IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20536
_____________________
JOHN H. SPEER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(H-97-CV-3425)
_________________________________________________________________
April 12, 2000
Before JOLLY and DENNIS, Circuit Judges, and DAVID D. DOWD,*
District Judge.
PER CURIAM:**
This appeal comes to us following the district court’s grant
of summary judgment for the appellee, the government, holding that
the appellant, John Speer, was liable under 26 U.S.C. § 6672 for
willfully failing to pay withholding taxes of corporate employees
as they became due despite the availability of unencumbered funds.
After examining the briefs and the record in this case, it is
clear that a genuine issue of material fact exists regarding when
*
District Judge of the Northern District of Ohio, sitting by
designation.
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
and to what extent unencumbered funds were available to Speer to
pay the tax liability of Kenton Homes, Inc. Consequently, Speer
is entitled to an evidentiary hearing at which time he will be
allowed to more fully develop the record in an attempt to show
that, at least with respect to some of the tax liability, there was
no willful refusal to pay the government--either because he had no
unencumbered funds at his disposal, or because he acted reasonably
within the meaning of our cases. See Barnett v. Internal Revenue
Service, 988 F.2d 1449 (5th Cir. 1993); Turnbull v. United States,
929 F.2d 17 (5th Cir. 1991).
The judgment of the district court is REVERSED, and the case
is REMANDED to the district court for further disposition not
inconsistent with this opinion.
REVERSED and REMANDED.
2