1995 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
1 

 FOR PUBLICATION
2 

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. 
3 

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). 
4 

 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).