Robert Gessert v. United States , 703 F.3d 1028 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3380
R OBERT J. G ESSERT and T HE G ESSERT G ROUP,
Plaintiffs-Appellants,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06-C-448—Lynn Adelman, Judge.
A RGUED D ECEMBER 6, 2012—D ECIDED JANUARY 3, 2013
Before E ASTERBROOK, Chief Judge, and F LAUM, and
R OVNER, Circuit Judges.
F LAUM, Circuit Judge. The Gessert Group (“the Group”),
a pharmaceutical consulting group, obstinately refused
to pay its taxes. By 2005, it accumulated over $1 million
in unpaid liabilities. Revenue Officer Lillie Johnson pur-
sued collection efforts on behalf of the United States.
She levied two of the Group’s accounts and also
sought to recover the taxes withheld from the Group’s
2 No. 09-3380
employees—so-called trust fund taxes—from Robert
Gessert personally. Gessert was the Group’s creator, sole
shareholder, and CEO, and presumably behind the
Group’s refusal to pay. The Group and Gessert filed suit
against the United States seeking refunds and abate-
ments. It also pursued damages under I.R.C. § 7433,
which permits recovery for improper collection efforts.
The plaintiffs principally allege that the Group directed
Johnson to apply a handful of voluntary payments
towards its trust fund liability, but Johnson applied the
payments to the non-trust fund portion. This increased
Gessert’s personal liability. The parties also allege that
Johnson violated a series of Internal Revenue Code
(“Code”) and Treasury provisions and that she
improperly levied the Group’s accounts.
However, Gessert lacks standing under I.R.C. § 7433
because Johnson sought collection from the Group, not
Gessert. Further, the Group failed to allege economic
harm, which is also prerequisite to standing under I.R.C.
§ 7433. With respect to the refund claim, the district court
properly concluded the Group filed its administrative
claim too late. Finally, Gessert’s refund-and-abatement
claim fails because the Group did not provide specific
written direction to the IRS effectuating a directed pay-
ment. We therefore affirm the district court’s decision.
I. Background
A. Statutory Background
The Internal Revenue Code requires employers to with-
hold employees’ income tax and Social Security contribu-
No. 09-3380 3
tion from each employee’s paycheck. I.R.C. §§ 3402(a),
3102(a). Employers hold these taxes in trust for the federal
government, I.R.C. § 7501(a), and they are commonly called
“trust fund taxes.” Individuals responsible for collecting
trust fund taxes that willfully fail to collect, pay over, or
account for trust fund taxes can be assessed a “trust fund
recovery penalty” equal to the tax evaded. I.R.C. § 6672(a).
The trust fund recovery penalty liability is separate and
distinct from the firm’s liability—i.e., the responsible
person cannot recover from the firm and the IRS can
recover from the person individually. Kuznitsky v. United
States, 17 F.3d 1029, 1032 (7th Cir. 1994) (citing cases).
B. Factual Background
Robert Gessert created the Group in 1989 and served as
its sole shareholder, president, and CEO until it ceased
operations in 2004. Vytautus Jonynas served as CFO.
From the third quarter of 2000 through 2004, the com-
pany did not make timely employment tax deposits
and payments, failing to pay nearly all of its $1.4 million
tax liability. It also failed to file its employment tax
returns between January 2002 and April 2004 (although
the returns were eventually filed in 2004 and 2005).
The IRS assigned Revenue Officer Johnson to collect
the Group’s taxes. Johnson initially tried to satisfy the
Group’s liabilities through voluntary payments and an
installment agreement, but this proved futile when the
Group defaulted on the installment agreement. The Group
did make some voluntary payments. It made four elec-
tronic payments totaling $66,000 followed by two checks
4 No. 09-3380
totaling $100,000. These payments were not accompanied
by written instructions directing the IRS to apply these
payments to a specific obligation. Thus, the IRS applied
them to the Group’s non-trust fund obligations consistent
with IRS procedures. These payments fell considerably
short of meeting the Group’s liability.
The Group also alleges that it voluntarily issued a
$75,000 check a few days after the IRS levied its bank
account and collected $114,000. The IRS’s records
indicate the check was received three months after
the levy. When the IRS submitted the check, it was dis-
honored. The Group alleges that it received a $1,500
overdraft fee as a result.
In addition to the bank account, the IRS also issued
levies to DePuy Orthopedics, Inc. (“DePuy”) and Pfizer,
Inc., both of which owed the Group payments for ser-
vices. The two companies respectively remitted
$121,292.50 and $96,744 to the IRS. Because these pay-
ments were involuntary, the IRS applied them to the non-
trust fund portion of the Group’s liabilities. With pay-
ments still outstanding, the IRS assessed trust fund re-
covery penalties against Gessert personally. These penal-
ties totaled $696,832.57—the unpaid portion of the
Group’s trust fund liabilities. At the commencement of
this suit, Gessert still owed $350,000 plus penalties and
additions, while the Group owed over $1 million on
its employment taxes.
No. 09-3380 5
C. Procedural Background
In 2005, Gessert and the Group filed administrative
claims for damages. After the IRS did not respond, both
Gessert and the Group filed separate claims under two
separate statutes.
1. Motion to Dismiss—Section 7433 Claims
First, Gessert and the Group sought damages under
I.R.C. § 7433 for purportedly improper collection actions
taken by the government. Both parties alleged that
Johnson refused to follow Jonynas’s verbal instruction
and misapplied voluntary payments to the non-trust fund
portion of the Group’s liability. As a result, Gessert’s
personal liability under the trust fund recovery penalty
remained the same after the payments. They also alleged
that the IRS wrongfully levied funds from DePuy and
Pfizer. They argued that the money owed by DePuy and
Pfizer to the Group was not due, meaning the IRS lacked
authority to levy the accounts. Finally, the parties
alleged general “misconduct” surrounding the collection
process and various violations of Code provisions and
a Treasury Regulation.
The district court dismissed all of Gessert’s claims under
this section. It held that the statute only authorizes suit
by the taxpayer who is subject to the improper collection
activities. Because the taxpayer was the corporation
instead of Gessert, he lacked standing. The IRS had
never taken any collection activities against Gessert
personally, even though he owed a substantial sum
under the trust fund recovery penalty.
6 No. 09-3380
The district court also dismissed the Group’s damages
claims regarding its allegation that the Government
applied the Group’s voluntary payments to the wrong
obligation. The Group could not meet section 7433’s
requirement that the wrongful activity result in actual
economic damages because the application lowered the
Group’s tax liability by the same amount either way.
The Group moved for reconsideration, arguing that the
$1,500 insufficient funds charge was pecuniary harm.
The district court dismissed this motion because the
fee occurred beyond the two-year statute of limita-
tions period.
2. Summary Judgment—Remaining Section 7433
Claims and Refund Claims
After the motion to dismiss, the only remaining
claims were that the Government lacked authorization
to levy the DePuy and Pfizer accounts and that Johnson
had violated the Code and Regulation. The district
court entered summary judgment in the Government’s
favor on these claims. It found the Group could not
challenge the levies under section 7433. Instead, section
7426 was the mechanism Congress established to chal-
lenge improper levies and that section limits standing
to the subject of the levy, not the taxpayer. Notwith-
standing, it held that the levies were proper because
no reasonable factfinder would conclude that they were
advances instead of payment due to the Group. It also
concluded the arguments that Johnson violated the
various Code provisions were “baseless.” The district
No. 09-3380 7
court found the refund claims time barred under I.R.C.
§§ 6511, 7422. It then entered judgment against Gessert
for $445,041.87 and the Group for $1,343,621.67.
II. Discussion
We review both motions to dismiss and entries of
summary judgment de novo. For motions to dismiss we
accept all well-pled facts as true and construe all
inferences in favor of the plaintiff. Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008). In reviewing the
motions for summary judgment, we grant the motion
if, taking the evidence in the light most favorable to
Gessert, there is no issue of material fact and the
United States is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Ault v. Speicher, 634 F.3d 942, 945 (7th
Cir. 2011).
A. Section 7433 Claims
1. Gessert’s Claims
As sovereign, the Government may not be sued without
its consent. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994);
United States v. Sherwood, 312 U.S. 584, 586 (1941). Waivers
are not implied and are construed narrowly against the
plaintiff. Soriano v. United States, 352 U.S. 270, 276 (1957)
(“[L]imitations and conditions upon which the Govern-
ment consents to be sued must be strictly observed
and exceptions thereto are not to be implied.”). Section
7433 of the Internal Revenue Code is such a waiver. It
8 No. 09-3380
provides “[i]f, in connection with any collection of
Federal tax with respect to a taxpayer, any [employee] of
the Internal Revenue Service . . . disregards [the Code] or
any [IRS] regulation . . ., such taxpayer may bring a civil
action for damages against the United States.” I.R.C.
§ 7433. In other words, plaintiffs may sue IRS employees
that subjected them to improper collection efforts. How-
ever, the plain language limits relief to “such taxpayer[s]”
that were subjected to the wrongful activity; the Code
does not permit recovery by third parties harmed by
the activity. See Allied/Royal Parking L.P. v. United States,
166 F.3d 1000, 1003 (9th Cir. 1999) (two limited partners
could not sue for alleged wrongful acts during collection
from partnership).
Gessert only alleges that the IRS and Johnson engaged
in wrongful activity in its collection efforts towards the
Group. The record does not reflect that the IRS had ever
initiated collection efforts towards Gessert personally.
As such, Gessert is not “such [a] taxpayer” under
section 7433, and the Government has not consented to
suit by him. Therefore, the district court properly dis-
missed all of his claims under section 7433.
Gessert argues that because he was assessed trust fund
recovery penalties during the time Johnson engaged in
the allegedly improper collections, he was a “taxpayer”
under the statute. He further points out that “both [he]
and the Group were directly impacted by Johnson’s
failure to honor the designation of payment.” Even
though Gessert was a taxpayer under the Code, see I.R.C.
§ 7701(a)(14) (“The term ‘taxpayer’ means any persons
No. 09-3380 9
subject to any internal revenue tax.”), he was not
“such taxpayer” under section 7433. “Such” limits the
broader term “taxpayer” to include only those taxpayers
subjected to the improper collection activities. Because
the IRS never sought to collect Gessert’s recovery penalty,
he is not “such [a] taxpayer.” Gessert’s reading would
transform the statute from “such taxpayer” to “any tax-
payer affected by the allegedly improper conduct.” The
statute does not read as broadly as Gessert suggests.
Thus, we affirm the district court’s dismissal of Gessert’s
section 7433 claims.
2. The Group’s Claim Regarding Misapplication
of the Voluntary Payments
The Group appeals the district court’s dismissal of its
section 7433 claim that Johnson applied the voluntary
payments to the wrong obligation. Section 7433 permits
civil damages for certain unauthorized collection ac-
tions, but limits damages to the “sum of—actual, direct
economic damages sustained by the plaintiff as a proxi-
mate result of the reckless or intentional or negligent
actions of the officer or employee, and the costs of the
action.” I.R.C. § 7433(b)(1)-(2). The district court dis-
missed this claim because the group did not suffer any
economic harm—it owed both non-trust fund and
trust fund taxes, so the application to either liability
lowered its overall liability by the same amount.
We agree with the district court—the Group must
allege actual economic damage to state a claim under
section 7433. Otherwise, moneyed plaintiffs could
10 No. 09-3380
frustrate collection efforts by filing suits for claims
where they suffered no harm. This result would be incon-
sistent with Congress’s limited remedy and the principle
requiring us to strictly construe waivers of sovereign
immunity against the plaintiff. See Soriano, 352 U.S. at
276. Further, the statute does not permit nominal
damages, see I.R.C. § 7433(b)(1)-(2), and the declaratory
judgment act expressly prohibits declaratory judgments
in tax cases. 28 U.S.C. § 2201.
The Group relies exclusively on In re Kaplan to
overcome this statutory interpretation. 104 F.3d 589 (3d
Cir. 1997). However, Kaplan concerned the power of
bankruptcy courts to compel the IRS to allocate tax pay-
ments of a corporation not before the bankruptcy peti-
tion. Id. Kaplan had nothing to do with section 7433, under
which the Group currently proceeds. The reasoning of the
Third Circuit therefore does not require a contrary finding.
We affirm the district court’s dismissal of the Group’s
section 7433 claim that Johnson applied the voluntary
payments to the wrong fund.
3. The Group’s Claims Regarding the Levies
The Group next claims that the levies against Pfizer and
DuPuy were improper. The IRS may levy a delinquent
taxpayer’s property. I.R.C. § 6331. But the IRS may only
levy “property possessed” by the taxpayer or existing
obligations, which exist “when the liability of the obligor
is fixed and determinable although the right to receive
payment thereof may be deferred until a later date.” I.R.C.
§ 6331(b); Treas. Reg. § 301.6331-1(a)(1). The Group
No. 09-3380 11
argues that these obligations were advances, and therefore
that the Group’s right to them was not “fixed and determi-
nable.” See Treas. Reg. § 301.6331-1(a)(1). Accordingly,
the Group claims that the accounts could not be levied
by the IRS.
However, these arguments are unavailing because
they too do not allege any economic harm and therefore
the group lacks standing. Under the Group’s theory, the
DePuy and Pfizer accounts were not yet owed to it. Ac-
cordingly, Depuy and Pfizer—not the Group—would
have suffered economic harm as a result of the allegedly
improper levy. In fact, assuming arguendo that the levied-
upon funds still belonged to DePuy and Pfizer, the
Group would have realized a windfall in having Depuy
and Pfizer’s property applied to its own liabilities. See
Allied/Royal Parking, 166 F.3d at 1004-05; Maisano v.
Welcher, 940 F.2d 499, 501 (9th Cir. 1991) (“If the [property]
belongs to the [third party], the [taxpayers] have no
standing to sue and their case must be dismissed.”).
In addition, Congress provides a remedy for third
parties to collect wrongfully levied property but
expressly forbids the taxpayer against whom the IRS is
seeking to collect the taxes from doing so. I.R.C. § 7426(a)
permits “any person (other than the person against
whom is assessed the tax out of which such levy
arose)” whose property has been levied or sold pursuant
to a levy, to sue to recover the property. The Group is
“the person [that was] assessed the tax out of which
such levy arose.” Thus, the government did not waive
sovereign immunity to challenge the levies.
12 No. 09-3380
4. The Group’s remaining Section 7433 claims
concerning Johnson’s behavior
Next, the Group argues that Johnson violated various
provisions of the Code and a regulation, permitting
recovery under section 7433. Again, the Group offers no
economic damages, so it has no standing to sue. Regard-
less, the claims lack merit.
i. Section 6304(b)
Section 6304(b) states an officer may not “harass, op-
press, or abuse any person in connection with the collec-
tion of any unpaid tax” including “the use of obscene or
profane language.” I.R.C. § 6304(b), (b)(2). The Group cites
a number of minor incidents which it argues violate
the statute. For example, it argues that Johnson did not
explain to Jonynas what a levy was, that she “threatened
to take action” when Jonynas tried to interfere with
IRS’s levy against the Pfizer funds, and became upset
when Jonynas discovered he could designate pay-
ments. Most of the allegations take the form of the Group
labeling Johnson’s behavior as “abrupt,” “threatening,”
“erratic,” and “aggressive.” These conclusory allegations
devoid of factual support do not preclude summary
judgment. See Ozlowski v. Henderson, 237 F.3d 837, 840
(7th Cir. 2001). Indeed, in light of the Group’s refusal to
pay over $1 million it owed the government, including
over $300,000 it withheld from its employees but did not
turn over to the government, it is unremarkable that
Johnson persistently tried to assess a trust fund
recovery penalty against Jonynas for his role in the
No. 09-3380 13
debacle. Further, to the extent that Johnson was wrong
in doing so, the IRS Appeals Office ultimately removed
the penalty against Jonynas. Thus, Jonynas’s rights
were vindicated.
Finally, the Group argues Johnson “repeatedly” called
DePuy about the levied funds. However, its record cita-
tions cite just a handful of unremarkable calls to both
Pfizer and DePuy inquiring about the levies. Indeed, the
testimony of DePuy and Pfizer employees directly con-
flicted with these allegations, describing Johnson as
professional. This claim does not justify reversal.
ii. Section 7206(4)
Next, the Group argues Johnson violated section 7206(4),
which makes it a felony for any individual that “[r]emoves,
deposits, or conceals . . . with intent to evade or defeat the
assessment or collection of any tax.” This provision is
directed at taxpayers that try to defeat tax claims. See,
e.g., United States v. McClain, 934 F.2d 822, 824 (7th Cir.
1991); United States v. Hook, 781 F.2d 1166, 1170 (6th
Cir. 1986). It is not a rule governing the conduct of IRS
employees and therefore cannot form the basis of
recovery under section 7433. Moreover, any remedy for
damages (e.g., the $1,500 fee assessed for insufficient
funds) was barred by the statute of limitations.
iii. Section 7214
Section 7214 penalizes officers or employees that are
“guilty of extortion or willful oppression” or “knowingly
14 No. 09-3380
demand[] . . . greater sums than are authorized by law.”
I.R.C. § 7214(a)(1)-(2). The Group principally argues
that Johnson tried to “strong arm” a sum greater than
what she could legally levy from DePuy. In support, the
Group cites Depuy employee Monte Moore’s testimony
that “after [Johnson] received the $121,000 check [for the
levy], she called [Moore], acknowledged having received
the check, and then asked about something along the lines
of, ‘Now, when will I get the rest of the money.’ ” The
Group had a $300,000 contract with DePuy of which
approximately $121,000 was due. As noted above, the IRS
can only levy money due. Moore testified that when
Johnson called after receiving the first $121,000, he “told
her that [he] wasn’t sure exactly what she was referring
to” and explained that the “$200,000 wasn’t due and
payable” under the terms of the levy. The Group does
not assert that Johnson pursued this $200,000 after
learning it was not due. Thus, this conduct does not
meet section 7214’s requirement that the revenue
officer “knowingly” demand or extort the property.
The Group makes a few more accusations. It argues
Johnson violated the section by threatening to seize
Gessert’s house. However, Gessert owes the IRS over
$400,000 that he refuses to pay. The Code permits
Johnson to seize the house. I.R.C. §§ 6331, 7403. The
Group next asserts Johnson “threatened” Jonynas when
he faxed a Pfizer employee during the levy process. How-
ever, Jonynas does not explain how Johnson threatened
him, what was said, or whether Johnson could legally
take the threatened action. These accusations do not
merit reversal.
No. 09-3380 15
iv. Treas. Reg. § 801.3
Finally, the Group asserts that Johnson violated
Treasury Regulation § 801.3 entitled “[M]easuring em-
ployee performance.” Section 801.3(b) instructs evalu-
ators to consider “whether they provided fair and equita-
ble treatment to taxpayers.” The district court properly
concluded that Johnson could not violate this regulation
because it only provided a method for evaluating her
performance.
Accordingly, we affirm the entry of summary judgment
for the Group’s remaining section 7433 claims.
B. Refund and Abatement Claims
1. The Group’s Claims
The district court properly dismissed the Group’s
refund claims. The Group apparently does not challenge
this conclusion on appeal. Before a plaintiff can bring
suit in district court, it must file “a claim for refund or
credit . . . with the [IRS].” I.R.C. § 7422(a). There are time
limits on filing an administrative claim, however. Any
“[c]laim for credit or refund of an overpayment . . . shall
be filed by the taxpayer within 3 years from the time
the return was filed or 2 years from the time the tax
was paid, whichever of such periods expires later.” I.R.C.
§ 6511(a). In addition to the administrative remedies
requirement, a refund suit is limited to overpayment,
I.R.C. § 6402(a), which is payment in excess of what is
due. Jones v. Liberty Glass Co., 332 U.S. 524, 531 (1947).
16 No. 09-3380
The Group’s refund claims are time-barred. The
Group made voluntary payments in February, May, and
June 2002, which were applied to outstanding taxes for
2000, 2001, and 2002. The Group filed its administrative
refund claim on July 1, 2005—over three years after the
returns and two years after payment. Thus, the Group’s
claims do not meet the requirements of the statute. More-
over, refund claims are limited to overpayment, and
the Group does not allege it paid more than it owed. The
Group’s situation is analogous to Schon v. United States,
where we held that a company’s assertion that the IRS
should have applied its payments to another liability
does not constitute overpayment when it admits that it
still owes taxes to the IRS. 759 F.2d 614, 617 (7th Cir.
1985). Further, the Group appears to seek a declaratory
judgment that the IRS should have allocated the taxes
to the trust fund portion. However, the Declaratory
Judgment Act bars relief “with respect to federal taxes.”
28 U.S.C. 2201; Schon, 759 F.2d at 617-18. We affirm
the district court’s dismissal of these claims.
2. Gessert’s Claims
Finally, Gessert argues his trust fund recovery penalty
should be lowered under I.R.C. § 7422. To this end, he
claims that the Group and Johnson orally agreed that
voluntary payments would be allocated to the Group’s
trust fund liabilities. The government counters that the
IRS honors only written directions to apply funds to a
specific liability. Accordingly, the IRS contends it was
free to apply the funds in its own best interest. The IRS
No. 09-3380 17
generally prefers applying payments to the non-trust
fund liability because it can recover the trust fund
portion from another person. And, “[o]nce the corpora-
tion is out of business, the United States can kiss
goodbye any non-trust fund taxes owed [to] it but not
paid.” See United States v. Schroder, 900 F.2d 1144, 1146 n.1
(7th Cir. 1990).
As previously mentioned, 28 U.S.C. § 1346 authorizes
“[a]ny civil action against the United States for the re-
covery of any internal-revenue tax alleged to have
been erroneously or illegally assessed or collected, or any
penalty claimed to have been collected without authority
or any sum alleged to have been excessive or in any
manner wrongfully collected under the internal-
revenue laws.” Gessert argues that his tax fund recovery
penalty is erroneously high because the IRS should
have credited the Group’s voluntary payments to its
trust fund liability thereby lowering Gessert’s penalty
liability.
Unlike the Group’s claims, the parties agree that
Gessert’s claim is timely, although the district court ruled
otherwise. Generally, a party must pay his entire tax
liability before bringing a viable suit. Flora v. United
States, 357 U.S. 63 (1958). Thus, in the Group’s case, it
must pay its entire tax liability before it seeks a refund
for overpayment. However, divisible taxes are treated
differently. Examples of divisible taxes include excise
taxes, where the tax is assessed “per transaction” or “per
head.” Trust fund penalty taxes are treated as “per em-
ployee”—i.e., each employee’s tax withheld but not paid
18 No. 09-3380
over constitutes a separate transaction, making it divisi-
ble. A taxpayer satisfies the administrative prerequi-
sites for divisible taxes by paying the tax for a
single transaction in each applicable period. M ICHAEL
S ALTZMAN, IRS P RACTICE AND P ROCEDURE § 11.06 (2d ed.
rev. 2002). Taxpayers can challenge trust fund penalty
liabilities by paying the tax for one employee for each
applicable period and filing an administrative claim
within two years of payment or three of the return.
Gessert satisfied these requirements by paying $100 for
each period he was assessed trust fund penalty liability.
“IRS policy permits taxpayers who ‘voluntarily’ submit
payments to the IRS to designate the tax liability to
which the payment will apply.” United States v. Energy
Resources Co., Inc., 495 U.S. 545, 548 (1990) (citation omit-
ted). Over time, the IRS has modified the scope of this
right. At one time, the IRS required only “directions” from
taxpayers in order to effectuate a directed payment. See
Rev. Rul. 73-305, 1973-2 C.B. 43. However, the IRS sub-
sequently curtailed the scope of the right that it had
initially authorized, requiring that taxpayers provide
“specific written direction as to the applications of the
payment.” Rev. Proc. 2002-26 § 3.01 (emphasis added).
Absent written directions, the “Service will apply the
payment to periods in the order of priority that the
Service determines will serve [the Service’s] best interest.”
Id. at § 3.02.
Thus, to the extent that at one time the IRS permitted
oral directions to effectuate a directed payment, under
revenue procedure 2002-26 (applicable here), a taxpayer
No. 09-3380 19
must specify in writing the payment’s designation. See
Martin v. Commissioner, 38 F. App’x 980, 984 (4th Cir. 2002)
(“[U]nless a taxpayer provides specific written instruc-
tions for the application of a voluntary payment, the IRS
may apply the payment as it wishes.”). Here, no specific
written direction was provided to the IRS regarding
the designation of the Group’s voluntary payments.
Johnson was therefore entitled to apply the payments
in the best interest of the IRS. Her application of the
voluntary payments to the non-trust fund liability
was not in error and does not merit reversal.
III. Conclusion
For the foregoing reasons, we A FFIRM the decision of
the district court.
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