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July 25, 2014

Changing Tides or Stagnant Waters: Personal Liability for Trustees in Bankruptcy in the Aftermath of In re Texas Pig Stands, Inc.

Introduction

The Bankruptcy Code provides a trustee in bankruptcy (“trustee”) with numerous duties, which make serving as a trustee a daunting task. Not only is a trustee expected to know the ins and outs of the Bankruptcy Code, but a trustee is also expected to become familiar with any state laws that may impact the management of property in the trustee’s possession[1]as well as with all applicable federal, state, and local tax laws.[2]The Fifth Circuit’s recent holding in Texas Comptroller of Public Accounts v. Liuzza (In re Texas Pig Stands, Inc.) (“Texas Pig Stands”)[3]suggests that a trustee who does not become acquainted with these laws may incur harsh penalties upon violation.

In Texas Pig Stands, the Fifth Circuit held that a first-time chapter 11 trustee was personally liable for over $100,000 worth[4]of state sales tax he failed to remit pursuant to Texas Tax Code (“Texas Code”) section 111.016.[5]The Fifth Circuit noted that it was “an unusual, if not wholly unprecedented occurrence,” for a taxing authority to sue a trustee using a personal liability theory,[6]but ultimately concluded that section 111.016 permits personal liability lawsuits to be brought against trustees who “willfully” mismanage property in their possession.[7]By reaching this conclusion, the Fifth Circuit sanctioned the Texas taxing authority’s use of section 111.016 to collect from the personal funds of trustees for acts of willful mismanagement.

The Fifth Circuit’s decision to sanction the use of section 111.016 against trustees is not only an important development for trustee liability law in Texas, but is an important development for trustee liability law in the United States as a whole. Section 111.016 of the Texas Code is modeled after section 6672 of the Internal Revenue Code (“IRC”),[8]which can be used to sue individuals serving as trustees in all fifty states. Furthermore, forty-nine of the fifty states have sections in their state tax codes that are substantially similar to section 6672; the majority of these states have modeled their statutes either directly or indirectly on section 6672.[9]Thus, the Texas Pig Stands holding may serve as precedent for taxing authorities to bring personal liability lawsuits against trustees using federal and state tax statutes across the country.

 Part I of this article explains the Fifth Circuit’s analysis of section 111.016 and holding in Texas Pig Stands. Part II proposes that the atypical facts of the Texas Pig Stands case bolster the Fifth Circuit’s holding. Part III discusses prior cases involving personal liability for willful actions that laid the foundation for the Texas Pig Stands holding.  Part IV explores the potential impact of the Texas Pig Stands holding on bankruptcy cases across the country. This article concludes that the Texas Pig Stands holding establishes a precedent for federal and state taxing authorities to initiate personal liability actions against trustees, but that the holding is unlikely to greatly increase the number of cases in which trustees are held personally liable for willful action.

I.  Texas Pig Stands, Analysis and Holding

In April 2005, Texas Pig Stands, Inc., a San Antonio, Texas based restaurant company, filed for chapter 11.[10]Initially, the debtor-in-possession (“DIP”) managed the estate; however, due to the DIP’s failure to remit federal and state taxes on time, a trustee was appointed to manage in March 2006.[11]Like the DIP, the trustee also had problems making timely tax payments.[12]The trustee’s failure to pay state sales tax resulted in the Texas Comptroller filing the Texas Pig Stands adversary proceeding in March 2007.[13]The question presented to the Fifth Circuit in this case on appeal was whether the trustee was personally liable for his failure to remit state sales tax pursuant to section 111.016 of the Texas Code.[14]The Fifth Circuit held that the trustee was personally liable for over $100,000 worth of state sales tax he failed to remit.[15]

Section 111.016 of the Texas Code provides that state sales tax is a “trust fund” tax in Texas.[16]A trust fund tax is a tax that the government imposes on either the customers or the employees of a business.[17]Rather than have the customers or the employees of the business pay the government directly, the business[18]collects the tax on the government’s behalf. Since the business is merely serving as a collection agent who holds the tax in trust for the government,[19]the business never takes an equitable interest in the tax.[20]Instead, the business takes a legal interest in the tax during the time period that the business holds the tax in trust.[21]

In addition to classifying state sales tax as a trust fund tax, section 111.016 provides that the Texas taxing authority may impose personal liability on an individual who collects or pays state sales tax for a business on the Texas government’s behalf if two conditions are satisfied. First, the individual must “control[] or supervise[]” either tax collection or tax payment.[22]Second, the individual must “willfully” fail to pay the tax or “willfully” prevent the tax from being paid.[23]In Texas Pig Stands, the Fifth Circuit concluded that the first condition of section 111.016 was satisfied because the trustee was a “controlling party”; the court did not offer any further explanation for this conclusion.[24]

The Fifth Circuit also concluded that the second condition was satisfied because the trustee “willfully” failed to pay the state sales tax.[25]The trustee’s failure to pay the tax was not in dispute, so the Fifth Circuit’s conclusion turned on the meaning of the term “willfully” as used in section 111.016.[26]The Fifth Circuit adopted the definition of “willfully” proposed by the Texas Court of Appeals in State v. Crawford (“Crawford”),[27]another case involving section 111.016.[28]The Crawford court stated that “willfully” as used in this section meant “voluntar[ily], conscious[ly], and intentional[ly].”[29]The Crawford court also held that one acted willfully when one had “knowledge that taxes were due . . . and yet paid other creditors.”[30]Since the trustee in Texas Pig Stands “admit[ted] that he knew that the sales taxes were due and used the money to pay other creditors,” the suppliers, and the staff, the Fifth Circuit concluded that the trustee willfully failed to pay.[31]

Although the Fifth Circuit could have ended its analysis with Crawford, the court did not. Instead, the Fifth Circuit discussed 28 U.S.C. §§ 959–60,[32]the United States Trustee Manual,[33]and the United States Trustee’s Chapter 11 Trustee Handbook[34]and noted that, even if the trustee had been unaware of section 111.016, all of these sources provided the trustee with notice that he could be held personally liable for his noncompliance with state tax laws.[35]The Fifth Circuit did note that although the trustee failed to heed the warnings of these documents, he was not motivated by, nor did he reap, personal pecuniary gain. Although sympathetic to the trustee’s plight, the Fifth Circuit indicated that the motivation behind a trustee’s actions, whether good or bad, was irrelevant to section 111.016 analysis.[36]

II.  The Atypical Facts of the Texas Pig Stands Case Contributed to the Court’s Holding

The Fifth Circuit’s decision to hold the trustee liable for willful action pursuant to section 111.016 of the Texas Code is bolstered by the atypical facts of the Texas Pig Stands case, which clearly establish that the trustee acted willfully. The facts on the record establish that tax issues pervaded Texas Pig Stands, Inc.’s bankruptcy proceeding from the very beginning.[37]At the outset, when the DIP managed the estate, he failed to remit federal and state taxes collected post-petition.[38]Due to the DIP’s tax delinquencies, the Texas Comptroller moved to either convert the case to chapter 7 or dismiss it.[39]Instead of converting or dismissing the case, the bankruptcy court issued an order (“the Order”) appointing a chapter 11 trustee.[40]Thus, the trustee’s appointment was a “direct result” of the DIP’s inability to pay the post-petition taxes.[41]

The Order took a firm stance on the payment of taxes, making it clear that it was obligatory, and not optional, for the trustee to remit state sales tax.  The Order specifically required the trustee to stay current with tax payments and indicated that non-compliance with the Order’s instructions would trigger automatic conversion of the case from chapter 11 to chapter 7.[42]Despite the trustee’s awareness of the DIP’s tax issues and of the Order’s requirements, the trustee quickly fell behind on tax payments. Between March and November 2006,[43]the trustee failed to make at least five tax payments that were required either by the Order or by the court-approved reorganization plan (“the Plan”).[44]On at least two occasions when payments were missed, the Texas Comptroller filed a certificate of non-compliance that should have triggered conversion of the case to chapter 7, but the bankruptcy court gave the trustee a pass.[45]It was only after the trustee assured the court, at the Plan’s confirmation hearing, that he would be able to make timely tax payments and then subsequently failed to respond to two notices to cure defaults issued by the Comptroller that this adversary proceeding was commenced.[46]After all this, it is easy to understand why the Fifth Circuit, in addition to the frustrated Comptroller, thought it appropriate to use section 111.016 of the Texas Code to impose personal liability on the trustee.

III. Case Law Regarding a Trustee’s Personal Liability for a Willful Action that Results in the Breach of One of the Trustee’s Duties

The Fifth Circuit’s holding in Texas Pig Stands also finds support in prior cases examining the personal liability of both trustees and DIPs for willful action. Past cases in which a trustee or DIP was held personally liable for willful actions resulting in the breach of at least one of the trustee’s or DIP’s duties, laid the foundation for the Fifth Circuit’s holding. The holding finds support in (1) a seminal Supreme Court case on trustee liability, Mosser v. Darrow (“Mosser”),[47](2) a First Circuit case holding a trustee personally liable for failing to remit trust fund taxes, Lopez-Stubbe v. Rodriguez-Estrada (In re San Juan Hotel Corp.) (“San Juan Hotel”),[48]and (3) various cases imposing personal liability on DIPs.[49]

A.  Mosser

First, in Mosser, the Supreme Court held a chapter 11 trustee personally liable for the debtor-corporation’s loss because he permitted two “key employees” to make “substantial profits” during the reorganization at the debtor-corporation’s expense.[50]The Court indicated that the trustee was being held personally liable because his actions relating to the key employees were “willful and deliberate” and breached his duty of loyalty to the debtor.[51]Thus, Mosser established that a willful and deliberate breach of one of a trustee’s duties exposes the trustee to personal liability. Post-Mosser, federal courts have consistently held trustees personally liable for willful actions that result in the breach of at least one of their duties.[52]Therefore, holding a trustee personally liable for a willful breach of his duty to comply with applicable tax laws, as the Fifth Circuit did in Texas Pig Stands, is not unprecedented.

B.  San Juan Hotel

Second,in San Juan Hotel, the First Circuit held a trustee personally liable under section 6672 of the IRC for his failure to remit taxes.[53]The San Juan Hotel holding serves as precedent for the Texas Pig Stands holding for two reasons. First, holding a trustee liable under section 6672 of the IRC is comparable to holding a trustee liable under section 111.016 of the Texas Code because section 6672 is the functional equivalent of section 111.016.[54]Section 6672, like section 111.016, applies to trust fund taxes[55]and provides that a controlling party who “willfully” fails to pay these taxes may be held personally liable for them.[56]Second, the San Juan Hotel case serves as precedent because the facts of the case are strikingly similar to those of Texas Pig Stands. In San Juan Hotel, the First Circuit held a chapter 11 trustee personally liable for almost $400,000 in interest and penalties arising from his willful failure to pay section 6672 taxes while he was operating the debtor-corporation.[57]Thus, both cases involved a chapter 11 trustee who willfully failed to pay trust fund taxes. Furthermore, in both Texas Pig Stands and San Juan Hotel, the trustee misused trust fund taxes during his attempt to keep the debtor-corporation operational so that it could be sold as a going concern.[58]Lastly, each trustee’s attempt to keep the business operational proved to be unsuccessful and resulted in conversion of the case from chapter 11 to chapter 7.[59]

The main difference between the facts of these two cases is that the trustee in San Juan Hotel, unlike the trustee in Texas Pig Stands, reaped personal pecuniary benefit from his willful actions.[60]Although this factual difference arguably makes the San Juan Hotel trustee’s actions more reprehensible than those of the Texas Pig Stands trustee, it presumably had no bearing on the First Circuit’s section 6672 analysis. Although the First Circuit did not define the term “willfully” as used in section 6672, the First Circuit does not take a trustee’s motive into consideration in its section 6672 analysis.[61]Thus, the Fifth Circuit’s holding in Texas Pig Stands is in line with the First Circuit’s holding in San Juan Hotel.[62]

C.  Cases Involving Personal Liability of DIPs

Third, before Texas Pig Stands was decided, some federal courts, like the courts in Jones v. United States (“Jones”)[63]and Davis v. United States (“Davis”),[64]had held a DIP personally liable for failing to remit taxes pursuant to section 6672 of the IRC. The holdings of cases like Jones and Davis paved the way for the Texas Pig Stands holding because section 1107 of the Bankruptcy Code provides a DIP with all the same rights, powers, functions, and duties as a chapter 11 trustee, subject to a few minor exceptions.[65]Since a DIP and a trustee share the same duties, it logically follows that if a DIP can be held personally liable for a willful breach of a duty under section 6672, then so can a trustee. Since section 6672 liability is comparable to section 111.016 liability, the Fifth Circuit’s decision to hold a trustee who willfully breached one of his duties personally liable under section 111.016 was a logical extension of these holdings.

IV.  Trustees, Taxing Authorities, and Personal Liability in a Post-Texas Pig Stands World

The Fifth Circuit’s decision to hold a trustee who failed to remit state sales tax personally liable for over $100,000 in Texas Pig Stands is a harsh result for a trustee who reaped no pecuniary benefit from this failure. However, in light of the requirements of section 111.016 and the facts of the Texas Pig Stands case, which clearly establish that the trustee acted willfully, this harsh result is justified. Furthermore, the holdings of courts in prior cases examining the personal liability of trustees and DIPs for willful actions resulting in the breach of at least one of the trustee’s or DIP’s duties, strongly support the Texas Pig Stands holding. Therefore, the Texas Pig Stands decision does not significantly alter the state of trustee personal liability law.

The greatest significance of Texas Pig Stands is that it establishes a precedent for federal and state taxing authorities to bring actions against trustees under section 111.016 of the Texas Code as well as under section 6672 of the IRC and other state statutes modeled on section 6672. Given that section 6672 is nationally applicable and that the vast majority of states have personal liability statutes modeled after section 6672,[66]in theory, the Texas Pig Stands decision could inspire taxing authorities across the country to bring personal liability actions against trustees.[67]In the aftermath of Texas Pig Stands, however, courts are unlikely to render a flood of decisions imposing personal liability on trustees because most trustees, arguably, are unlikely to make the repeated willful mistakes made by the first-time trustee in Texas Pig Stands.[68]Furthermore, as the Supreme Court noted in Mosser, “there are ways by which a trustee may effectively protect himself against personal liability.”[69]For instance, when a trustee needs guidance on a matter, a trustee can ask the court to provide instruction, and a trustee can keep the court fully informed on the state of affairs so that any objections to his actions may be swiftly resolved.[70]That said, trustees should be aware that personal liability statutes like Texas Code section 111.016 and IRC section 6672 exist and should tread carefully when operating within their wakes.


[1]See 28 U.S.C. § 959(b) (2006)(“[A] trustee . . . shall manage and operate the property in his possession as such trustee . . . according to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof.”).

[2]See 28 U.S.C. § 960(a) (2006) (“Any officers and agents conducting any business under authority of a United States court shall be subject to all Federal, State and local taxes applicable to such business to the same extent as if it were conducted by an individual or corporation.”).

[3]610 F.3d 937 (5th Cir. 2010).

[4]See id. at 942.

[5]See id. at 940.

[6]Id. at 942.

[7]See id. at 940.

[8]See State v. Crawford, 262 S.W.3d 532, 539 (Tex. Ct. App. 2008) (noting section 111.016 was modeled after section 6672).

[9]See T. Keith Fogg, Leaving Money on the Table and Providing an Incentive Not to Pay—The Story of a Flawed Collection Device, 5 Hastings Bus. L.J. 1, 41 (2009) (“All states with the exception of Wyoming have responsible officer statutes that work with many similarities to section 6672. Most state statutes draw directly from 6672 and, even if indirectly, certainly draw from the same policy framework that drove the creation of 6672.”).

[10]See In re Tex. Pig Stands, Inc., 610 F.3d at 940.

[11]See id.; see also Brief of Appellee Texas Comptroller at 1–2 In re Tex. Pig Stands, Inc., 610 F.3d 937 (5th Cir. 2010) (No. 09–50544) [hereinafter Comptroller Brief].

[12]See In re Tex. Pig Stands, Inc., 610 F.3d at 940–41.

[13]See Comptroller Brief, supra note 11, at 3.

[14]See In re Tex. Pig Stands, Inc., 610 F.3d at 940.

[15]See id. at 940, 942.

[16]See Tex. Tax Code Ann. §111.016(a) (West 2010) (“Any person who receives or collects a tax or any money represented to be a tax from another person holds the amount so collected in trust for the benefit of the state and is liable to the state for the full amount collected plus any accrued penalties and interest on the amount collected.” (emphasis added)); see also Stephen W. Sather, et al., Borrowing from the Taxpayer: State and Local Tax Claims in Bankruptcy, 4 Am. Bankr. Inst. L. Rev. 201, 203 & n.16 (1996) [hereinafter Borrowing from the Taxpayer].

[17]State sales tax is an example of a trust fund tax imposed on customers. See Borrowing from the Taxpayer, supra note 16, at 203 (“Perhaps the most well known example of a trust fund tax is the sales tax the businesses collect from their customers.”). The federal income tax is an example of a trust fund tax imposed on employees. See Stephen W. Sather, Tax Issues in Bankruptcy,25 St. Mary’s L.J. 1363, 1383 (1994) [hereinafter Tax Issues in Bankruptcy] (noting the federal income tax is a common form of a trust fund tax).

[18]A business, obviously, cannot collect taxes. The term “business” in this context refers to any director, officer, employee, agent, or other individual who is responsible for collecting the trust fund taxes for the business. More than one person may be responsible for this task.

[19]See Borrowing from the Taxpayer, supra note 16, at 202.

[20]See Tax Issues in Bankruptcy,supra note 17, at 1385.

[21]See id.

[22]See Tex. Tax Code Ann. §111.016(b) (West 2010).

[23]See id.

[24]See Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 610 F.3d 937, 942 (5th Cir. 2010). The likely reason for the court’s lack of analysis is that both the court order appointing the trustee and the court approved reorganization plan required that the trustee make the state sales tax payments. See id. at 940. Thus, the trustee’s control and supervision of the tax payments was not really an open question.

[25]See id. at 942.

[26]See id.

[27]262 S.W.3d 532 (Tex. Ct. App. 2008).

[28]See In re Tex. Pig Stands, Inc., 610 F.3d at 942 (indicating reliance on definition of “willfully” used in State v. Crawford, 262 S.W.3d 532 (Tex. Ct. App. 2008)).

[29]See id. (quoting Crawford, 262 S.W.3d at 544).

[30]See id. (quoting Crawford, 262 S.W.3d at 538) (emphasis added).

[31]See id.

[32](2006). For the relevant text of these provisions see, supra notes 1 and 2.

[33]See U.S. Dep’t of Justice, U.S. Trustee Manual, Chapter 11 Case Administration ch. 3-9.4.5 (Oct. 1998), available at http://www.justice.gov/ust/eo/ust_org/ustp_manual/vol3toc.htm(“Failure to remit taxes is also a breach of the debtor’s statutory obligations and fiduciary duties.”).

[34]See U.S. Dep’t of Justice, Chapter 11 Trustee Handbook 52 (May 2004), available at http://www.justice.gov/ust/eo/private_trustee/library/chatper11/docs/Ch11Handbook-200405.pdf(“The trustee must . . . pay tax liabilities on behalf of the estate. A trustee who fails to comply with the federal withholding provisions runs the risk of being held personally liable for trust fund taxes not collected and paid over to the government.” (emphasis added)).

[35]See In re Tex. Pig Stands, Inc., 610 F.3d at 943–44.

[36]See id. at 942 (“We are also cognizant that although [the trustee] transgressed Texas tax law, he did not enrich himself from the estate . . . . [but] [g]ood intentions are irrelevant.”).

[37]See id. at 940; see also Comptroller Brief, supra note 11, at 5–6 (citing to record).

[38]See In re Texas Pig Stands, 610 F.3d at 940; Comptroller Brief, supra note 11, at 1.

[39]See Comptroller Brief, supra note 11, at 1–2. In addition to the Texas Comptroller, the United States Trustee’s Office, the IRS, and the Texas Workforce Commission moved to convert the case. Id.

[40]Id. at 5–6. The Order was issued in March 2006. See id.

[41]Id. at 5.

[42]Id. at 5–6.

[43]March 2006 is when the trustee was appointed. In re Texas Pig Stands, 610 F.3d at 940; Comptroller Brief, supra note 11, at 2. November is when the trustee closed Texas Pig Stands, Inc.’s restaurants. Comptroller Brief, supra note 11, at 10.

[44]See id. at 7–9 (noting trustee failed to timely remit the sales tax for the months of April, June, July, and August and then failed to pay administrative expense claims due in October). The court approved the reorganization plan in September 2006. Id. at 8.

[45]See In re Texas Pig Stands, 610 F.3d at 940; Comptroller Brief, supra note 11, at 7.

[46]See Comptroller Brief, supra note 11, at 9–11.

[47]341 U.S. 267 (1951).

[48]847 F.2d 931 (1st Cir. 1988).

[49]See, e.g., Jones v. U.S., No. 02-15815, 2003 WL 22701222 (9th Cir. Nov. 14, 2003), aff’g No. CV-S-90-048-LDG (LRL), 2002 WL 741542 (D. Nev. Mar. 13, 2002); Davis v. U.S., No. 06-0158, 2008 WL 4534071 (W.D. La. Oct. 7, 2008), aff’d, No. 09-303092, 2010 WL 4746253(5th Cir. Nov. 22, 2010).

[50]See Mosser, 341 U.S. at 268–70. In Mosser, the trustee allowed the employees to continue to trade securities during the reorganization.  See id. at 269. Sometimes the employees would acquire bonds and then resell them to the debtor-corporation at a profit. The employees would also acquire bonds from individuals who came to the trustee’s office to dispose of them and then resell the bonds to the debtor-corporation at a higher price. See id. at 269­–70, 272­–73.

[51]See id. at 272 (“Equity tolerates in bankruptcy trustees no interest adverse to the trust.”); see also 7 Collier on Bankruptcy, ¶ 1108.05, at 1108-14 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2011) (noting Mosser involved a breach of the duty of loyalty).

[52]See Theresa J. Pulley Radwan, Trustees in Trouble: Holding Bankruptcy Trustees Personally Liable for Professional Negligence, 35 Conn. L. Rev. 525, 526 (2003). It is well settled that a trustee may be held personally liable for willful and deliberate breaches of the trustee’s duties. See id. Many courts still grapple, however, with the question of whether a trustee may be held personally liable for negligent or grossly negligent action. See id. at 529.

[53]See In re San Juan Hotel Corp., 847 F.2d at 948.

[54]See supra note 8 and accompanying text (noting section 111.016 was modeled after section 6672).In fact, the Fifth Circuit acknowledged the interconnectedness of these two sections in Texas Pig Stands by adopting the Crawford court’s definition of “willfully” under section 111.016, which was based on various courts’ understanding of this term in section 6672 cases. See Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 610 F.3d 937, 942 (5th Cir. 2010).

[55]The trust fund language present in section 111.016(a) is absent from section 6672, but another section of the IRC, I.R.C. § 7501 (2006), indicates that section 6672 applies to trust fund taxes.

[56]See I.R.C. § 6672(a) (2006). Section 6672(a) provides:

“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.”

[57]See In re San Juan Hotel Corp., 847 F.2d at 947–49 (discussing findings on federal tax claim).

[58]Compare In re Tex. Pig Stands, Inc., 610 F.3d at 940 (“[Trustee] believed the best way to maximize the estate’s value was to sell the restaurants as going concerns instead of liquidating their assets piecemeal.”), with In re San Juan Hotel Corp., 847 F.2d at 935–36 (“[Trustee] sought to keep the hotel in operation and then to sell it.”).

[59]Compare In re Tex. Pig Stands, Inc., 610 F.3d at 941, with In re San Juan Hotel Corp., 847 F.2d at 935.

[60]Compare In re Tex. Pig Stands, Inc., 610 F.3d at 942 (indicating trustee did not enrich himself from the estate), with In re San Juan Hotel Corp., 847 F.2d at 935 (indicating trustee used estate resources for the personal benefit of himself, his family, and his friends).

[61]See, e.g.,Stuart v. United States, 337 F.3d 31, 36 (1st Cir. 2003) overruled on other grounds by Jennings v. Jones, 537 F.3d 430, 438 (1st Cir. 2009); Thomsen v. United States, 887 F.2d 12, 17 (1st Cir. 1989); Harrington v. United States, 504 F.2d 1306, 1316 (1st Cir. 1974). Similarly, the Fifth Circuit also does not consider motive in its section 6672 analysis. See, e.g., Davis v. United States, No. 09-30392, 2010 WL 4746253 (5th Cir. Nov. 22, 2010); Barnett v. IRS, 988 F.2d 1449, 1457 (5th Cir. 1993); Gustin v. United States, 876 F.2d 485, 492 (5th Cir. 1989).

[62]There is some indication that the Fifth Circuit was familiar with the San Juan Hotel case and scrutinized its holding prior to rendering the Texas Pig Stands decision. See In re Tex. Pig Stands, Inc., 610 F.3d at 942 n.5 (citing to San Juan Hotel as a case that held a trustee personally liable for failing to remit taxes).

[63]No. 02-15815, 2003 WL 22701222 (9th Cir. Nov. 14, 2003), aff’g No. CV-S-90-048-LDG (LRL), 2002 WL 741542 (D. Nev. Mar. 13, 2002).

[64]No. 06-0158, 2008 WL 4534071 (W.D. La. Oct. 7, 2008), aff’d, No. 09-303092, 2010 WL 4746253(5th Cir. Nov. 22, 2010).

[65]See 11 U.S.C. § 1107(a) (2006). The exceptions are the following: a DIP does not have a right to compensation; a DIP does not perform the duties specified in section 1106(a)(2)–(4); and a DIP’s rights, powers, functions, and duties may be altered by the court. See id.

[66]See supra notes 8­–9 and accompanying text.

[67]See Thomas Szaniawski, Trustee Held Liable for Debtor’s Tax Deficiency, Am. Bankr. Inst. J., Nov. 2010, at 80 (reaching similar conclusion).

[68]See id. (making similar argument).

[69]Mosser v. Darrow, 341 U.S. 267, 274 (1951).

[70]See id. at 274–75.

© 2011 Copyright Katelyn Trionfetti

TRENDING LEGAL ANALYSIS


About this Author

Katelyn Trionfetti is a J.D. candidate at St. John’s University School of Law and she currently serves as the Managing Editor of the American Bankruptcy Institute Law Review. Prior to attending St. John’s, Katelyn received her Bachelor’s Degree in International Studies and Italian from Colby College in Waterville, Maine.

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