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GRAUNKE v. UNITED STATES

February 28, 1989

MARK GRAUNKE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: HART

 WILLIAM T. HART, UNITED STATES DISTRICT JUDGE

 Plaintiff Mark Graunke seeks a refund of money paid against a 100% penalty assessment made by the Internal Revenue Service ("IRS") pursuant to 26 U.S.C. § 6672. The United States filed a counterclaim against plaintiff seeking a judgment in the amount of the unpaid balance of the assessment. The United States also brought suit against Ronald R. Curcio to reduce to judgment a 100% penalty assessment made against him for the same withholding taxes. Curcio did not contest his liability and a judgment has been entered against him. The case is now before the court after a bench trial for entry of findings of fact and conclusions of law.

 The issue to be decided is whether the plaintiff Mark Graunke was a person responsible "to collect, truthfully account for, and pay over any tax imposed" within the meaning of Section 6672, Title 26, United States Code.

 I.

 Findings of Fact

 A.

 During the trial the parties stipulated that if the plaintiff is liable to the United States on its counterclaim that the amount due is $ 153,998.64 plus interest from June 16, 1986, the date of a 100% penalty assessment.

 As a part of the pretrial order the parties entered into a written stipulation of facts. Those facts, except as superseded by the parties' stipulation as to the amount due, are adopted as findings of fact as follows:

 1. Plaintiff and counterclaim-defendant, Mark Graunke, is a citizen of the United States and resides at 8111 Salisbury Avenue, Lyons, Illinois 60534.

 2. Additional defendant on counterclaim, Ronald Curcio, is a citizen of the United States and resides at 10 S. 344 W. Hampshire Lane, Hinsdale, Illinois 60521.

 3. The defendant and counterclaimant is the United States of America.

 4. The court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1346(a) and 1346(c) and 26 U.S.C. § 7402(a).

 5. On June 16, 1986, a delegate of the Secretary of the Treasuary made an assessment against Mark Graunke for a one hundred percent penalty pursuant to the provisions of 26 U.S.C. § 6672, by which the United States claims that Mark Graunke willfully failed to collect, truthfully account for and pay over withheld federal income and Federal Insurance Contributions Act taxes due and owing from Heritage Cabinet Co. for the fourth quarter of 1983 and all four quarters of 1984 and 1985. Notice of the assessment was made on plaintiff and counterclaim-defendant, Mark Graunke, on June 16, 1986.

 6. As of January 26, 1988, plaintiff and counterclaim-defendant, Mark Graunke, had made payments of $ 84.90 and $ 52.48.

 7. Plaintiff and counterclaim-defendant, Mark Graunke, was employed by Heritage Cabinet Co. during the fourth quarter of 1983 and all four quarters of 1984 and 1985.

 9. Additional defendant on the counterclaim, Ronald Curcio, admits that he willfully failed to collect, account for, and pay over withheld federal income and Federal Insurance Contributions Act taxes due and owing for Heritage Cabinet Co. for all of the periods for which he was assessed.

 11. The documents received by the United States from Harris Argo Bank and Argo Savings and Loan pursuant to the subpoenas issued by the court in this matter are true and accurate copies of bank statements, ...


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