410 F. App'x 288

Joseph P. D’ANGELO, individually, Plaintiff-Appellant, *289Daycon Investors Associates, Inc., Plaintiff, v. USA, Defendant-Appellee.

No. 10-11162.

United States Court of Appeals, Eleventh Circuit.

Jan. 24, 2011.

Joseph Perea, Attorney at Law, Miami, FL, Reea Rene Chamberlain, Gotha, FL, for Plaintiff-Appellant.

Carol Koehler Ide, Mara A. Strier, United States Department of Justice, Jennifer M. Rubin, Washington, DC, Steven D. Grimberg, U.S. Attorney’s Office, Atlanta, GA, for Defendant-Appellee.

Before BARKETT and MARCUS, Circuit Judges, and RESTANI,* Judge.

PER CURIAM:

Joseph P. D’Angelo appeals the district court’s grant of summary judgment to the United States on D’Angelo’s claim that the government wrongfully assessed taxes and penalties against him under 26 U.S.C. § 6672.1 The Internal Revenue Service (“IRS”) assessed tax penalties against D’Angelo for the unpaid trust fund taxes2 *290of two companies — Americare Pulmo-Tech, Inc. (“Pulmo-Tech”) and its parent, Americare Services (“Services”) (together, “the Companies”). To successfully challenge his liability under § 6672, D’Angelo must show either that he was not responsible for the Companies’ tax payments, or that his non-payment was not willful. See Malloy v. United States, 17 F.3d 329, 331 (11th Cir.1994). D’Angelo conceded his status as a responsible person at oral argument, but he claims that disputed issues of material fact prevent a finding of willfulness without a trial.3

A taxpayer’s non-payment of withheld taxes is willful if he “either had actual knowledge that the taxes were not being paid or acted with a reckless disregard of a known or obvious risk of nonpayment.” Malloy, 17 F.3d at 332. The district court found that D’Angelo had actual knowledge of the unpaid taxes; D’Angelo claims that the court improperly relied on credibility assessments. However, we need not reach the issue of actual knowledge because the uncontested evidence supports the conclusion that D’Angelo recklessly disregarded an obvious risk that the companies would not pay the withheld taxes.4

D’Angelo “is liable ‘if he (1) clearly ought to have known that (2) there was a grave risk that withholding taxes were not being paid and if (3) he was in a position to find out for certain very easily.’ ” Malloy, 17 F.3d at 332 n. 12 (11th Cir.1994) (quoting Wright v. United States, 809 F.2d 425, 427 (7th Cir.1987)). D’Angelo’s actions meet this standard. He created Pulmo-Tech as a subsidiary of Services5 to take over a struggling company managed by his friend, Barbara Born. D’Angelo was a founder, director, and president or CEO of the Companies, and his was the only name on their bank accounts. Despite Born’s failings at the predecessor company, he retained her as Pulmo-Tech’s manager, and Pulmo-Tech soon began losing money. By the time he decided to shut down Pul-mo-Tech’s offices, he knew that it was insolvent and that Born had failed to pay taxes at her former company. D’Angelo examined Pulmo-Tech’s finances in detail sufficient to decide to close the company. At this time, the risk of non-payment of the withholding taxes was obvious, and if he did not actually know, he could easily have discovered the truth. Cf. Malloy, 17 F.3d at 332 (finding notice of an obvious risk based on failure to investigate despite knowledge of company’s financial difficulties and non-payment of withholding taxes by predecessor company run by the same managers). Further, after receiving a notice from the IRS a year later, he simply gave it to his attorney and still did not inquire into the Companies’ tax payments. The record demonstrates that, at a mini*291mum, D’Angelo recklessly disregarded an obvious risk that the Companies would not pay the taxes due.

Accordingly, we reject D’Angelo’s claim that the district court erred in finding his non-payment willful, and we AFFIRM the district court’s grant of summary judgement in favor of the government.

D’Angelo v. USA
410 F. App'x 288

Case Details

Name
D’Angelo v. USA
Decision Date
Jan 24, 2011
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410 F. App'x 288

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United States

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