Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-23-1995

Lauckner v United States
Precedential or Non-Precedential:

Docket 94-5747




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Recommended Citation
"Lauckner v United States" (1995). 1995 Decisions. Paper 277.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/277


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    FOR PUBLICATION




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                             UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                      ___________

                                         No. 94-5747
                                         ___________


                                      ALAN K. LAUCKNER

                               v.

                                UNITED STATES OF AMERICA,
                                        Appellant

                               v.

                          JOHN HUG; PAUL E. COSTELLO; THOMAS J.
                            GIACOMARO; UMBERTO J. GUIDO, JR.;
                          WILLIAM McGLYNN; LEONARD A. PELLULO,
                                        Counterclaim Defendants

                                         ___________


                      Appeal from the United States District Court
                             for the District of New Jersey
                          (D.C. Civil Action No. 93-cv-01594)

                                         ___________


                                    Argued:   June 29, 1995

                  PRESENT:   HUTCHINSON*, ROTH and WEIS, Circuit Judges

                                 (Filed October 23, 1995)

                                        ____________




* The Honorable William D. Hutchinson participated in the oral argument and Opinio
the above case but died before the Opinion could be filed.



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Loretta C. Argrett, Esquire
  Assistant Attorney General
Faith S. Hochberg, Esquire
  United States Attorney
Gary R. Allen, Esquire
Richard Farber, Esquire                 (Argued)
Sara S. Holderness, Esquire
Tax Division
United States Department of Justice
P.O. Box 502
Washington, DC     20044        Attorneys for Appellant

Paul S. Hollander, Esquire
Okin, Cohen & Hollander
Twelfth Floor
One Parker Plaza
Fort Lee, NJ     07024

          and

Michael I. Saltzman, Esquire            (Argued)
Leslie M. Book, Esquire
Stuart B. Katz, Esquire
Baker & McKenzie
805 Third Avenue
New York, NY     10022
               Attorneys for Appellee Umberto J. Guido, Jr.

                                       ____________

                                   OPINION OF THE COURT
                                       ____________


PER CURIAM




          Appellant, the United States of America, appeals an order of the United S

District Court for the District of New Jersey holding that an Internal Revenue Serv

("IRS") assessment of a penalty against Umberto J. Guido, Jr. ("Guido"), under sect

6672 of the Internal Revenue Code (the "Code"), was time barred by the three year s

of limitations contained in Code section 6501(a).



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          Section 6672 of Title 26 provides:
          Any person required to collect, truthfully account for, and pay over
          any tax imposed by this title who willfully fails to collect such tax,
          or truthfully account for and pay over such tax, or willfully attempts
          in any manner to evade or defeat any such tax or the payment thereof,
          shall, in addition to other penalties provided by law, be liable to a
          penalty equal to the total amount of the tax evaded, or not collected,
          or not accounted for and paid over.


26 U.S.C.A. § 6672 (West Supp. 1994).   Section 6501(a) of the same title states tha

"[e]xcept as otherwise provided in this section, the amount of any tax imposed by t

title shall be assessed within 3 years after the return was filed."   26 U.S.C.A. §

(West 1989).   Because the IRS's section 6672 assessment against Guido was made more

three years after the relevant returns were deemed to have been filed, the District

held that the IRS's assessment was time barred.    The IRS contends the district cour

because no statute of limitations, including the one contained in section 6501(a) o

code, applies to IRS assessments under section 6672.   While it admits that it maint

contrary position for over 30 years, it contends that recent decisions of the court

compel the conclusion that the IRS's prior interpretation of the statute is erroneo

          We disagree and will affirm the district court's order dismissing the IRS

section 6672 claim as time barred by the statute of limitations contained in Code s

6501(a) for the reasons given in the district court's opinion reported at Lauckner

United States, No. 93-1594 (D.N.J. May 4, 1994).




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