Oliver K. Robinson and Deborah L. Robinson, et al. - Page 18





                                       - 18 -                                         
         responsible person liability11 but do not find that situation                
         analogous or controlling with respect to the assessment of a                 
         shareholder’s income tax on constructive dividend income.                    
              The section 6672 penalty is used as a collection device by              
         assessment of unpaid employment tax against an individual as a               
         “responsible person”.  The particular employment taxes are those             
         that had been collected from employees and, as such, are trust               
         fund taxes in the employer’s hands.  Stallard v. United States,              
         12 F.3d 489, 493 n.6 (5th Cir. 1994).  Accordingly, while the                
         assessment of responsible person penalties is separate for                   
         purposes of collection, the underlying tax liability for a                   
         section 6672 assessment is the same liability as the employer’s.             
         Since the assessment is “based on” the underlying liability of               
         the employer, the filing of the employer’s employment tax return             
         triggers the period of limitation applicable to the penalty.                 
              In contrast, a C corporation’s income tax liability on its              
         net income (i.e., income less deductions) is separate and                    
         distinct from the shareholder’s income tax liability on dividend             
         income received from it.  Secs. 1, 11, 301; see also InverWorld,             
         Ltd. v. Commissioner, 98 T.C. 70, 82 (1992); S-K Liquidating Co.             
         v. Commissioner, 64 T.C. 713, 716-718 (1975).  It follows that               


               11 See Jones v. United States, 60 F.3d 584, 589 (9th Cir.              
          1995); Stallard v. United States, 12 F.3d 489, 493 (5th Cir.                
          1994); Howard v. United States, 868 F. Supp. 1197, 1200 (N.D.               
          Cal. 1994).                                                                 





Page:  Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  Next

Last modified: May 25, 2011