United States v. Sven Johnson , 355 F. App'x 963 ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 8, 2009*
Decided December 14, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. C UDAHY, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09-2492 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v. No. 05 C 1509
SVEN O. JOHNSON, Wayne R. Andersen, Judge.
Defendant-Appellant.
Order
The Internal Revenue Service assessed a penalty against Sven Johnson under 26
U.S.C. §6672, after concluding that he had failed to collect and pay trust-fund taxes (such
as income tax withheld from employees’ wages) that his firm, Sven O. Johnson Associ-
ates, Inc., should have paid. When Johnson did not pay, the United States filed suit to
collect. The district court granted summary judgment in the United States’ favor.
Johnson contends that there are disputed issues of material fact about his liability,
but we agree with the district court’s conclusion that no important fact is in dispute.
Johnson conceded that his firm owes taxes and that he is its principal manager, which
makes him a responsible person subject to liability under §6672. His defense in the dis-
trict court was not that the trust-fund taxes have been paid, but that non-payment was
not wilful. Yet the only basis of that contention is an assertion that the firm lacks funds.
The record shows that it paid more than $1.2 million to other creditors while failing to
pay the United States. Such a preference for private creditors over tax obligations is ex-
actly what §6672 is designed to block. Johnson’s contention that the amount of the li-
ability is disputed also is unavailing. The formal assessment quantifies what Johnson
owes and is presumed to be correct. See United States v. Fior D’Italia, Inc., 536 U.S. 238,
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 09-2492 Page 2
242–43 (2002); United States v. Davenport, 106 F.3d 1333, 1336 n.4 (7th Cir. 1997). If he
thought that he owed less, he had to introduce evidence supporting a different figure.
He has not done so. The assessment thus stands uncontested.
After making the assessment, the United States recorded tax liens on Johnson’s
property. See 26 U.S.C. §§ 6321, 6322. While this suit was under advisement in the dis-
trict court, the IRS notified Johnson that the liens had been removed because all taxes
had been paid. That release was followed by a declaration that it had been sent in error
and that the liens continue in force. This sequence sets up two more arguments for
Johnson: first, that the original notice shows that he owes nothing; second, that the
statute of limitations prevents the United States from levying on his property to collect.
The original notice supplies some evidence of payment. But the follow-up declara-
tion that a blunder had occurred (a position supported by testimony in a deposition)
returned matters to their original state: The United States contends that the taxes re-
main unpaid. What Johnson needs, if he wants to call that position into question, is
proof of payment. A cancelled check (corporate or personal) might do. Bank statements
showing a debit equal to the outstanding taxes might do. But Johnson has not demon-
strated payment. He cannot use a bureaucratic error as a substitute.
As for the limitations argument: The suit was timely filed, and nothing that happens
while a suit is pending creates a time bar to collection. 26 U.S.C. §6502(a).
A few contentions about discovery can be mopped up quickly. Johnson contends
that the district court should have ordered Cynthia Brown, the “technical services ad-
viser” who testified by deposition about the notice lifting the liens, to produce all of her
records. Yet Brown stated at the deposition that she had done just that, turning over all
of the records on which her testimony was based. Johnson’s appellate brief does not
explain what he thinks was withheld. Johnson also contends that he should have been
allowed to depose the IRS official whose mechanically reproduced signature appears on
the release. Brown testified that this document had been computer generated and that
the signing official thus lacked personal knowledge. Johnson has not called that state-
ment into question; taking a deposition of the signing official would have been nothing
but harassment. Johnson’s further contentions—such as that the Village of Elwood, Illi-
nois, is late in paying for work on a federally funded project—have no bearing on the
controversy and need not be discussed.
AFFIRMED