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U.S. v. Colasuonno

Government's Tax Collection Suit Timely; NFTL Does Not Bear on Tolling by Bankruptcy Court

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OPINION AND ORDER Plaintiff the United States of America (“Plaintiff”) commenced this action on December 20, 2021, pursuant to 26 U.S.C. §7401, seeking a judgment for unpaid tax penalties levied on Defendant Philip Colasuonno (“Defendant”) under 26 U.S.C. §6682. (Docket No. 1).1 Defendant now moves to dismiss the Complaint with prejudice and for judgment on the pleadings, pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(c), respectively. (Docket Nos. 17-18). Plaintiff opposes the motion, (Docket No. 19), and Defendant replied, (Docket No. 20). For the reasons set forth herein, Defendant’s motion is denied. I. BACKGROUND Plaintiff seeks to collect tax penalties assessed against Defendant for willfully failing to collect, account for and remit to the federal government Social Security, Medicare and income taxes for employee wages over a four-year period in accordance with federal law. Defendant was a one-third owner of American Armored Car Ltd. (“AAC”) from 2001 through 2005. (Docket No. 1

6, 20).2 As partial owner, he “exercised authority and control over AAC’s financial affairs, including but not limited to the collection, truthful accounting, and paying over of employment taxes for its employees.” (Docket No. 1 6). Federal law requires employers, like AAC, to withhold and remit Social Security, Medicare, unemployment and income taxes from their employees’ wages, and to report such holdings to the Internal Revenue Service (“IRS”). (Docket No. 1

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