Escobedo v. BHM Health Associates, Inc.

BOEHM, J.,

concurring.

I concur in the majority's holding that facts sufficient to pierce the corporate veil are not established. The Court of Appeals reversed the trial court on the basis that it would be inequitable to permit the corporate officers to escape liability for discharging a liability they had guaranteed as individuals, if it had the effect of diverting limited assets otherwise available for other creditors, including the plaintiffs. I agree that the facts as found by the trial court would support such a theory of recovery *936except for one point. The debt discharged was to the Internal Revenue Service for past payroll taxes. If the nature of that obligation rendered the IRS a preferred creditor vis-a-vis claims for wages for the period immediately preceding collapse of the corporation, the plaintiffs here suffered no loss by the payment of the debt to the IRS. Perhaps this was the reason no theory of self dealing by corporate officers or directors, breach of fiduciary duty, fraudulent transfer or fraud on creditors was advanced. In any event, the facts are sufficiently murky that I concur in affirming the trial court.