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United States v. Burczyk

decided: June 2, 1977.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAYMOND BURCZYK, DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLANT, V. DANIEL W. HOWARD, VILLAGE OF WATERFORD, STATE OF WISCONSIN, DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, THIRD PARTY DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 72-C-689 - Myron L. Gordon, Judge.

Pell and Sprecher, Circuit Judges, and East,*fn* Senior District Judge.

Author: East

EAST, Senior District Judge.

The Appeal :

The appellant Raymond Burczyk (Burczyk) appeals the order of the District Court which, pursuant to 31 U.S.C. § 192, holds him personally liable to the United States (Government) for failing to satisfy a tax claim of the Government out of the assets of an insolvent corporation prior to paying the respective tax claims of the State of Wisconsin (State) and the Village of Waterford (Village).

We note jurisdiction under 28 U.S.C. § 1291 and affirm.

State Court Proceedings :

The State of Wisconsin Circuit Court for the County of Racine (State Court) entertained an insolvency proceeding brought against Alby Manufacturing, Inc. (Alby). Burczyk was appointed receiver with power over liquidation and distribution of Alby's assets. Alby was indebted, inter alia, to the Government for income taxes withheld from its employees in an amount exceeding $16,000, to the State for unpaid unemployment taxes and to the Village for unpaid personal property taxes.

The Government, after notice of Burczyk's appointment as receiver, timely filed its claim of priority for the amount of the unpaid withholding taxes. 31 U.S.C. § 191.*fn1 Thereafter the Government gave notice to Burczyk of his potential personal liability in the event of his failure to honor the Government's claim of priority. 31 U.S.C. § 192.*fn2

Wisconsin statute § 108.22 provides for the perfection of tax claims by the State and its municipalities by the docketing of a warrant in the amount of the respective claims. The State and the Village timely filed their respective "perfected" tax claims.

The Government, except for the filing of its claim and notice, did not further participate in the State Court insolvency proceeding. Based upon Burczyk's final report, which failed to set forth the priority of the Government's claim, the State Court ordered the satisfaction of the tax claims of the State and the Village prior to the Government's claim. The remaining assets of Alby were insufficient to satisfy the claim of the Government.

The Government belatedly received notice of the payments to the State and the Village from the assets of Alby to its exclusion and sought appeal to the Supreme Court of Wisconsin. That court dismissed the appeal as not timely.

District Court Proceedings :

The Government, pursuant to § 192, sought to recover from Burczyk personally the amount of $5,160.49. This represented the amount paid upon the claims of the ...


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