Hardegger v. Clark, 2017 CO 96

Hardegger and the Clarks were co-owners of C2H2, Inc.; C2H2 failed to remit payroll (withholding) taxes from 2007 through early 2009.
The IRS recorded a lien in November 2009; a special master wound down C2H2 and did not pay the delinquent payroll taxes.
The Clarks filed a joint Chapter 7 bankruptcy petition in October 2010 and received a discharge in May 2011; Hardegger received notice but did not file a proof of claim.
The IRS later determined Hardegger and Cheryl Clark were “responsible persons” and assessed trust fund recovery penalties; Hardegger paid the full penalty in December 2014.
Hardegger sued the Clarks under 26 U.S.C. § 6672(d) for contribution; the district court awarded contribution to Hardegger, but the court of appeals reversed, holding the contribution claim was a pre-petition claim discharged in the Clarks’ bankruptcy.
The Colorado Supreme Court granted certiorari to decide when a § 6672(d) contribution right becomes a "claim" under the Bankruptcy Code and affirmed the court of appeals.

Issue	Plaintiff's Argument (Hardegger)	Defendant's Argument (Clarks)	Held
When does a § 6672(d) contribution claim arise for bankruptcy purposes?	Claim arises when contribution cause of action accrues—i.e., when Hardegger paid the penalty in 2014.	Claim arises when the debtor’s conduct creating liability occurred—i.e., when C2H2 failed to remit taxes (2007–2009).	Court applies the conduct test and holds the claim arose when the withholding taxes were not remitted (pre-petition).
Was Hardegger’s contribution claim discharged in the Clarks’ Chapter 7 bankruptcy?	Even if the claim arose pre-petition, she could pursue nondischargeability or other relief; district court found claim accrued post-petition.	The claim was a pre-petition contingent claim and thus subject to discharge; Clarks raised discharge below and on appeal.	Court holds the contribution claim was a pre-petition claim and was discharged; Hardegger forfeited any nondischargeability argument by not raising it below.

Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir. 1988) (explaining broad scope of "claim" under Bankruptcy Code).
In re Parker, 313 F.3d 1267 (10th Cir. 2002) (conduct test favored: claim arises when debtor’s wrongful conduct occurred).
In re Grossman’s, 607 F.3d 114 (3d Cir. 2010) (rejecting accrual test and discussing contingent claims).
Quattrone Accountants, Inc. v. IRS, 895 F.2d 921 (3d Cir. 1990) (describing § 6672 joint-and-several liability for responsible persons).
Saint Catherine Hosp. of Ind., LLC v. Ind. Family & Soc. Servs. Admin., 800 F.3d 312 (7th Cir. 2015) (favoring earliest-point determination for contingent claims in bankruptcy).