In re Serrano
OPINION AND ORDER
This case is before the court upon the Debtor’s Objection to Claim Number (12) by Creditor Treasury Department (Hacienda de P.R.) and Notice of Opportunity for a Hearing (the “Objection”) (Docket No. 39) and the reply (Docket No. 63) filed by the Treasury Department of the Commonwealth of Puerto Rico (thereafter referred to as “Treasury”). The Debtor filed a Sur-Reply to Puerto Rico Treasury
For the reasons stated below, the Debt- or’s Motion for Summary Judgment on Objection to Claim #12’s is denied and Treasury’s cross motion for summary judgment is granted in part and denied in part.
Jurisdiction
The court has jurisdiction pursuant to 28 U.S.C. §§ 157(a) and 1334(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B).
Procedural Background
The Debtor filed a Chapter 13 bankruptcy petition on September 19, 2013. In her Statement of Financial Affairs (“SOFA”) the Debtor disclosed in line item # 18 that she had a business named Jet Center from the years 1999-2010 and the nature of such business was charter sales (Docket No. 4, pg. 48). On February 20, 2014, the Debtor’s Chapter 13 plan was confirmed (Docket No. 31). On March 18, 2014, the Treasury filed proof of claim # 12-1 in the amount of $62,633.38 of which $42,094,70 was listed as a priority claim under 11 U.S.C. § 507(a)(8), and the remaining $20,538.68 was listed as a general unsecured claim. These taxes are owed by Jet Center, Inc.
On May 28, 2014, the Debtor filed her Objection to Treasury’s proof of claim # 12 arguing that the Debtor is not liable for the tax debts of Jet Center, Inc. and that the same has been inactive since April 16, 2014 (Docket No. 39). On June 2, 2014, the Debtor filed an Informative Motion by which she informed that the amendment to the SOFA consisted in changing the date of cancellation of Jet Center, Inc. to April 16, 2014 instead of the year 2010 (Docket No. 41). On June 25, 2014, Treasury filed a motion (Docket No. 48) requesting an extension of thirty (30) days to reply to Debtor’s objection to claim #12 and the same was granted on June 26, 2014 (Docket No. 49).
On August 13, 2014, Treasury filed its Reply to Debtor’s Objection to the Department of Treasury’s POC No. 12 arguing that pursuant to 11 U.S.C. § 507(a)(8)(C) and section 6080.01 of the Puerto Rico Internal Revenue Code, 13 L.P.R.A. § 8180, the Debtor as the owner of Jet Center, Inc. has the contributive obligation to pay all the tax debts of said corporation and is personally liable for the same (Docket No. 63). On August 18, 2014, the
On September 24, 2014, the court docketed an Order and Notice Preliminary Pretrial Conference ordering the Debtor and Treasury to file a joint pre-trial report seven (7) days prior to the hearing date which was scheduled for 01/14/2015 (Docket No. 73). On January 9, 2015, the Debt- or filed a Motion Requesting Pretrial Hearing be Continued or Converted to Status Conference (Docket No. 84) and the same was granted on January 14, 2015. The pretrial hearing was continued and rescheduled for May 6, 2015 (Docket No. 85). On February 19, 2015, the Debtor filed an Informative Motion informing the court that she had served Treasury through its legal counsel with a first of interrogatories, request for admissions and request for production of documents (Docket No. 89). On March 26, 2015, Treasury filed a Motion Requesting Extension of Time of thirty (30) days to answer Debtor’s first set of interrogatories, request for admissions and request for production of documents (Docket No. 99). Treasury’s motion requesting an extension of time was granted on March 27, 2015 (Docket No. 100). On May 4, 2015, the Debtor filed a Motion for Continuance of Pretrial Hearing (Docket No. 105) and the same was granted on said date (Docket No. 106). The pretrial hearing was continued to September 2,2015.
On September 1, 2015, the Debtor filed a Motion for Summary Judgment on Objection to Claim # 12 filed at Docket Entry # 39 by which she maintains that: (i) the Puerto Rico Internal Revenue Code of 1994 is the controlling law in this case, given that the alleged tax claims were incurred during the years 2000 through 2010, prior to the enactment of the Puerto Rico Internal Revenue Code of 2011; (ii) section 6180 of the Puerto Rico Internal Revenue Code of 1994, 31 L.P.R.A. § 8180 would be applicable. This section is very similar to section 6080.01 of the Puerto Rico Internal Revenue Code of 2011, 13 L.P.R.A. § 33331. However, this section does not include the term personal liability. “What the statute established is that when a person who withholds taxes for another, those taxes are deemed to be in a special trust fund for the Commonwealth of Puerto Rico. The statute does not provide any consequences for failure to collect or withhold taxes for another person. The statute simply establishes that taxes collected for another person belong to a trust fund for the Commonwealth of Puerto Rico, provides for the manner in which the
The first issue before the court is whether Treasury’s tax claim for taxes which were withheld by Jet Center, Inc. are trust fund taxes pursuant to 11 U.S.C. § 507(a)(8)(C). If Treasury’s tax claim is for trust fund taxes, the second issue is whether the Debtor as President of Jet Center, Inc. is personally liable pursuant to the Puerto Rico Internal Revenue Code of 1994.
The parties agree as to the following uncontested material facts (Docket Nos. 126 & 133):
Material Uncontested Facts
1. The Debtor was the President of Jet Center, Inc., a corporation duly organized under the laws of the Commonwealth of Puerto Rico (Docket No. 126, Exhibit 1).
2. The Treasury filed proof of claim # 12-1 asserting that Debtor was liable for tax debts allegedly incurred by Jet Center, Inc. for the years 2000, 2001, 2002, 2003, 2004, 2005 and 2010.
3. Proof of claim # 12-1 discloses that the alleged tax debts incurred by Jet Center, Inc. for years 2000, 2001, 2002, 2003, 2004, 2005 and 2010 consist of a priority portion in the amount of $42,094.70 and an unsecured portion in the amount of $20,538.68.
4. Pursuant to proof of claim # 12-1, the tax debts allegedly incurred by Jet Center, Inc. for the years 2000, 2001, 2002, 2003, 2004, 2005 and 2010 consist of corporate taxes, employer taxes, withholding taxes and insufficient fund checks.
Applicable Law and Analysis
Standard for Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure, is applicable to this proceeding by Rule 7056 of the Federal Rules of Bankruptcy Procedure. Summary judgment should be entered “if the pleadings, depositions, answers to interrogatories,
“The summary-judgment procedure authorized by Rule 56 is a method for promptly disposing of actions in which there is no genuine issue as to any material fact or in which only a question of law is involved.” Wright, Miller & Kane, Federal Practice and Procedure, 3d, Vol 10A, § 2712 at 198. “Rule 56 provides the means by which a party may pierce the allegations in the pleadings and obtain relief by introducing outside evidence showing that there are no fact issues that need to be tried.” Id. at 202-203. Summary judgment is not a substitute for a trial of disputed facts; the court may only determine whether there are issues to be tried, and it is improper if the existence of a material fact is uncertain. Id. at 205-206.
Summary judgment is warranted where, after adequate time for discovery and upon motion, a party fails to make a showing sufficient to establish the existence of an element essential to its case and upon which it carries the burden of proof at trial. Celotex Corp. v. Catrett,
For there to be a “genuine” issue, facts which are supported by substantial evidence must be in dispute, thereby requiring deference to the finder of fact. Furthermore, the disputed facts must be “material” or determinative of the outcome of the litigation. Hahn v. Sargent,
The moving party invariably bears both the initial as well as the ultimate burden in demonstrating its legal entitlement to summary judgment. Adickes v. Kress & Co.,
. The moving party cannot prevail if any essential element of its claim or defense requires trial. López,
The moving party has the burden to establish that it is entitled to summary judgment; no defense is required where an insufficient showing is made. López,
For the reasons explained below, this court denies the Debtor’s motion for summary judgment, and grants in part and denies in part Treasury’s cross motion for summary judgment.
Personal Liability for Trust Fund Tax Claims pursuant to 11 U.S.C. § 507(a)(8)(C)
Section 1322(a)(2) provides that a Chapter 13 plan, “shall provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title, unless the holder of a particular claim agrees to a different treatment of such claim.” 11 U.S.C. § 1322(a)(2). Section 507(a)(8) provides in pertinent part:
“[t]he following expenses and claims have priority in the following order:
(8) Eighth, allowed unsecured claims of governmental units, only to the extent that such claims are for—
(C) a tax required to be collected or withheld and for which the debtor is liable in whatever capacity.” 11 U.S.C. § 507(a)(8)(C).
The type of taxes referred to in 11 U.S.C. § 507(a)(8)(C) are “trust fund” taxes and the same are not dischargeable in bankruptcy irrespective of the age of the debt pursuant to 11 U.S.C. §§ 523(a)(1)(A)
In the instant case, the Treasury’s total claim consists of $62,633.38, of which $42,094.70 is the alleged priority portion pursuant to section 507(a)(8)(C), which consists of the principal and interests on withholding taxes and two (2) insufficient fund checks. The remainder portion of the claim is the general unsecured portion which amounts to $20,538.68 and consists of $8,489.29 in corporate taxes owed by Jet Center, Inc. for the year 2000 and $12,049.39 in penalties and surcharges (Claims Register, proof of claim #12-1). The Puerto Rico Internal Revenue Code of 1994 is the code that applies, given that the alleged taxes were incurred prior to the effective date of the Puerto Rico Internal Revenue Code of 2011. See 13 L.P.R.A. § 8008 (1994) and 13 L.P.R.A. § 30011 (2011).
Treasury’s alleged priority tax claim is for two (2) types of taxes; namely: (i) income taxes that an employer is required to deduct and withhold from the pay of his employees pursuant to section 1141 of the Puerto Rico - Internal Revenue Code of 1994, 13 L.P.R.A, § 8541; and (ii) the 7% withholding at source on payments made to another person for services rendered-pursuant to section 1143 of the Puerto Rico Internal Revenue Code of 1994, 13 L.P.R.A. 8543.
Section 1141 of the Puerto Rico Internal Revenue Code of 1994 pertains to income tax withholding at the source in the case of wages. Section 1141(a)(4) defines the term “employer” as: “... the person for whom an individual performs or has performed any service, of whatever nature, as the employee of such person, except that: (A) If the person for whom the individual performs or has performed the services does not have control of the payment of the wages for such services, the term ‘employer,’ except for purposes of clause (1), means the .person having control of the payment of such wages, and (B) in the case of a. person paying wages on behalf of a nonresident individual, foreign partnership, or -foreign corporation not engaged in trade or business within Puerto Rico, the term ‘employer,’ except for purposes .of clause (1) of this subsection, means such person.”- 13 L.P.R.A. § 8541(a)(4)(A), (B). Moreover, section 1141(b)
The other priority tax claim Treasury alleged is based on the 7% withholding at source on payments made to another person for services rendered pursuant to section 1143 of the Puerto Rico Internal Revenue Code of 1994, 13 L.P.R A. § 8543
As to the first issue, based upon the referenced sections of the Puerto Rico Internal Revenue Code of 1994; both of these type of income taxes satisfy the five factors to be considered trust fund taxes pursuant to 11 U.S.C. § 507(a)(8)(C). However, the corporate income taxes and the insufficient fund checks (for which Treasury fails to specify the type of tax that was paid with these checks) are not trust fund taxes. The remaining issue is whether the Debtor, as President of Jet Center, Inc., a cancelled
Part II of the Internal Revenue Code of Puerto Rico of 1994 is titled, “Administrative Provisions, Procedures, Interests, Penalties, and Additions to Taxes.” Section 6180, titled, “Liability for taxes collected” provides:
“Anytime any person is required to collect or withhold from any other person any taxes imposed by this Code and to remit said tax to the Commonwealth of Puerto Rico, the amount of the taxes thus collected or withheld shall be deemed to be a special trust fund for the Commonwealth of Puerto Rico. The amount of said fund shall be assessed, collected, and paid in the same manner and be subject to the same provisions and limitations, including penalties, applicable that are applicable with regards to the taxes that gave origin to such fund, except that the provisions of sec. 8025 of this Part regarding the prescriptive term for assessment shall not apply and the Secretary may assess such amount at any time.” 13 L.P.R.A. § 8180.
The term person in Part II is defined in section 6057 as: “[f]or purposes of this Subtitle, and except when otherwise provided, the term ‘person’ means and includes any individual, partnership, trust, corporation, association, or any official, agent, or employee of a corporation or a partner, agent, or employee- of a partnership or trust on account of which such individual, official, agent, employee, partner or trustee is required to engage in the act which constitutes a violation. Said term also includes any official, agent or employee of a department, agency, instrumentality, public corporation, or municipality of the Government of Puerto Rico.” 13 L.P.R.A. § 8062.
The court finds that section 6057 of the Puerto Rico Internal Revenue Code of 1994 makes clear that the term “person” as employed in section 6180, includes any individual, officer, or employee of a corporation which is required to collect or withhold, and remit (pay over taxes) to Treasury taxes held in trust and is responsible for payment of these trust fund taxes to the Treasury. The amount of the trust fund taxes will be assessed, collected, and
Moreover, section 6180 of the Puerto Rico Internal Revenue Code of 1994, 13 L.P.R.A. § 8180, in particular, references the applicable provisions that gave origin to the trust fund taxes. The specific provisions regarding the employees’ withholding of income taxes and adjudicating responsibility to a person, and not necessarily to a corporation are sections 1141(1) and 6050 of the Puerto Rico Internal Revenue Code of 1994, 13 L.P.R.A. §§ 8541(1), 8055 and the pertinent Regulations for Section 1141 which were approved on December 22, 2000. Section 1141(1) provides that: “the employer shall be liable to the Secretary for the payment of the tax required to be deducted and withheld under this section and shall not be liable to any person for the amount of any such payment.” 13 L.P.R.A. § 8541(1). Section 1141(a)(4) defines the term “employer” as: “.., the person for whom an individual performs or has performed any service, of whatever nature, as the employee of such person, except that: (A) If the person for whom the individual performs or has performed the services does not have control of the payment of the wages for such services, the term ‘employer,’ except for purposes of clause (1), means the person having control of the payment of such wages.”13 L.P.R.A. § 8541(a)(4)(A). Article 1141(1)-1
The particular provisions regarding the 7% withholding at source on payments made to another person for services rendered, which adjudicate responsibility to a person are sections 1143(c), (f) and 6050 of the Puerto Rico Internal Revenue Code of 1994, 13 L.P.R.A. §§ 8543(c), (f), 8055 and the pertinent Regulations for Sections 1142, 1143 and 1234 of Subtitle A and Section 6127 of Subtitle F which were approved on May 6, 1997. Section 1143(c) provides that: “.,. any person required to deduct and withhold any taxes under any of the provisions of this section shall be liable to the Secretary for the payment of such taxes and shall not be liable to any other person for the amount of any such payments.” 13 L.P.R.A. § 8543(c). Article 1143(e)-l
Thus, in the instant case, the Debtor as President
Section 6080.02 provides:
“(a) Penalty.—Any person liable, as described in subsection (b) of this section, shall be personally subject, in addition to any other penalty established under this Code, to a penalty equal to the full amount of the taxes evaded, not collected, not withheld, not deposited, not reported, or not remitted by the entity or person (as such term is defined in § 33089 of this title) so required under such obligation under any part of this Code.
(b) Persons Liable—
(1)Any chief operating officer, president, chief financial officer, chief accounting officer, comptroller, and any official serving in a similar capacity with an entity or person (as such term is defined in § 33089 of this title) required to collect, withhold, account for, and remit payment of any taxes or levies established under any part of this Code;
(2) any person whose responsibility, duty, function, or obligation at an entity or person (as such term is defined in § 33089 of this title) is to collect, withhold, deposit, account for, or remit payment of any taxes or levies established under any part of this Code, who knowingly does not collect or account for and faithfully remits payment of such taxes in the manner and under the terms established in any part of this Code, and
(3) any person who knowingly attempts in any way to evade or defeat any taxes imposed by any part of this Code or the payment of such taxes,
(c) This section shall be subject to the general application provisions of this Subtitle, including § 33089 and 33001 of this title among others.” 13 L.P.R.A. § 6080.02.
However, the Debtor is not personally hable for the corporate taxes and for the insufficient fund checks which Treasury claims in proof of claim # 12-1 as an unsecured general claim, given that the same are not trust fund taxes. The court finds that Treasury failed to specify the type of tax the corporation paid with the insufficient fund checks. Thus, the court concludes that Treasury’s priority claim pursuant to 11 U.S.C. § 507(a)(8)(C) is for the amount $30,856,06.
In light of the aforestated, this court finds that the income tax withholdings pursuant to Sections 8541, 8543, 13 L.P.R.A. §§ 1141 & 1143 satisfy the five (5) factors to be considered trust fund taxes pursuant to 11 U.S.C. § 507(a)(8)(C) and that the Debtor is personally responsible for payment of the same. However, the court concludes that Treasury’s priority claim pursuant to 11 U.S.C. § 507(a)(8)(C) is limited to the amount of $30,856.06 and Treasury is not entitled to claim the remainder of its unsecured general claim for corporate taxes and insufficient fund checks. The Debtor’s Motion for Summary Judgment on Objection to Claim # 72’s is denied and Treasury’s cross motion for summary judgment is granted in part and denied in part.
SO ORDERED.
Notes
. Section 523(a)(1)(A) provides: "a discharge under section 727, 1141, 1228(a), or 1328(b) of this title does not discharge an individual debtor from any debt—
(1) For a tax or customs duty—
(A) of the kind and for the periods specified in section 507(a)(3) or 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed.” 11 U.S.C. § 523(a)(1)(A).
. The Seventh Circuit has also concluded that the Illinois Use Tax, a sales tax, falls under the scope of section 507(a)(8)(C). See Rosenow v. Ill. Dep’t. of Revenue,
. Section 1141(b) of the Puerto Rico Internal Revenue Code of 1994 provides; “Requirement to withhold. Every employer who makes payments of wages shall deduct and withhold a tax on the sum of all wages determined according to the withholding schedules that, in harmony with the tax rates fixed in this Part, shall be approved by the Secretary of the Treasury and which shall be part of the regulations of this Part. For purposes of applying said schedules, the term ‘amount of the wages’ shall mean the amount by which the wages exceed the allowable exemption for withholding allowable under subsection (c)(1).”
. Section 6181 of the Puerto Rico Internal Revenue Code of 1994 provides in pertinent part: "[a]ny person who pays salaries and is required to deduct and withhold from any employee any income taxes under sec. 8541, or the regulations promulgated by the Secretary pursuant to the Code, and to remit payment of such taxes to the Government of Puerto Rico, shall deposit the amount of taxes thus deducted and withheld at any of the banking institutions designated as public fund depositories and which have been authorized by the Secretary to receive such taxes. Federal savings and loan associations and federal thrift banks that conduct business in Puerto Rico shall be deemed to be financial institutions for purposes of being designated as public fund depositories under this Code. Taxes shall be 'paid or deposited as established in the regulations promulgated by the Secretary regarding the manner, time, and conditions that shall govern the payment or deposit of such withheld taxes. When promulgating such regulations, the Secretary shall follow, as pertinent, the criteria established in regulatory provisions on the collection and deposit of income taxes withheld from salaries paid by the federal government and the corresponding deduction for Social Security.”13 L.P.R.A. § 8181.
. Section 1143(a) of the Puerto Rico Internal Revenue Code of 1994 provides in pertinent part: [t]he Government of Puerto Rico and every natural or juridical person who, in the exercise of a trade or business activity or for the generation of income in Puerto Rico, makes payments to another person by reason of services rendered, and every payer who makes payments to a health provider for health services rendered by said provider to any person, shall deduct and withhold seven percent (7%) of said payments. The term "Government of Puerto Rico” includes the Government of the Commonwealth of Puerto Rico, its agencies, instrumentalities, public corporations and political subdivisions. The term "payer” means insurers, nonprofit associations, health insurance cooperatives, health service organizations, and any other person who makes payments in the name of the persons mentioned herein. The term services does not include the contracting of insurance, the lease or sale of tangible real or personal property, printing services, sale of newspapers, magazines, and other publications (including the placement of advertisements) and contracting of radio or television time.” 13 L.P.R.A. § 8543(a).
. It appears that Jet Center, Inc. was administratively cancelled by the Department of State for failure to comply with its annual obligation to. file reports or pay annual dues for certain consecutive years. Section 15.02 of the General Corporations Act of 2009 provides in pertinent part: "[i]f a domestic corporation fails to file the annual report required by law for a term of two (2) consecutive years, the Secretary of State is authorized to revoke the certificate of incorporation, the Secretary of State shall notify the affected corporation of his/her intention to revoke by sending a notice of such intentions by mail to the registered agent of such corporation as it appears in its records.” 14 L.P.R.A. § 3852.
. Article 1141(1)(1) of the Regulations for Section 1141 establish in the Spanish language the following: "Artículo 1141(1)—1.— Responsabilidad por la contribución,El patro-no está obligado a cobrar la contribución deduciendo y reteniendo el monto de la mis-ma de los salaries del empleado al pagarlos, efectiva o implícitamente, En relación a cuándo los salarios son implícitamente paga-dos, véase el Artículo 1141-2. Un patrono estará obligado a deducir y retener la contri-bución a pesar de que los salarios se paguen en bienes o servicios que no sean dinero (por ejemplo, salarios pagados en acciones o bo-nos: véase el Artículo 1141(a)(l)-l)ypagarla contribución al Secretario en efectivo. Si los salarios se pagan en propiedad que no sea dinero, el patrono hará los arreglos necesar-ios para asegurarse que el monto de la contri-bución que se requiere retener esté disponible para depositarse en la institución bancaria correspondiente.
La cantidad de cualquier contribución reteni-da y cobrada por el patrono constituye un fondo especial en fideicomiso para el Estado Libre Asociado de Puerto Rico. El patrono u otra persona obligada a deducir y retener la contribución bajo la Sección 1141 del Código no responderá a persona otra alguna por el monto de dicha contribución retenida y paga-da al Secretario
La Sección 6050 del Código impone severas penalidades por voluntariamente dejar de pa-gar, recaudar o dar cuenta de y entregar en pago, la contribución impuesta por la Sección 1141 del Código, o por intentar voluntaria-mente en alguna forma evadir o derrotar la contribución. La imposición de estas penali-dades aplica a cualquier persona, incluyendo el patrono o a cualquier individuo, sociedad, corporación o cualquier oficial, funcionario, agente o empleado de un patrono corporativo o un socio, agente o empleado de una socie-dad, o un miembro o empleado de cualquier otro patrono, que como tal patrono, indivi-duo, oficial, agente, funcionario, empleado o socio esté obligado a realizar el acto con el cual ocurra la violación. Dicho término in-cluye también a cualquier oficial, agente o empleado de un departamento, agencia, in-strumentalidad, corporación pública o muni-cipio del Estado Libre Asociado de Puerto Rico.” Article 1141(1)—1 of Regulations for Section 1141.
. Article 1143(c)-(l) of the Regulations establish in the Spanish language the following: "Responsabilidad por las cantidades retenidas. El Gobierno de Puerto Rico y toda persona, natural o jurídica, obligada a efectuar la de-ducción y retención requerida sobre el monto de los pagos cubiertos bajo la Sección 1143 del Código, será responsable del pago de dicha cantidad a retenerse, sea o no ésta dedu-cida y retenida en el origen y no responderá a persona otra alguna por el monto de dicha cantidad retenida y pagada al Secretario.” Article 1143(c)-l of Regulations for Section 1142, 1143 and 1234 of Subtitle A and Section 6127 of Subtitle F.
. The court notes that the Commonwealth of Puerto Rico Department of State's electronic ■ registry of corporations and entities disclose that Jet Center, Inc. (registry # 102097) filed its last annual report on July 18, 2009 for the year 2008. The 2008 annual report discloses that the Debtor (Rosa A. Montalvo/ Rosanna Montalvo) was the President, Vice-President and Treasurer of said corporation and such appointments were for an indefinite amount of time. Debtor’s bankruptcy petition clarifies that Rosa Amelia Morillo Serrano is also known as: Rosa A. Montalvo, Rosa Amelia Morillo de Montalvo, Rosa Morillo Serrano and does business as Jet Center and Plaza Tours Inc.
.Section 6672 provides in pertinent part: "[a]ny 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. No penalty shall be imposed under section 6653 of part II of subchapter A of chapter 68 for any offense to which this section is applicable.” 26 U.S.C. § 6672(a).
. Section 6671 provides in pertinent part: “(b) Person defined. The term 'person', as used in this subchapter, includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.” 26 U.S.C. § 6671(b).