Schoot v. United States

664 F. Supp. 293 (N.D. Ill. 1987)

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Nature of the Case

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Facts

P and Vorbau were each assessed a 100% penalty (held jointly and severally liable) of $47,194.53 pursuant to 26 U.S.C. § 6672 for their willful failure to collect, truthfully account for and pay over withholding and Federal Insurance Contributions Act taxes due and owing from Steelograph Business Interiors, Inc. Despite the assessments and demands made upon Vorbau by the government, and except for the application of a refund in the amount of $1,807.00, Vorbau has refused or neglected to pay the assessed liability. Despite the assessments and demands made upon P by the government, and except for the application of a refund in the amount of $137.31 and the payment of $50.00, he has refused or neglected to pay the assessed liability. At all relevant times herein, P was an employee of Steelograph, and he performed only ministerial duties at the direction of Vorbau. At all relevant times herein, Vorbau was President of Steelograph. P did not have control over the company's payroll or business decisions nor did P decide which creditors Steelograph would pay. Those types of decisions were made by Vorbau, who was solely responsible for payment of the relevant taxes. P originally filed a claim under 28 U.S.C. §§ 1331, 1346(a)(1) against the United States to recover Internal Revenue taxes and interest allegedly erroneously or improperly assessed or collected from P. The United States counterclaimed against P for the balance due on the penalty. Vorbau was made a party to this action as an additional defendant on the government's counterclaim pursuant to Fed.R.Civ.P. 13(h). P subsequently filed a cross-claim against Vorbau, pursuant to Fed.R.Civ.P. 13(g) for contribution and indemnification. Vorbau made a motion to dismiss the Counterclaim of the United States under Fed.R.Civ.P. 12(b) for lack of personal jurisdiction, improper venue and improper joinder and to dismiss the cross-claim by P under Fed.R.Civ.P. 12(b) for lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, and improper venue.