status. O’Connor, 956 F.2d at 51. "This duty is considered in
light of the person’s authority over an enterprise’s finances or
general decision making[,] . . . [and] is generally found in
high corporate officials charged with general control over cor-
porate business affairs who participate in decisions concern-
ing payment of creditors and disbursement of funds." Id.
(citation omitted).

Titular authority alone does not establish responsible per-
son status. Rather, the proper inquiry focuses "on substance
rather than form." Id. "The substance of the circumstances
must be such that the officer exercises and uses his authority
over financial affairs or general management, or is under a
duty to do so, before that officer can be deemed to be a
responsible person." Id. Put another way, the essential inquiry
is whether a person has significant, but not necessarily exclu-
sive, authority over corporate finances or management deci-
10 ERWIN v. UNITED STATES
sions. See Plett, 185 F.3d at 222; see also Kinnie v. United
States, 994 F.2d 279, 283-84 (6th Cir. 1993).

We have developed a non-exhaustive list of factors to con-
sider in determining whether "the substance of the circum-
stances" establishes responsible person status under § 6672.
Thus, we examine whether the employee (1) served as an offi-
cer or director of the company; (2) controlled the company’s
payroll; (3) determined which creditors to pay and when to
pay them; (4) participated in the corporation’s day-to-day
management; (5) had the ability to hire and fire employees;
and (6) possessed the power to write checks. Plett, 185 F.3d
at 219; see also O’Connor, 956 F.2d at 51. No single factor
controls; rather, we consider the "totality of the circum-
stances." See Vinick v. United States, 205 F.3d 1, 8 (1st Cir.
2000); see also Barnett, 988 F.2d at 1455; O’Connor, 956
F.2d at 51.

In this case, the undisputed facts demonstrate that Erwin
was a "responsible person" for § 6672 purposes with respect
to GCAD’s payroll taxes. While not every Plett factor so indi-
cates, most do. Moreover, the totality of the circumstances
conclusively establishes that Erwin had the "effective power"
to pay the taxes owed by GCAD. Barnett, 988 F.2d at 1454.

As to the first factor, it is undisputed that Erwin founded
and served as an officer of GCAD. In fact, Erwin continually
served as secretary, treasurer, vice-president, and director of
the corporation throughout its existence and, at all times,
owned at least a one-third interest in GCAD. Although Erwin
asserts that he acted as a mere "passive investor[] who con-
tributed capital and [only] held the title[s] to protect his inter-
est in the venture," the evidence establishes that in fact his
involvement in GCAD was substantial. Erwin was the only
GCAD owner with any experience in the restaurant business,
and he himself acknowledged in deposition his active involve-
ment in corporate decisions.
 ERWIN v. UNITED STATES 11
With respect to the second factor, although Erwin and his
two partners did not directly manage GCAD’s payroll, they
exercised substantial supervisory authority over the manage-
ment team—Pintner and the Light brothers—who did control
payroll. Moreover, Erwin conceded that he participated in set-
ting financial policy for GCAD and, on occasion, directed
payment of GCAD’s withholding taxes. See Kinnie, 994 F.2d
at 284 (stating that a taxpayer need not "always exercise his
powers" to remain responsible for seeing that withholding
taxes are paid, and "may not escape liability by delegating the
task of paying over the taxes to someone else").

Furthermore, within months of learning of GCAD’s tax
deficiencies, Erwin took complete control of GCAD’s finan-
cial operations, which establishes his authority to do so.
Erwin himself had no doubt as to his authority over the com-
pany’s payroll, testifying that, had he learned of the Light
brothers’ failures to remit payroll withholding taxes during
the first quarter of 1999, "a lot of things would have happened
differently." Erwin testified that he would have taken reme-
dial action at that time, noting that "as soon as [he] did find
out" about the deficiencies, "[he] did bring all the accounting
back to [his] office." Although Erwin did not seize control of
GCAD during the tax periods at issue here, his subsequent
exercise of authority over all of GCAD’s financial operations
certainly "cast[s] light on" the question of whether he was "a
responsible person" during those periods. Vinick, 205 F.3d at
11 n.8.

With respect to the third factor, the undisputed facts dem-
onstrate that Erwin, along with Coggin, indeed determined, on
more than one occasion, which GCAD creditors to pay and
when to pay them. In January 1998, Erwin and Coggin negoti-
ated a payment plan with a food vendor, LoPresti, to pay debt
owed by GCAD on a line of credit, which Erwin had person-
ally guaranteed. Later in that same year, Erwin and Coggin
infused $50,000 into GCAD, directing more payments to
LoPresti and (according to Coggin and undisputed by Erwin
12 ERWIN v. UNITED STATES
himself) took over the rent payments to CNL, a GCAD land-
lord whose rent payments Erwin had also personally guaran-
teed. Moreover, from December 1998 through May 1999,
Erwin, along with Coggin, negotiated a buy-out of one of
GCAD’s leases, which resulted in an additional payment of
$1.65 million to CNL to cover rent owed on that and other
leases.

Thus, during the tax periods at issue, Erwin actively negoti-
ated substantial payments to GCAD creditors on lines of
credit and loans, some of which he had personally guaranteed.
Erwin’s personal guarantees of these lines of credit and other
debts do not alone establish his status as a responsible person.
But the undisputed evidence that Erwin negotiated payments
to these preferred creditors offers additional strong support for
the conclusion that he "use[d] his authority over financial
affairs" of GCAD. O’Connor, 956 F.2d at 51. In this way, he
again acted as a "responsible person" for purposes of § 6672
during the tax periods in question.

GCAD’s dealings with the IRS further demonstrate Erwin’s
control over the company’s financial priorities. In December
1998 and again in December 1999, Erwin and his partners
infused capital into GCAD and explicitly directed the Light
brothers to use that money to pay back taxes. Erwin testified
that he personally instructed the Light brothers to stay current
with GCAD’s payroll withholdings.4 Erwin also testified that
in 2000, when GCAD had significant revenues, he made the
business decision to keep the restaurants’ doors open by pay-
ing the landlord and suppliers instead of paying the back taxes
that GCAD owed from previous years.

As to the fourth factor, Erwin did not play the most active
4
In deposition, Erwin maintained that the Light brothers withheld infor-
mation, making it difficult to monitor GCAD’s finances. It is undisputed,
however, that Erwin had the authority to demand financial information
and to fire the Light brothers, as he ultimately did.
 ERWIN v. UNITED STATES 13
role in the day-to-day management of the corporation during
the relevant tax periods; rather he delegated much day-to-day
authority to others. But, of course, "delegation will not relieve
one of responsibility." Purcell v. United States, 1 F.3d 932,
937 (9th Cir. 1993); see also Kinnie, 994 F.2d at 284. More-
over, the undisputed facts establish that Erwin did involve
himself in the company’s general decision making and never
was, as he claims, a mere passive investor. Cf. O’Connor, 956
F.2d at 51-52 (finding question of fact as to responsible per-
son status when "passive investor" did not exercise authority
in managing the company, did not dictate the financial deci-
sions of the company, and had no authority to do so).

Erwin helped to choose sites for the corporation’s restau-
rants, negotiated and signed leases and other contracts on
behalf of the corporation, personally guaranteed lines of credit
and rent payments for the corporation, met with its restaurant
managers, and involved himself in negotiating payment plans
and buy-outs with corporate creditors. Thus, albeit to a lesser
extent than others, Erwin participated in the day-to-day man-
agement of the corporation.5

Consideration of the fifth factor—hiring and firing power
—also demonstrates that Erwin was a "responsible person"
for § 6672 purposes. Erwin himself acknowledged that he was
involved in the hiring and firing of both sets of accountants
and of all upper-level management. Indeed, in early 2000
Erwin took full control of the company’s operations and ulti-
mately made the decision to close GCAD. Of course the latter
conduct did not occur during the tax periods in issue, but it
is nonetheless relevant in establishing that Erwin was a con-
5
Notably, Erwin’s involvement in the regular affairs of the company
increased when Pintner came on board in early 1998, as Erwin went from
communicating monthly with the prior manager to having weekly discus-
sions with Pintner regarding sales figures. Cf. Vinick, 205 F.3d at 5 (noting
taxpayer, deemed not to be a responsible person, became less involved in
the affairs of the corporation during the non-payment periods).
14 ERWIN v. UNITED STATES
sistently active presence in important personnel decisions at
GCAD during its entire existence.

With respect to the sixth factor, we agree with Erwin that
the record does not demonstrate that he had check-writing
authority for GCAD during the relevant tax periods. Although
this factor weighs in favor of Erwin, we must consider it in
the "totality of the circumstances." See Vinick, 205 F.3d at 8;
see also Barnett, 988 F.2d at 1455; O’Connor, 956 F.2d at 51.
Those circumstances include inter alia Erwin’s exercise of
authority over GCAD’s finances by directing certain pay-
ments to privileged creditors during the tax periods in ques-
tion, and taking over GCAD’s day-to-day financial operations
and exercise of ultimate check-writing authority immediately
after the tax periods in question. Taken together, the undis-
puted facts of the case clearly evidence that during the rele-
vant tax periods Erwin had the power to exercise check-
writing authority had he chosen to do so. Compare Plett, 185
F.3d at 222 (finding "financial control . . . indisputably in the
hands of [the taxpayer]"), with Vinick, 205 F.3d at 11
(explaining that determining responsibility goes to "the cen-
tral question of power" and emphasizing that "[a]t no time did
[the taxpayer] exercise any decision-making authority over
which creditors [the corporation] paid").

Although in some cases questions as to responsible person
status under § 6672 cannot be resolved at summary judgment,
see, e.g., O’Connor, 956 F.2d at 51-52,6 in this case they
6
Erwin mistakenly places heavy reliance on O’Connor, in which the
taxpayer, although a fifty-percent owner of the corporation, did not dictate
any of the company’s financial decisions or set its financial policy, did not
decide which creditors should be paid, did not participate in any of the
company’s operational management, and did not hire or fire employees.
See O’Connor, 956 F.2d at 51. Rather, in stark contrast to Erwin’s active
role in GCAD, the taxpayer in O’Connor merely provided the operational
cash for the company and received periodic financial reports. Id. Our
friend in dissent (who authored O’Connor) does not similarly contend that
O’Connor assists Erwin.
 ERWIN v. UNITED STATES 15
surely can. Given the undisputed facts here, we can only con-
clude that the Government demonstrated Erwin’s responsible
person status as a matter of law.

We note that other courts have reached precisely the same
conclusion in considering similar facts. See, e.g., Jefferson v.
United States, 546 F.3d 477, 481 (7th Cir. 2008) (holding
board president responsible person as a matter of law because
he secured loans and directed past payment of taxes for the
corporation, reviewed financial reports, and had check-
signing authority); Thosteson v. United States, 331 F.3d 1294,
1299-1300 (llth Cir. 2003) (holding corporate officer and
stockholder a responsible person as a matter of law even
though he had "limited check writing authority, up to only
$750, without a countersignature"); Taylor v. IRS, 69 F.3d
411, 417 (10th Cir. 1995) (holding corporate director and offi-
cer a responsible person as a matter of law because he "pos-
sessed sufficient control over corporate finances, had
authority to borrow funds and write checks and thereby had
the ‘effective power’ to pay the taxes" (quoting Barnett, 988
F.2d at 1454)); Greenberg v. United States, 46 F.3d 239, 243-

Rather, the dissent heavily relies on Vinick, a First Circuit case that
Erwin never cites. Given that Vinick’s corporate involvement primarily
occurred outside of the tax periods in question and decreased significantly
during the relevant periods, when his partner unilaterally took control of
the company’s day-to-day financial management, the First Circuit held
Vinick was not a responsible person. In contrast, the undisputed facts here
demonstrate Erwin was actively involved in GCAD’s financial affairs and
general management decision making throughout the corporation’s entire
existence. Notably, unlike Vinick, Erwin directed or negotiated payments
to corporate creditors to reduce debts he had personally guaranteed. That
Erwin ultimately took complete control of the corporation’s finances after
the tax periods in question does exactly what Vinick acknowledged such
evidence could do, i.e. "cast light on [his] status as a responsible person"
during those tax periods, 205 F.3d at 11 n.8, because it demonstrates his
authority, at all times, to dictate financial decision making. Erwin even
admitted at deposition that had he learned of the tax deficiencies earlier,
he would have taken remedial action at that time.
16 ERWIN v. UNITED STATES
44 (3d Cir. 1994) (holding in-house controller a responsible
person as a matter of law even though he took instructions
from the controlling stockholder and "feared for his job were
he to independently issue a check for the [tax] delinquency");
Kinnie, 994 F.2d at 284 (holding corporate vice president and
fifty-percent shareholder a responsible person as a matter of
law because he had check-signing authority, hired an accoun-
tant to review the books, and eventually took control of the
business); Mazo v. United States, 591 F.2d 1151, 1156 (5th
Cir. 1979) (holding corporate stockholders, officers, and
directors responsible persons as a matter of law even though
others handled all day-to-day operations and prepared all cor-
porate checks).

Erwin’s contention that others in the company may have
been just as, or even more, responsible for GCAD’s failure to
remit payroll taxes during the tax periods in issue does not
free him from § 6672 liability. For § 6672 imposes liability on
"all responsible persons, not just . . . the most responsible per-
son." Turnbull, 929 F.2d at 178. Erwin’s own admissions con-
clusively demonstrate that he was a responsible person for
§ 6672 purposes during the relevant tax periods.

To summarize, Erwin admitted that at all times he owned
at least one third of the stock of this closely-held corporation
and served as its secretary, treasurer, vice president, and
director. Erwin admitted that he signed loan documents and
leases on behalf of the corporation, thus evidencing that he
shared responsibility for establishing the corporation’s finan-
cial policy. Erwin admitted that he approved restaurant site
selection and regularly reviewed sales data. Erwin admitted
holding quarterly meetings with his partners and weekly tele-
phone calls with the general manager to discuss the restau-
rants. Erwin admitted that he directed or negotiated payments
to certain favored creditors to reduce GCAD debt, which he
had personally guaranteed. Erwin admitted that he hired and
fired upper-management employees, including GCAD’s
accountants. Finally, although Erwin delegated many of the
 ERWIN v. UNITED STATES 17
day-to-day financial responsibilities of the corporation to oth-
ers, he admitted that he infused capital into GCAD and
admonished the Light brothers, over whom he had significant
control, to stay current with the company’s tax obligations.7

In short, the undisputed facts—indeed Erwin’s own
admissions—demonstrate, as a matter of law, that Erwin was
a responsible person under § 6672 during the relevant tax
periods.

IV.

Having found Erwin a "responsible person," we turn to
whether he "willfully" failed to collect, account for, or remit
payroll taxes to the United States. Plett, 185 F.3d at 219. This
inquiry focuses on whether Erwin had "knowledge of nonpay-
ment or reckless disregard of whether the payments were
being made." Id. (quoting Turpin v. United States, 970 F.2d
1344, 1347 (4th Cir. 1992)). A responsible person’s inten-
tional preference for creditors other than the United States
establishes willfulness as a matter of law; such an intentional
preference occurs when the responsible person knows of or
7
Despite making these and other admissions in deposition, Erwin main-
tains that we must accept as true his contradictory averments in a later-
filed affidavit, in which he claims in conclusory fashion that during the tax
periods at issue he had no role in managing GCAD or any control over its
financial affairs. Reply Br. at 2. The dissent also appears to embrace this
view, relying on Erwin’s later "sworn statement" as creating an asserted
factual dispute with Erwin’s prior sworn deposition testimony. Such reli-
ance is misplaced; "[i]t is well established that ‘[a] genuine issue of fact
is not created where the only issue of fact is to determine which of the two
conflicting versions of [a party’s] testimony is correct.’" Halperin v. Aba-
cus Tech. Corp., 128 F.3d 191, 198 (4th Cir. 1997) (quoting Barwick v.
Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984)); accord Waste Mgmt.
Holdings, Inc. v. Gilmore, 252 F.3d 316, 341 (4th Cir. 2001); S.P. v. City
of Takoma Park, Md., 134 F.3d 260, 273 n.12 (4th Cir. 1998) (noting that
a party’s "later denial" of earlier "statements does not create a genuine
issue of a material fact").
18 ERWIN v. UNITED STATES
recklessly disregards an unpaid deficiency. Id.; Turpin, 970
F.2d at 1347.

By the end of 1998, Erwin knew that GCAD had financial
difficulties. Indeed, in December 1998 Erwin made a special
capital contribution to pay a tax delinquency from a prior
quarter. At that time, Erwin also admonished the Light broth-
ers to make timely payments in the future, but he did not
monitor the situation personally to ensure future payment, nor
did he advise the Light brothers to implement additional inter-
nal controls.

Although Erwin’s lack of oversight in all likelihood con-
tributed to the Light brothers’ failure to remit payroll taxes for
the fourth quarter of 1998 and the first three quarters of 1999,
the record, viewed in the light most favorable to Erwin, does
not support a finding—as a matter of law — that prior to
August 1999 Erwin had actual knowledge that the Light
brothers continually failed to pay GCAD’s payroll taxes.
Thus, whether Erwin acted willfully during this time, as a
matter of law, depends on whether he acted with "reckless
disregard" of GCAD’s tax obligations. See Turpin, 970 F.2d
at 1347.

Erwin claims that he thought that the Light brothers would
obey his instruction to stay current with GCAD’s tax obliga-
tions, that Coggin was monitoring the Light brothers, and that
the Light brothers were professionals with experience
accounting for Golden Corral restaurants in the past. Argu-
ably, a fact finder fully crediting this testimony might con-
clude that Erwin’s actions, although negligent, did not rise to
the level of recklessness. See id. at 1347 n.4 ("Mere negli-
gence in failing to ascertain facts regarding a tax delinquency
. . . is insufficient to constitute willfulness under [§] 6672(a)."
(internal quotation marks omitted)).

Even assuming, however, that Erwin did not act willfully
prior to learning of the full extent of the tax deficiencies in
 ERWIN v. UNITED STATES 19
August 1999, his conduct after that point unquestionably evi-
dences willfulness as a matter of law. During the third quarter
of 1999, GCAD paid just a fraction of its payroll tax liability.
Although Erwin and Coggin each made capital contributions
to cover the deficiency in December 1999, GCAD still owed
over $100,000 for that quarter alone and had not satisfied
deficiencies from 1998 and the first two quarters of 1999. The
record does not conclusively reveal the extent of Erwin’s
actual knowledge at this point in time, but certainly demon-
strates that by that time he was on notice that GCAD owed
substantial payroll taxes to the IRS. Yet Erwin and his part-
ners continued to rely on the Light brothers to address the
problem for several more months. Erwin’s failure to assess
and remedy the payroll tax deficiencies immediately upon
learning of their existence in August 1999 constitutes unrea-
sonable willful conduct. Cf. id. at 1350 (noting the relevance
of responsible person’s immediate action to address deficien-
cies upon learning of them). This is particularly so given that,
at Erwin’s direction, GCAD paid other creditors during this
period. Thus, Erwin is liable for any outstanding third-quarter
1999 deficiencies. See Plett, 185 F.3d at 219.

Moreover, following the lead of every other circuit to con-
sider the question, we adopt the rule that when a responsible
person learns that withholding taxes have gone unpaid in past
quarters for which he was responsible, he has a duty to use all
current and future unencumbered funds available to the corpo-
ration to pay those back taxes. See, e.g., Thosteson, 331 F.3d
at 1300-01; United States v. Kim, 111 F.3d 1351, 1357 (7th
Cir. 1997); Honey v. United States, 963 F.2d 1083, 1089 (8th
Cir. 1992); Mazo, 591 F.2d at 1157. Pursuant to this rule, as
of August 1999, Erwin had a duty to use all unencumbered
funds to reduce GCAD’s tax liability from the prior quarters.

The record demonstrates that GCAD generated several mil-
lion dollars in gross receipts after August 1999 and paid rent
and food vendors with those funds instead of paying the IRS.
(Erwin does not contend that any creditor held a security
20 ERWIN v. UNITED STATES
interest in these funds superior to the IRS’s interest. See
Honey, 963 F.2d at 1090.) Accordingly, we hold that, by pre-
ferring GCAD’s other creditors to the IRS, Erwin willfully
failed to remit GCAD’s payroll taxes for the fourth quarter of
1998 and the first three quarters of 1999.8

V.

For the reasons set forth above, the judgment of the district
court is

AFFIRMED.

HAMILTON, Senior Circuit Judge, dissenting:

Because I believe a reasonable fact-finder, viewing the evi-
dence in the light most favorable to Erwin and drawing all
reasonable inferences from such evidence in his favor, could
find that he was not a responsible person under 26 U.S.C.
§ 6672, I would vacate the judgment in favor of the Govern-
ment and remand for trial. Accordingly, I respectfully dissent.
8
Erwin raises a putative "reasonable cause" defense, arguing that GCAD
had to use gross receipts to pay rent and vendors in order to stay opera-
tional. Courts that have recognized this defense have limited it to situa-
tions in which circumstances outside a taxpayer’s control have thwarted
his reasonable efforts to protect trust funds, and have not applied it in situ-
ations where the taxpayer made a conscious decision to pay other credi-
tors. See, e.g., Thosteson, 331 F.3d at 1301 (citing Logal v. United States,
195 F.3d 229, 233 (5th Cir. 1999); see also Greenberg, 46 F.3d at 244 ("It
is no defense that the corporation was in financial distress and that funds
were spent to keep the corporation in business with an expectation that
sufficient revenue would later become available to pay the United
States."). Thus, even were we to conclude that a "reasonable cause"
defense to § 6672 liability exists, such a defense would not protect Erwin
under these facts.
 ERWIN v. UNITED STATES 21
I.

We review the district court’s grant of summary judgment
de novo. Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281,
286 (4th Cir. 2004). A motion for summary judgment should
be granted "if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no gen-
uine issue as to any material fact and that the movant is enti-
tled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2).
In determining whether a genuine issue of material fact exists
in this case, precluding the entry of summary judgment in
favor of the Government, we must view the evidence in the
light most favorable to Erwin and draw all reasonable infer-
ences from such evidence in his favor. Edell & Assocs., P.C.
v. Law Offices of Peter G. Angelos, 264 F.3d 424, 429, 435-
36 (4th Cir. 2001). We may not make credibility determina-
tions or weigh the evidence. Id. at 435. And although we
should review the record as a whole, we must disregard any
evidence favorable to the Government as the moving party
that a jury would not be required to believe. Id. at 436. See
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 151 (2000). "That is, [we] should give credence to the
evidence favoring the nonmovant as well as that evidence
supporting the moving party that is uncontradicted and unim-
peached, at least to the extent that the evidence comes from
disinterested witnesses." Reeves, 530 U.S. at 151 (internal
quotation marks omitted).

II.

Mindful that in determining § 6672 liability, "the ‘crucial
inquiry is whether the person had the "effective power" to pay
the taxes—that is, whether he had the actual authority or abil-
ity, in view of his status within the corporation, to pay the
taxes owed,’" Plett v. United States, 185 F.3d 216, 219 (4th
Cir. 1999), I will focus on the application of the Plett factors
to the record evidence as we must view such evidence at the
summary judgment stage.
22 ERWIN v. UNITED STATES
I agree with the majority opinion that the first Plett factor,
which asks whether the party upon whom the Government
seeks to impose responsible person liability under § 6672
served as an officer or director of the company, cuts in favor
of the Government. During the four quarters at issue, Erwin
served as vice-president, secretary, and treasurer of GCAD,
and served on its board of directors.

However, contrary to the majority opinion, I conclude that
the second Plett factor, which asks whether Erwin controlled
the company’s payroll, cuts in favor of Erwin. The evidence
shows that Erwin did not control GCAD’s payroll during the
four tax quarters at issue. First, the record contains a sworn
statement by Erwin that he had no control over GCAD’s pay-
roll. Second, there is no evidence that Erwin personally over-
saw GCAD’s payroll. Third, the undisputed evidence shows
that for all four quarters at issue, a professional accounting
and tax service was in charge of GCAD’s payroll, including
collecting withholdings and paying such withholdings to the
Government.1 And although Erwin did participate in the deci-
sion to hire such professional accounting and tax service, this
circumstance is a far cry from controlling GCAD’s payroll
functions.

Moreover, the fact that Erwin and the other shareholders
infused capital into GCAD with instructions that the Light
Brothers catch up the back withholding taxes, merely estab-
lishes that Erwin and the other shareholders did not want to
see their investment in GCAD go down the drain because the
corporation was not current in paying its federal withholding
taxes. Accordingly, such infusions and instructions, which
Erwin admitted during his deposition, are not inconsistent
with Erwin’s later sworn statement that he had no control over
GCAD’s payroll. Similarly, Erwin’s seizure of control over
GCAD’s payroll functions after the tax periods at issue and
1
Indeed, even the majority recognizes that "Erwin and his two partners
did not directly manage GCAD’s payroll." Ante at 11.
 ERWIN v. UNITED STATES 23
after he learned of the payroll withholding delinquencies for
those periods reasonably suggests that Erwin decided to
become the responsible person under § 6672 from then for-
ward in order to protect his substantial investment. Contrary
to the majority opinion, such conduct does not require an
inference that Erwin was a responsible person under § 6672
for the tax periods in question.

Moving on to the third Plett factor, such factor cuts in favor
of Erwin. Specifically, a reasonable jury could find that Erwin
had limited decision-making authority about which creditors
to prefer. For the most part, any creditor preferences made by
Erwin during the tax periods at issue were made with infu-
sions of investor capital. The record also contains the sworn
statement of Erwin that, prior to October 1999, he had lim-
ited, to no decision-making ability, about which creditors of
GCAD to prefer.

When the evidence is viewed through the proper summary
judgment lens, the fourth Plett factor also cuts in favor of
Erwin. Specifically, the record shows that he did not partici-
pate in the day-to-day operations of GCAD. First, the record
contains the sworn statement of Erwin that, prior to October
1999, he had no responsibility for the day-to-day management
of GCAD.2 Moreover, the evidence in the record supports the
reasonable inference that, during the four quarters at issue,
with the exception of all aspects of accounting and payroll,
Pintner was solely responsible for the day-to-day operations
of GCAD. Indeed, "Pintner came to GCAD upon the recom-
mendation of various corporate officers of Golden Corral who
presented him as a seasoned operator of the Golden Corral
2
As the record evidence must be viewed at the summary judgment
stage, Erwin gave no deposition testimony that is inconsistent with his
later sworn statement that he had "no responsibility for the day-to-day
management of" GCAD. (J.A. 1081). Accordingly, reliance on such state-
ment in the mix of evidence carrying Erwin’s burden in successfully
opposing the Government’s summary judgment motion is not misplaced
as suggested by the majority. Ante at 17 n.7.
24 ERWIN v. UNITED STATES
concept." (J.A. 1077). The evidence supports the reasonable
inference that, during the four quarters at issue, the Light
Brothers were solely responsible for all aspects of accounting
and payroll, including financial reporting to Pintner and, by
extension, the GCAD shareholders. While Erwin’s activities
on behalf of GCAD, for example, the negotiation of leases
and the choosing of site locations for the restaurants, show
that he was more than a passive investor, they do not establish
that he participated in the day-to-day operations of GCAD.
Moreover, the fact that Erwin reviewed GCAD’s sales figures
on a weekly basis can support the reasonable inference that he
did so to monitor the status of his investment. It does not
require the inference, as the majority suggests, that Erwin par-
ticipated in GCAD’s day-to-day management.3

The fifth Plett factor, which asks whether Erwin had check
writing authority, also favors Erwin.4 The evidence is undis-
puted that Erwin did not possess the power to sign checks
during the four quarters at issue, nor was he a signatory on
any of GCAD’s bank accounts during such quarters. The
focus of this factor is whether the individual at issue possesses
check-writing authority, because the lack of such authority
suggests that he is not a responsible person under § 6672.

Finally, the sixth Plett factor, which asks whether Erwin
had the ability to hire and fire employees cuts both ways.5 On
3
I note that the majority opinion mentions that Pintner testified in depo-
sition that he spoke to Erwin daily regarding sales figures and the perfor-
mance of individual stores. See ante at 4 n.2. Because this testimony is
inconsistent with Erwin’s testimony that he only spoke with Pintner about
such matters on a weekly basis, Pintner’s version cannot be considered in
assessing the propriety of the Government’s summary judgment motion.
Edell & Assocs., P.C., 264 F.3d at 429.
4
For purposes of clarity, I note that Plett itself lists check-writing
authority as the fifth of six factors serving as indicia of the requisite
authority to pay a company’s payroll taxes, while the majority opinion in
the present cases lists it as the sixth factor.
5
The majority opinion lists this as the fifth Plett factor.
 ERWIN v. UNITED STATES 25
the one hand, the undisputed evidence shows that Erwin sub-
stantially participated in the hiring and firing decisions with
respect to GCAD’s top management, including hiring the
Light Brothers. On the other hand, the evidence shows that
Erwin did not participate at all in routine personnel decisions.

Examining the Plett factors in toto, in my considered opin-
ion, Erwin has proffered sufficient evidence to stave off the
Government’s motion for summary judgment. More specifi-
cally, when the evidence in this case is viewed in the light
most favorable to Erwin, and all reasonable inferences are
drawn in his favor, a reasonable fact finder could find, under
the totality of the circumstances, that Erwin was not a respon-
sible person with respect to GCAD’s withholding taxes for
the last quarter of 1998 and the first three quarters of
1999—i.e., Erwin did not have the effective power to pay
those taxes during those quarters.

My view is substantially supported by the First Circuit’s
decision in Vinick v. United States (Vinick II), 205 F.3d 1, 9
(1st Cir. 2000), which is not cited by either party. In Vinick
II, the Government assessed a nearly $50,000 penalty against
Arnold Vinick (Vinick) pursuant to § 6672. Id. at 5. The
assessment alleged failed withholding payments for the last
three quarters of 1989 and the first two quarters of 1990 with
respect to Jefferson Bronze, Inc. (Jefferson Bronze). Id.

Vinick paid a small portion of the penalty and filed a claim
for a refund. Id. at 6. After the Government denied the claim,
Vinick sued for a refund. Id. The Government counterclaimed
for the balance due and moved for summary judgment. Id. at
6. The district court granted summary judgment for the Gov-
ernment, and Vinick appealed. Id. The First Circuit reversed
and remanded for further proceedings. Vinick v. Comm’r of
IRS (Vinick I), 110 F.3d 168 (1st Cir. 1997). Following a
bench trial, the district court again ruled in favor of the Gov-
ernment by finding Vinick to be a responsible person. Vinick
II, 205 F.3d at 6. The First Circuit reversed again, holding that
26 ERWIN v. UNITED STATES
Vinick was not a responsible person under § 6672 as a matter
of law. Vinick II, 205 F.3d at 15.

Vinick was a CPA in private practice and a former IRS
employee. Id. at 4. In 1981, he and two other persons (Letter-
man and Mayer) formed Jefferson Bronze for the purpose of
operating a foundry. Id. The three men, who each owned one-
third of Jefferson Bronze’s stock, personally guaranteed the
Small Business Administration loan used to start-up the busi-
ness and pledged their homes as collateral. Id. Letterman
became president, Vinick became treasurer, and Mayer
became the day-to-day manager of the foundry. Id. Soon after
its formation, Jefferson Bronze began a long period of finan-
cial difficulties. Id.

The remaining relevant facts are as follows: (1) throughout
the history of Vinick’s involvement in the corporation, he
never gave up his accounting practice and never had an office
at Jefferson Bronze; (2) although Vinick had check-writing
authority on Jefferson Bronze’s checking accounts, he never
signed checks prior to the company’s filing for Chapter 11
bankruptcy; (3) Vinick prepared Jefferson Bronze’s quarterly
employment tax returns; (4) in 1983, Letterman fired Mayer,
Letterman and Vinick acquired Mayer’s share of the corpora-
tion, and each became a half owner of Jefferson Bronze; (5)
Vinick hired Ronald Ouellette (Ouellette) as the new man-
ager; (6) Ouellette ran the office and the foundry, and his wife
worked part-time as the bookkeeper and signed the company
checks and payroll returns; (7) Vinick occasionally would
visit the Ouellette home to collect information needed to com-
plete the quarterly returns, and after their preparation, Vinick
would return the completed, unsigned forms to the Ouellette
home; (8) usually once a month, Vinick would discuss with
Ouellette the financial condition of the corporation and would
stress to him the need to pay the taxes; (9) during Ouellette’s
tenure as manager, Jefferson Bronze’s financial troubles con-
tinued, with Jefferson Bronze failing to timely pay the with-
holding taxes due; (10) regardless, Jefferson Bronze always
 ERWIN v. UNITED STATES 27
filed its tax returns on time; (11) at some point, Letterman and
Vinick obtained a $35,000 loan for Jefferson Bronze, which
they secured with personal guarantees; (12) in 1985, Vinick
negotiated with an Internal Revenue Service revenue officer
a payment plan for the taxes Jefferson Bronze owed, and
relayed the terms of the plan to Ouellette, who complied with
the plan’s requirements; (13) after Jefferson Bronze com-
pleted payment of these taxes, it experienced no further tax
delinquency until Letterman took over as manager; (14) in
January 1988, Letterman decided on his own to take over as
the day-to-day financial manager of the corporation (Ouelette
continued as the foundry manager for non-financial matters);
(15) Letterman’s wife then took over as office manager and
bookkeeper; (16) during this time, Vinick continued to collect
the financial information, to prepare the quarterly tax returns,
and to leave them for Letterman to sign; (17) while he also
continued to advise Letterman to pay the corporation’s taxes,
Vinick became less involved in the financial affairs of the cor-
poration as Letterman’s role increased; (18) in May 1988,
Letterman and Vinick successfully negotiated a refinancing of
Jefferson Bronze’s Small Business Administration loan with
a private bank, including signing the note in their individual
and corporate capacities; (19) additionally, Vinick pledged his
home as collateral on the refinancing; (20) around March
1989, Jefferson Bronze became delinquent on such note,
prompting Letterman and Vinick to discuss the financial
future of Jefferson Bronze with the bank’s vice president; (21)
from April 1989 to June 1990, during Letterman’s tenure as
manager and prior to Vinick’s ever having signed a company
check, Jefferson Bronze again fell behind in its withholding
tax obligations; (22) by July 1990, Jefferson Bronze had filed
for Chapter 11 bankruptcy; and (23) a year later the bank
foreclosed on the note, with Jefferson Bronze finally closing
its doors shortly thereafter.

After applying virtually the same factors as we outlined in
Plett to the facts just set forth, the First Circuit held that "Vin-
ick as a matter of law was not a responsible person within the
28 ERWIN v. UNITED STATES
meaning of 26 U.S.C. § 6672(a)." Vinick, 205 F.3d at 15. Sig-
nificant to the First Circuit’s holding, were the following
facts: (1) at no time did Vinick exercise any decision-making
authority over which creditors Jefferson Bronze paid; (2) dur-
ing the quarters in question, Vinick had no involvement in the
day-to-day operations of Jefferson Bronze; (3) during the
quarters in question, although Vinick had check-signing
authority, he signed no checks and lacked access to the check-
book; and (4) although Vinick participated in the decision to
hire the general manager, he was not involved in the routine
hiring and firing of employees. In sum, the First Circuit con-
cluded that while Vinick "may have been more than a mere
passive investor in the corporation," the evidence did not
establish that he "possessed actual, exercised authority over
the company’s financial matters, including the duty and
power to determine which creditors to pay," and therefore, "as
a matter of law he cannot be a responsible person." Id. at 14-
15.

While I do not suggest here that, under the facts of the pres-
ent case, Erwin, as a matter of law, cannot be a responsible
person under § 6672, I do believe that, based on the evidence
in this case, a reasonable jury could find that that he is not a
responsible person under § 6672. The facts in Vinick are sub-
stantially similar to the facts in the present case. Like Vinick,
Erwin was a one-third shareholder in the corporation and per-
sonally guaranteed loans for the corporation. Like Vinick,
Erwin held the title of the corporation’s treasurer. Like Vin-
ick, Erwin received financial information about the corpora-
tion from the general manager and stressed the need to keep
payroll taxes current to the person responsible for actually
paying such taxes. Like Vinick, Erwin participated in the hir-
ing and firing decisions with respect to top management, but
did not with respect to routine personnel decisions. Like Vin-
ick, Erwin took actions to catch up back withholding taxes
from time periods different from the ones in question (i.e.,
Vinick negotiated a payment plan with the Internal Revenue
Service, while Erwin contributed capital with an order to use
 ERWIN v. UNITED STATES 29
the money to catch up the back withholding taxes). Finally,
like Vinick, Erwin did not participate in the day-to-day opera-
tions of the corporation.

In sum, I recognize that this is a close case. However, for
the reasons just set forth, I believe the scale tips in favor of
Erwin at the summary judgment stage.

III.

In conclusion, I would hold the district court erred in hold-
ing that the responsible person inquiry cuts in favor of the
Government on summary judgment. Accordingly, I would not
reach the willfulness element and would vacate the judgment
in favor of the Government and remand for trial.