U.S. v. Duplissey

145 F.3d 1341 (9th Cir. 1998) UNITED STATES OF AMERICA, Plaintiff-counter-claimant-Appellee, v. Dewey P. DUPLISSEY, Defendant-counter-claimant-Appellant. Emmett F. MUNLEY, Plaintiff-counterclaim-Defendant-Appellant, v. UNITED STATES OF AMERICA, Defendant-countercla im-Plaintiff-Appellee. No. 95-15674, 95-15835. United States Court of Appeals, Ninth Circuit June 1, 1998

Submitted May 15, 1998.

The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a) and Ninth Circuit Rule 34-4.

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

81 A.F.T.R.2d 98

Appeal from the United States District Court for the District of Nevada.

Before: LAY, KOZINSKI, and T.G. NELSON, Circuit Judges.

Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit Court of Appeals, sitting by designation.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

LEAVITT, J., Presiding.

A. Duplissey

Duplissey was the on-site manager in charge of the day-to-day operation of the Mohawk Bingo Palace. He had the authority to hire and fire employees and to sign checks, and was responsible for paying bills as they became due. His deposition testimony suggests that he was aware of the reporting requirement. Thus, the district court did not abuse its discretion in determining that the Government's position in bringing the action was "substantially justified" and, accordingly, it properly denied Duplissey's Motion for Attorney's Fees. 26 U.S.C. § 7430(c)(4)(A)(i) (1988) (disallowing attorney's fees if the Government's position was substantially justified); see Davis v. United States, 961 F.2d 867, 870 (9th Cir.1992) (stating that, to be liable under 26 U .S.C. § 6672, one must be a "responsible person" who acted "willfully"); Huffman v. Commissioner, 978 F.2d 1139 (9th Cir.1992) (reviewing a district court's determination that the Government's position was substantially justified for an abuse of discretion).

B. Munley

Munley had full supervisory control over the Mohawk Bingo Palace operation. He had the power to hire and fire employees, the power to sign checks on the Palace's account, and the decisionmaking authority over which creditors to pay or not to pay. The fact that the Tribe allegedly instructed Munley not to collect the taxes is unhelpful. The Tribe played no role in the day-to-day operation of the business, had no management or accounting responsibilities, and disbursed none of the revenues. Thus, the district court correctly determined that Munley was a "responsible person" under 26 U.S.C. § 6672.

AFFIRMED.