The opinion of the court was delivered by: Mihm, Chief Judge.
This matter is before the Court for decision following
evidentiary hearings on the United States' Motion to Dismiss and
for Default. For the reasons set forth below, the United States'
Motion is GRANTED. Pursuant to Rule 52 of the Federal Rules of
Civil Procedure, the Court's findings of fact and conclusions of
law are set forth below. These findings are intended to
supplement the oral findings made by the Court on September 9,
Thomas Brady filed this lawsuit on October 20, 1992, seeking a
refund of tax paid to the United States. Mr. Brady maintains that
the Internal Revenue Service (IRS) improperly assessed and
collected employment taxes from him. Specifically, Mr. Brady
argues that his construction business used independent
contractors and not employees, and, therefore, he was not an
employer within the meaning of the Internal Revenue Code.
On or about March 22, 1993, the United States amended its
answer to add a counterclaim seeking to reduce to judgment its
tax assessment against Mr. Brady. The United States' counterclaim
includes all of the employment taxes and penalties allegedly owed
by Mr. Brady for the years 1983 through 1988, inclusive.
On December 16, 1993, the United States filed its Motion to
Dismiss and for Default, arguing that Mr. Brady had destroyed and
manufactured evidence and that he had testified in a misleading
and inaccurate fashion in response to the Government's
interrogatories and requests for production. The Government also
claimed that Mr. Brady's deposition testimony was false and
1. Mr. Brady began his business as a sole proprietor doing
general home repair contracting during the 1970s. (Vol. II, p.
2. Between 1983 and 1988, the years at issue, Mr. Brady was so
employed. His projects included a variety of commercial and
residential construction, including aluminum residing, window
replacement, pool installation, building garages and porches and
3. From 1983 through 1985, Mr. Brady conducted his business
from his home located at 145 Stonegate Drive in Canton, Illinois.
(Vol. II, p. 137) After acquiring a lumberyard known as Linn
Street Lumber in January, 1986, Mr. Brady headquartered his
business therein. Id.
4. The Court rejects Mr. Brady's testimony that he never paid
his workers an hourly wage. The evidence demonstrates that Mr.
Brady not only paid his workers an hourly wage, but that he once
had records reflecting that practice.
5. Gerald Nelson, who was employed by Mr. Brady from the end of
1983 through November of 1986 (Vol. I, p. 60), testified that he
started working for Mr. Brady at a rate of $5.00 per hour and was
thereafter given raises. By the time he left Mr. Brady's employ,
he was making $9.25 per hour. (Vol. I, pp. 61-62) The only time
Mr. Brady paid Mr. Nelson in some manner other than an hourly
rate was for a brief period in late 1983 or in early 1984 when
Mr. Brady paid him based on the number of feet of siding Mr.
Nelson had installed. (Vol. 1, pp. 72-76, 84, 97-98)
6. At the start of his employment with Brady Construction, Mr.
Nelson reported to Mr. Brady the numbers of hours he had worked
and the projects associated with those hours on random pieces of
paper. (Vol. I, pp. 61-62) Mr. Nelson turned those pieces of
paper over to Mr. Brady and, in turn, received a paycheck. (Vol.
I, p. 62) Toward the end of 1985 or early 1986, Mr. Brady had Mr.
Nelson complete prepared "time sheets". Id. The "time sheets"
required Mr. Nelson to record the name of the job he was working
on, the number of hours expended on the job, and the days of the
week associated with those hours. Id. The time slips and sheets
generally were turned in to Mr. Brady or his secretaries on
Thursday, and Mr. Nelson received his paycheck on Friday. (Vol.
I, p. 63)
7. Rick Sheets began working for Mr. Brady as a
carpenter/laborer in 1979. (Vol. I, p. 187) He terminated his
employment with Mr. Brady around the end of 1987. Id. During
his employment with Mr. Brady, Mr. Sheets earned between $4.50
and $8.00 per hour. (Vol. I, p. 189) Mr. Sheets also testified to
submitting "time sheets" to Mr. Brady prior to his receipt of his
weekly paycheck. The time sheets reflected the hours and days of
the week which Mr. Sheets worked and specified the jobs upon
which he expended his time. (Vol. I, p. 191) For the majority of
his employment with Mr. Brady, Mr. Sheets completed and turned in
his time sheets on Friday and received his paycheck on Friday.
(Vol. I, p. 191) At some point, however, this practice changed,
and Mr. Brady decided to stagger his workers' pay day because "it
looked too obvious that [his workers] were being paid always on
Friday and being claimed as subcontractors." (Vol. I, p. 192)
8. Both Daniel York and Mark Steven Smith similarly testified
that Mr. Brady paid them an hourly wage during their employment
with Mr. Brady. (Vol. I, pp. 143, 145, 149; Vol. II, pp. 276,
280-281, 287, 290) They too testified about the written reports
they submitted to Mr. Brady on a weekly basis which itemized the
number of hours they worked during the preceding week. (Vol. I,
pp. 146, 148; Vol. II, pp. 287-288) The Court
notes in evaluating the credibility of their testimony that Mr.
York still considers himself to be Mr. Brady's friend (Vol. I, p.
160) and, as Mr. Brady pointed out, Mr. Smith is not a part of
the prevailing wage actions against Mr. Brady. (Vol. II, p. 286)
9. Mr. Brady's former staff members corroborated the workers'
testimony that they were paid on an hourly basis and submitted
supporting written reports. Carolyn Apt recalled specifically the
manner in which Mr. Brady's workers' wages were calculated. She
"When Mr. Brady's guys would come in at the end of
the week and turn in their time sheets, occasionally
[Mr. Brady] would hand [the time sheets] to me or
Christine Banks, who was working for him at the time.
We would figure up the hourly wage and how many hours
the guys worked on these sheets, and then I would
draw up the paychecks for those."
(Vol. I, p. 21) Ms. Apt's description of the content of the time
sheets was similar to the description given by the
above-referenced workers. (Vol. I, p. 22)
10. Linda Hefflin, another of Mr. Brady's office staff, also
testified that Mr. Brady paid his workers an hourly wage and that
the workers recorded their time on written time slips submitted
weekly to Mr. Brady. (Vol. II, pp. 46-48) Ms. Hefflin described
the time slips submitted by Mr. Brady's workers to Mr. Brady as
reflecting the number of hours each worker spent on Mr. Brady's
various projects, associated with the days of the week during
which that work was performed. (Vol. II, pp. 46, 84)
11. The time records for Brady Construction for the years prior
to 1986 were retained by Mr. Brady in one or more shoe boxes
stored in a filing cabinet in his office. (Vol. I, pp. 23-24, 27,
40, 41; Vol. II, pp. 47-50) During several months during the
middle part of 1986, Lynn and Tom Brady instructed Ms. Apt to
transfer the information from the time slips in the shoe boxes to
a spreadsheet. (Vol. I, pp. 23-24) Ms. Apt created a chart
reflecting the information included on the time slips: workers'
names, the job name, the hours and associated days of the week,
hourly wage and total pay for a job. (Vol. II, p. 51; Gov't
Exhibit 24) The time slips were thereafter destroyed. (Vol. II,
12. Mr. Brady failed to disclose the existence of the time
slips or to explain their destruction in response to specific
attempts by the Government to determine that information.
13. At the hearing on this matter, Mr. Brady denied paying his
workers by the hour. (Vol. II, p. 242) He also testified that any
records he might have reflecting hours worked were submitted
merely for the convenience of those working for him. (Vol. II, p.
222) Mr. Brady further denied any knowledge of the time slips
that each of his employees testified they submitted and that Ms.
Hefflin and Ms. Apt recalled having seen stored in shoe boxes in
Mr. Brady's office. (Vol. II, pp. 227, 248) Incredibly, he also
disavowed any knowledge about the few time slips that remain in
his files, time slips that he offered into evidence. (Vol. II,
14. Mr. Brady willfully destroyed both the time slips and the
sheets that summarized those time slips. Mr. Sheets testified
about the destruction of some time records during his direct
Q. What did Mr. Brady tell you regarding the
destruction of documents?
A. He told me that he had been asked to produce the
time sheets for the man and that he couldn't
produce those ...