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McClendon v. United States

United States Court of Appeals, Fifth Circuit

June 14, 2018

GAIL MCCLENDON, Plaintiff - Appellant,

          Appeal from the United States District Court for the Southern District of Texas

          Before DAVIS, JONES, and HIGGINSON, Circuit Judges.

          W. EUGENE DAVIS, Circuit Judge

         Gail McClendon appeals the district court's summary judgment determining that her late husband, Dr. Robert McClendon ("McClendon"), was personally liable under 26 U.S.C. § 6672 for over $4.3 million in penalties for the unpaid withholding taxes of his medical practice. She also appeals the district court's subsequent denial of McClendon's motion requesting reconsideration of the summary judgment. As explained more fully below, we REVERSE the denial of the motion for reconsideration, AFFIRM IN PART and VACATE IN PART the summary judgment, and REMAND the case for further proceedings consistent with this opinion.


         In 1979, McClendon founded Family Practice Associates of Houston ("FPA"), a professional medical association. By 1995, FPA employed five doctors, numerous nurses, and related support staff. During that year, the board of directors of FPA hired Richard Stephen, a certified public accountant, to serve as FPA's chief financial officer. From 1995 to 2009, Stephen informed the board that FPA was doing well financially and that all of FPA's tax obligations were being met.

         On or about May 11, 2009, however, FPA learned from the Internal Revenue Service ("IRS") that Stephen's representations were false. Specifically, the IRS had no record of any payroll tax deposits on behalf of FPA for several of the previous years. FPA subsequently discovered that Stephen failed to remit FPA's federal withholding taxes for twenty-one consecutive quarters, from the third quarter of 2003 to the third quarter of 2008, and that he had been stealing money from FPA for many years. The consequences were disastrous: FPA accrued an unpaid withholding tax balance of over $11 million.

         According to McClendon's deposition testimony and affidavit, as soon as the board discovered that the payroll taxes were unpaid, FPA stopped paying its creditors and vendors, as advised by counsel. To avoid using any of FPA's existing or future funds, and to ensure that FPA's staff employees received their payroll checks in May 2009, McClendon and his wife loaned FPA $100, 000. In addition, McClendon and his two fellow board members created a separate company, MST Interests, L.L.C., to use their own personal funds to pay FPA's non-IRS creditors. FPA remitted all existing receivables and any new receivables it subsequently received directly to the IRS. The amount of receivables FPA paid the IRS totaled over $400, 000. FPA also turned over to the IRS $250, 000 in insurance proceeds it received on the insurance claim it filed for employee theft.[1]

         McClendon and the other board members filed a criminal complaint against Stephen. In 2013, Stephen pleaded guilty in Texas state court to first-degree felony theft of property over $200, 000. He was sentenced to ten years in prison.


         On August 27, 2012, the IRS assessed approximately $4.3 million in penalties against McClendon personally, pursuant to 26 U.S.C. § 6672, [2] for the twenty-one quarters FPA failed to remit its withholding taxes. McClendon paid a nominal portion of the penalties and then filed suit under 26 U.S.C. § 7422, [3]seeking a refund of the portion paid and abatement of the penalties assessed. McClendon alleged that the IRS wrongfully assessed the penalties because he "was not a responsible party and did not willfully fail to remit funds due to the IRS, " as required to impose liability under § 6672.

         In response, the Government filed a counterclaim against McClendon, seeking to convert the penalties into a $4.3 million judgment. The Government also filed a counterclaim against Stephen, adding him as a party to the action. The Government maintained that joining Stephen was proper because both Stephen and McClendon had been assessed § 6672 penalties for FPA's unpaid withholding taxes for the same time periods. The Government further contended that, under the jurisprudence interpreting § 6672, Stephen and McClendon were jointly and severally liable for the penalties.

         The Government thereafter filed a motion seeking summary judgment against McClendon only. The Government argued that it was entitled to summary judgment because the evidence established the two requirements necessary for liability under § 6672: (1) McClendon was a "responsible person" for payment of FPA's payroll taxes; and (2) McClendon "willfully failed" to pay the taxes to the IRS. The Government contended that McClendon's failure was willful because he admitted to using FPA funds to pay creditors other than the IRS after he learned of the unpaid payroll taxes. In particular, McClendon admitted that he loaned FPA $100, 000 to cover the May 2009 payroll for FPA's staff employees; that he paid Dr. Trippett $1, 840; and that he paid John Hancock Insurance Company $2000. The Government additionally asserted that McClendon was grossly negligent in delegating, with no oversight, the responsibility of paying payroll taxes to Stephen for years and that such conduct also constituted willfulness under § 6672. Therefore, the Government asserted that summary judgment should be granted in its favor for the $4.3 million in assessed penalties, less any payments or credits to which McClendon was entitled.

         In his opposition to the Government's motion, McClendon conceded that he was a responsible person under § 6672. He contested, however, that he willfully failed to pay FPA's payroll taxes after learning of the unpaid taxes. McClendon asserted that the $2, 000 payment to John Hancock Insurance Company and the $1, 840 payment to Dr. Trippett involved funds relating to FPA's 401(k) plan and did not involve any funds belonging to FPA that could have been used to pay the IRS. He further asserted that his $100, 000 loan to FPA also could not have been used to pay the IRS because those funds were "encumbered." Specifically, he asserted that he loaned FPA the money with the restriction and agreement that the funds would only be used to cover the May 2009 payroll for FPA's staff employees. He also asserted that his loan constituted "reasonable cause, " absolving him of § 6672 liability under the jurisprudence. Finally, McClendon contended that he was not grossly negligent by relying on Stephen to handle FPA's payroll taxes.

         In its reply memorandum, the Government reasserted that McClendon's admission that he loaned FPA $100, 000 to pay its employees instead of the IRS after learning of the unpaid taxes established that McClendon acted willfully under § 6672. The Government further maintained that, contrary to McClendon's contentions, his $100, 000 loan to FPA was not "encumbered" under the relevant jurisprudence and, thus, could have been used to pay the IRS. Finally, the Government asserted that McClendon's actions did not constitute "reasonable cause."

         The district court granted the Government's motion for summary judgment against McClendon. It determined that McClendon acted willfully under § 6672 because, after learning of the unpaid taxes, he loaned FPA $100, 000, which FPA then used to make payroll instead of paying the IRS. The district court further determined that although McClendon contended that the loan's use was restricted to payment of the May 2009 payroll, the funds were not encumbered for purposes of § 6672 liability. Relying on cases from other circuits, [4] the district court concluded that a responsible person cannot "shield himself from liability by entering into preferential lending arrangements, in which the person voluntarily assumes a contractual obligation to pay some set of creditors before paying the government." The district court further determined that McClendon was not entitled to the reasonable-cause defense. It issued a judgment in favor of the Government for the total amount of penalties assessed against McClendon, approximately $4.3 million, less any payments already made.


         McClendon thereafter filed a motion for reconsideration under Federal Rule of Civil Procedure 54(b), or in the alternative, to alter or amend the judgment under Rules 52(b) and 59(e). In the motion, McClendon raised a new argument. He asserted that under this Court's precedent, even if he were a responsible person and acted willfully, his liability under § 6672 was limited to the amount of unencumbered funds FPA had available after he learned of the unpaid taxes. Pointing to his deposition testimony, his affidavit in support of summary judgment, and copies of checks, he asserted that the evidence submitted at the summary judgment level reflected that all of FPA's available unencumbered funds were paid over to the IRS after his discovery of the unpaid taxes. He contended that the only evidence of funds not paid over to the IRS was the $100, 000 loan he made to FPA to cover the May 2009 payroll. McClendon asserted that, therefore, he could be liable to the Government for, at most, $100, 000.

         In its opposition to McClendon's motion for reconsideration, the Government acknowledged the jurisprudence providing for a cap on § 6672 liability. The Government asserted, however, that McClendon was not entitled to this limitation on his liability because he "failed to meet his burden of proving what the universe of available funds were, whether they were unencumbered, and if so [whether] they were paid to the IRS." Pertinent to the issues on appeal, the Government further contended that entitlement to the limitation on his liability "necessarily require[d] a full accounting of all of the company's available funds after the given date that knowledge was acquired." The Government pointed out that McClendon had not introduced any of FPA's bank records to show how much was deposited after his discovery of the unpaid taxes.

         Additionally, the Government argued that even if the cap were available, the district court would still need to address the Government's alternative argument on willfulness: that McClendon was grossly negligent with regard to the risk that FPA's withholding taxes would go unpaid. The Government asserted that, in that case, McClendon would not be entitled to a limit on his § 6672 liability equal to the amount of available unencumbered funds after discovery of the unpaid taxes. Furthermore, the Government argued that the district court's summary judgment was a final judgment which should not be reconsidered.

         In reply, McClendon provided a copy of an additional check which he asserted showed that FPA's closing balance in July 2009 of $296, 722.28 had all been turned over to the IRS. McClendon further contended that any determination regarding his alleged gross negligence was "rife with genuine issues of material fact."

         The district court denied McClendon's motion for reconsideration "for two independent reasons." First, applying the standard for Rule 59(e) motions, the district court determined that McClendon should have raised his limitation of liability argument in the summary judgment briefing and that he could not raise the argument for the first time in his motion to reconsider. Second, the district court concluded that, even if the argument were properly before it, McClendon's argument failed on the merits. Specifically, the district court determined that "McClendon had the burden of proof on the issue of the availability of the funds" and that he failed "to submit or identify record evidence" satisfying his burden. The district court then certified its grant of summary judgment in favor of the Government and its denial of McClendon's motion for reconsideration for immediate interlocutory appeal under Rule 54(b). McClendon timely appealed.


         This court reviews a grant of summary judgment de novo, applying the same standard as the district court.[5] "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[6] When the nonmovant bears the burden of proof at trial, "the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial."[7] "All reasonable inferences must be viewed in the light most favorable to the party opposing summary judgment, and any doubt must be resolved in favor of the non-moving party."[8]

         We typically review the denial of a motion for reconsideration, whether under Rule 54(b) or Rule 59(e), for abuse of discretion.[9] However, when the district court denies a motion to reconsider a grant of summary judgment, but, in doing so, considers any materials attached thereto and still grants summary judgment, our review is de novo, as those materials become part of the summary judgment record.[10]


         In our decision in Austin v. Kroger Texas, L.P., [11] issued just weeks after the district court's decision in this matter, we clarified the relationship between Rules 54(b) and 59(e). Whereas Rule 59(e) applies only to final judgments and does not permit consideration of arguments that could have been raised previously, Rule 54(b) applies to interlocutory judgments and permits the district court "to reconsider and reverse its decision for any reason it deems sufficient."[12] We held that when a district court applies the more stringent Rule 59(e) standard in denying a motion to reconsider an interlocutory order, we must vacate and remand "for the district court to reconsider [the] motion for reconsideration under the more flexible Rule 54(b)."[13]

         In this case, the district court's summary judgment against McClendon was interlocutory because it did not end the action, as the Government's counterclaim against Stephen remained pending.[14] Rule 54(b), therefore, provided the correct standard for deciding McClendon's motion for reconsideration. If the district court had relied only on its first basis for denying the motion- that McClendon could not raise his limitation of liability argument for the first time in a motion to reconsider under Rule 59(e), we would be required under Austin to vacate the district court's denial of the motion to reconsider and remand for application of the correct standard.[15]However, the district court provided an additional basis for denying the motion. It determined that McClendon's motion to reconsider also failed on the merits because McClendon, at the summary judgment stage and in his motion for reconsideration, "did not disprove the presumption that he was liable for the penalty by accounting for [FPA's] funds and demonstrating that they could not cover the tax obligation."

         When the district court denies a motion to reconsider a grant of summary judgment, but considers the evidence attached to the motion in doing so and still grants summary judgment, our review is de novo.[16] As explained more fully below, we respectfully disagree that McClendon failed to demonstrate a genuine issue of material fact as to whether the amount ...

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