Botta v. Scanlon, 314 F.2d 392 (2d Cir. 1963). · Go Syfert
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Botta v. Scanlon, 314 F.2d 392 (2d Cir. 1963). Cases Citing This Book View Copy Cite
102 citation events (14 in the last 25 years) across 43 distinct courts.
Strongest positive: Ivison v. Internal Revenue Service, United States of America (txsb, 2020-04-23)
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Top citers, strongest first. 39 distinct citers. How cited ↗
discussed Cited as authority (rule) Ivison v. Internal Revenue Service, United States of America
Bankr. S.D. Tex. · 2020 · confidence medium
Therefore, § 6672 “ ‘is simple a means of ensuring that the tax which is unquestionably owed the Government is paid.’ ” Id. (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963)). 71 26 U.S.C. § 6672 (a); Barnett v. I.R.S., 988 F.2d 1449, 1453 (5th Cir. 1993). 72 Turnbull v. U.S., 929 F.2d 173, 178 (5th Cir. 1991). 73 26 U.S.C. § 6671 (b). 74 Barnett, 988 F.2d at 1453 n.6. 75 Slodov, 436 U.S. at 250 . 76 ECF No. 110 at 91. whether Plaintiffs willfully failed to perform their duty to collect, truthfully account for, or pay over trust fund taxes to the Government, an issue which…
discussed Cited as authority (rule) Seven-Sky v. Holder (2×) also: Cited "see"
D.C. Cir. · 2011 · confidence medium
Violators will only owe the penalty starting in April 2015, when it must be enclosed with their tax returns. [19] See 26 U.S.C. § 6303 (notice); id. § 6311 (means of payment); id. § 6321 (liens); id. § 6331 (levies). [20] See Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963) (surveying cases); see also Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983); Kelly v. Lethert, 362 F.2d 629, 633 (8th Cir.1966); Shaw v. United States, 331 F.2d 493, 496 (9th Cir.1964). [21] See Nuttelman v. Vossberg, 753 F.2d 712, 714 (8th Cir.1985) (interpreting 26 U.S.C. § 6601 (e)(1)); Prof'l Eng'r, Inc.…
discussed Cited as authority (rule) US CITIZENS ASSOCIATION v. Sebelius
N.D. Ohio · 2011 · confidence medium
Allowing IRS penalties such as those to qualify as a tax for Anti-Injunction Act purposes “is simply a means for ensuring that the [underlying] tax is paid.” See Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963).
discussed Cited as authority (rule) Florida Ex Rel. McCollum v. United States Department of Health & Human Services
N.D. Fla. · 2010 · confidence medium
Allowing IRS penalties such as those to qualify as a tax for Anti-Injunction Act purposes “is simply a means for ensuring that the [underlying] tax is paid.” See Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963).
discussed Cited as authority (rule) J.J. Re-Bar Corp. v. United States (In Re J.J. Re-Bar Corp.)
9th Cir. BAP · 2009 · confidence medium
Although the “responsible person” liability provided for in § 6672(a) is described as a “penalty,” it is not penal in nature, [Monday v. United States, 421 F.2d 1210, 1216 (7th Cir. 1970)], but is “ ‘simply a means of ensuring that the tax is paid.’ ” [Newsome v. United States, 431 F.2d 742, 745 (5th Cir.1970)] (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963)).
discussed Cited as authority (rule) Looney v. United States
S.D. Tex. · 2008 · confidence medium
Indeed, the Fifth Circuit and others have recognized that liability under § 6672 is not penal in nature, but is “ ‘simply a means of ensuring that the tax is paid.’ ” Newsome v. United States, 431 F.2d 742, 745 (5th Cir.1970) (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963)); see also In re Energy Res.
discussed Cited as authority (rule) In Re Fiesole Trading Corp.
Bankr. D. Mass. · 2004 · confidence medium
See Slodov v. United States, 436 U.S. 238, 243-45 , 98 S.Ct. 1778 , 56 L.Ed.2d 251 (1978); United States v. Sotelo, 436 U.S. 268, 275 , 98 S.Ct. 1795 , 56 L.Ed.2d 275 (1978) (government argued, and the Supreme Court agreed, that assessments pursuant to § 6672 were not a penalty in the true sense, but merely a means of ensuring collection of Trust Fund taxes); United States v. Pepperman, 976 F.2d 123, 126-27 (3d Cir.1992); IRS v. Energy Res., Inc. (In re Energy Res., Inc.), 871 F.2d 223, 232-33 (1st Cir.1989); United States v. Technical Knockout Graphics, Inc. (In re Technical Knockout Graphic…
discussed Cited as authority (rule) National Federation of Republican Assemblies v. United States
S.D. Ala. · 2001 · confidence medium
Various other courts have dealt with the penalty/tax question with regard to the applicability of the Anti-Injunction Act, and most have relied upon the language of Section 6671(a). 8 See, e.g., Warren v. United States, 874 F.2d 280, 282 (5th Cir.1989); Souther v. Mihlbachler, 701 F.2d 181 , 132 (10th Cir.1983) (citing § 6671(a), the court stated that “the penalties imposed pursuant to § 6682 are ‘taxes’ under § 7421”.); Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963) (finding that a penalty imposed under § 6672 was a “tax” for Anti-Injunction Act purposes because of the exce…
discussed Cited as authority (rule) Securities & Exchange Commission v. Credit Bancorp, Ltd. (2×) also: Cited "see"
S.D.N.Y. · 2001 · confidence medium
The Government does not provide much detail for its view that this second form of relief “relates to federal taxes.” However, the Government’s position can be understood based on its citation to Botta v. Scanlon, 314 F.2d 392, 393-94 (2d *527 Cir.1963), in which the Second Circuit held that a suit seeking to restrain the United States from collecting a penalty assessment under § 6672 of the tax code was barred by the Anti-Injunction Act.
discussed Cited as authority (rule) Carlucci v. United States
S.D.N.Y. · 1992 · confidence medium
The primary purpose of § 6672 is to “ensur[e] that the tax which is unquestionably owed the Government is paid.” Feist v. United States, 221 Ct.Cl. 531 , 607 F.2d 954, 957 (1979); Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963); Cook v. United States, 765 F.Supp. at 219 .
cited Cited as authority (rule) Robert L. Cash and Evelyn L. Cash v. United States of America, Defendant-Counter v. Randall C. Block, Counter
5th Cir. · 1992 · confidence medium
Newsome, 431 F.2d at 745 , citing Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963).
cited Cited as authority (rule) Cash v. U.S.
5th Cir. · 1992 · confidence medium
Id. at 745, citing Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963).
cited Cited as authority (rule) Douglas A. Olsen v. United States
8th Cir. · 1991 · confidence medium
Thus, § 6672 “is simply a means of ensuring that the tax is paid_” Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963).
discussed Cited as authority (rule) Cook v. United States
M.D. Penn. · 1991 · confidence medium
Rather, the primary purpose of § 6672 is to “ensur[e] that the tax which is unquestionably owed to the government is paid.” Feist v. United States, 607 F.2d 954, 957 , 221 Ct.Cl. 531 (1979); Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963).
cited Cited as authority (rule) Dennis J. Turnbull v. United States of America, Defendant-Counter v. Johnny Foster, Counter
5th Cir. · 1991 · confidence medium
Therefore, section 6672 “‘is simply a means of ensuring that the tax which is unquestionably owed the Government is paid.' ” Id. (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2nd Cir.1963)). 7 .
discussed Cited as authority (rule) Workman v. United States (In Re Workman)
Bankr. M.D. Ga. · 1989 · confidence medium
Although denoted a penalty in the statute, the liability imposed by section 6672 is not penal in nature, Monday, 421 F.2d at 1216 , but is “ ‘simply a means of ensuring that the tax is paid.’ ” Newsome, 431 F.2d at 745 (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963)).
cited Cited as authority (rule) Edgar B. Thomsen, Jr. v. United States
1st Cir. · 1989 · confidence medium
Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963); Spivak v. United States, 370 F.2d 612, 616 (2d Cir.), cert. denied, 387 U.S. 908 , 87 S.Ct. 1690 , 18 L.Ed.2d 625 (1967).
discussed Cited as authority (rule) Internal Revenue Service v. Energy Resources Co. (In re Energy Resources Co.)
1st Cir. · 1989 · confidence medium
Section 6672 does refer to “responsible” person liability as a “penalty” but this characterization “does not alter their essential character as taxes.” United States v. Sotelo, 436 U.S. 268, 275 , 98 S.Ct. 1795, 1800 , 56 L.Ed.2d 275 (1978); Huckabee Auto Co., 783 F.2d at 1548 (“Although denoted a penalty in the statute, the liability imposed by section 6672 is not penal in nature, but is ‘simply a means of ensuring that the tax is paid.’ ”) (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963)) (citation omit ted).
discussed Cited as authority (rule) In Re Energy Resources Co., Inc., Debtor. Internal Revenue Service v. Energy Resources Co., Inc., in Re Newport Offshore, Ltd., Debtor. United States of America v. Newport Offshore, Ltd.
1st Cir. · 1989 · confidence medium
Section 6672 does refer to "responsible" person liability as a "penalty" but this characterization "does not alter their essential character as taxes." United States v. Sotelo, 436 U.S. 268, 275 , 98 S.Ct. 1795, 1800 , 56 L.Ed.2d 275 (1978); Huckabee Auto Co., 783 F.2d at 1548 ("Although denoted a penalty in the statute, the liability imposed by section 6672 is not penal in nature, but is 'simply a means of ensuring that the tax is paid.' ") (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963)) (citation omit ted).
discussed Cited as authority (rule) The Purdy Company of Illinois, an Illinois Corporation v. United States
7th Cir. · 1987 · confidence medium
As administered by the IRS, section 6672 “brings to the government only the same amount to which it was entitled by way of the tax,” and “ ‘is simply a means of insuring that the tax is paid.' ” Newsome v. United States, 431 F.2d 742, 745 (5th Cir.1970) (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963)).
discussed Cited as authority (rule) In Re Turchon
Bankr. E.D.N.Y. · 1986 · confidence medium
Section 6672 , as well as the relationship between corporate and “responsible person” liability: Although denoted a penalty in the statute, the liability imposed by section 6672 is not penal in nature, Monday [v. U.S.], 421 F.2d [1210] at 1216 [(7th Cir.1970)], but is “simply a means of ensuring that the tax is paid.” Newsome [v. U.S.], 431 F.2d [742] at 745 [(5th Cir.1970)] (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963)).
discussed Cited as authority (rule) United States v. Huckabee Auto Co.
11th Cir. · 1986 · confidence medium
Although denoted a penalty in the statute, the liability imposed by section 6672 is not penal in nature, Monday, 421 F.2d at 1216 , 5 but is “ ‘simply a means of ensuring that the tax is paid.’ ” Newsome, 431 F.2d at 745 (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963)).
discussed Cited as authority (rule) Swift v. Levesque
D. Conn. · 1985 · confidence medium
Federal courts discussing § 6672 have clearly stated that although the section is a civil penalty it is quite different from a criminal punishment, and “is simply a means of ensuring that the tax which is unquestionably owed the government is paid.” Feist v. United States, 607 F.2d 954, 957 , 221 Ct.Cl. 531 (1979); Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963).
cited Cited as authority (rule) Abramson v. United States
E.D.N.Y · 1985 · confidence medium
The Second Circuit has stated succinctly that the penalty ‘is simply a means of ensuring that the tax is paid.’ Botta v. Scanlon, 314 F.2d 392, 393 (2 Cir.1963).
cited Cited as authority (rule) Feist v. United States
Ct. Cl. · 1979 · confidence medium
Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963).
cited Cited as authority (rule) Taubman v. United States
E.D. Mich. · 1978 · confidence medium
Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963); Spivak v. United States, 370 F.2d 612, 616 (2d Cir. 1967), certiorari denied, 387 U.S. 908 , 87 S.Ct. 1690 , 18 L.Ed.2d 625 .
discussed Cited as authority (rule) J. A. Newsome, Jr. v. United States (2×)
5th Cir. · 1970 · confidence medium
The Second Circuit has stated succinctly that the penalty "is simply a means of ensuring that the tax is paid." Botta v. Scanlon, 314 F.2d 392, 393 (2 Cir. 1963).
cited Cited as authority (rule) Braden v. United States
S.D. Ohio · 1970 · confidence medium
Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963); Spivak v. United States, 370 F.2d 612, 616 (2d Cir. 1967), certiorari denied, 387 U.S. 908 , 87 S.Ct. 1690 , 18 L.Ed.2d 625 .
discussed Cited as authority (rule) Pacific National Insurance Company v. United States (2×) also: Cited "see, e.g."
9th Cir. · 1970 · confidence medium
See also United States v. Hill, 368 F.2d 617, 621 (5th Cir. 1966); Botta v. Scanlon, 314 F.2d 392, 394 (2d Cir. 1963). 10 .
cited Cited as authority (rule) Robert W. Monday v. United States of America, and Third-Party v. John A. Monday, Third-Party
3rd Cir. · 1970 · confidence medium
Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963); Spivak v. United States, 370 F.2d 612, 616 (2d Cir.1967), certiorari denied, 387 U.S. 908 , 87 S.Ct. 1690 , 18 L.Ed.2d 625 .
cited Cited as authority (rule) Stephanie Bauer v. John E. Foley, as District Director of Internal Revenue Service, Buffalo District, and the United States
2d Cir. · 1968 · confidence medium
Co., 370 U.S. 1 , 82 S.Ct. 1125 , 8 L.Ed.2d 292 (1962); Miller v. Standard Nut Margarine Co., 284 U.S. 493 , 52 S.Ct. 260 , 76 L.Ed. 422 (1932); Botta v. Scanlon, 314 F.2d 392, 394 (2 cir. 1963).
discussed Cited as authority (rule) United States v. Casner
D. Conn. · 1967 · confidence medium
See Int.Rev.Code of 1954, § 7421(a), 26 U.S.C. § 7421 (a) (1964); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962); Botta v. Scanlon, 314 F.2d 392, 394 (2 Cir. 1963); see also Falik v. United States, 343 F.2d 38, 43 (2 Cir. 1965); cf. Milliken v. Gill, 211 F. 2d 869 (4 Cir. 1954), cert. denied, 348 U.S. 827 (1954).
cited Cited as authority (rule) Walter Vuin v. Melvin J. Burton, Director of Internal Revenue for Cleveland, Ohio District
6th Cir. · 1964 · confidence medium
Botta v. Scanlon, supra 314 F.2d at 394. 2 .
cited Cited "see" Roland J. Kalb v. United States of America, and Third-Party v.jerome L. Herold, Third-Party
2d Cir. · 1974 · signal: see · confidence high
Monday v. United States, supra; see Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963).
discussed Cited "see" Wahler v. Church
E.D.N.Y · 1966 · signal: see · confidence high
See Heller v. Scanlon, supra. With respect to the second part of the burden, plaintiff must show that “under a view of the law most favorable to the government, it cannot establish its claim,” Botta v. Scanlon, supra 314 F.2d at 394 ; and “[n]o more is required of the government than that it act in good faith.” Id. at 394 .
discussed Cited "see" Williams v. Ross
N.D. Ga. · 1963 · signal: see · confidence high
See Botta v. Scanlon, 2 Cir., 314 F.2d 392, at p. 394 . 3 This Court does not know whether Mrs. Williams is utterly free from all liability personally, nor whether she is' financially able to pay the tax claim for refund.
discussed Cited "see, e.g." East Wind Industries, Inc. v. United States
3rd Cir. · 2004 · signal: see also · confidence medium
Co., 871 F.2d 223 , 232 (1st Cir.1989) (internal quotations omitted) (citing United States v. Sotelo, 436 U.S. 268, 275 , 98 S.Ct. 1795 , 56 L.Ed.2d 275 (1978)); see also United States v. Huckabee Auto Co., 783 F.2d 1546, 1548 (11th Cir.1986) (“Although denoted a penalty in the statute, the liability imposed by section 6672 is not penal in nature, but is ‘simply a means of ensuring that the tax is paid.”’ (internal citation omitted) (quoting Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir.1963))).
discussed Cited "see, e.g." Butler v. District Director of Internal Revenue
S.D. Tex. · 1973 · signal: see also · confidence low
Miller v. Standard Nut Margarine Co. of Fla., 49 F.2d 79, 85 (5th Cir. 1931), aff’d, 284 U.S. 498 , 52 S.Ct. 260 , 76 L.Ed. 422 (1932); see also Botta v. Scanlon, 187 F.Supp. 856 (E.D.N.Y.1960), aff’d, 314 F.2d 392 (2d Cir. 1963).
cited Cited "see, e.g." Monsky v. Fitzgerald
E.D.N.Y · 1968 · signal: see also · confidence low
See also, e.g., Botta v. Scanlon, 314 F.2d 392 (2d Cir. 1963).
Retrieving the full opinion text from the archive…
Michael Botta, Ernest Montagni and Salvatore Santaniello
v.
Thomas E. Scanlon, District Director of Internal Revenue for the District of Brooklyn, New York
27408_1.
Court of Appeals for the Second Circuit.
Mar 8, 1963.
314 F.2d 392
Published

314 F.2d 392

Michael BOTTA, Ernest Montagni and Salvatore Santaniello, Appellants,
v.
Thomas E. SCANLON, District Director of Internal Revenue for the District of Brooklyn, New York, Appellee.

No. 190.

Docket 27408.

United States Court of Appeals Second Circuit.

Argued January 17, 1963.

Decided February 18, 1963.

On Rehearing March 8, 1963.

Daniel H. Greenberg, New York City (Marvin Margolis, New York City, on the brief), for appellants.

Ralph A. Muoio, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Dept. of Justice, Washington, D. C., Joseph P. Hoey, U. S. Atty., Eastern District of New York, Brooklyn, N. Y., on the brief), for appellee.

Before LUMBARD, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.

LUMBARD, Chief Judge.

[*~392]1

This is an appeal from an order of the United States District Court for the Eastern District of New York, Rayfiel, J., dismissing the appellants' complaint. 198 F.Supp. 899 (1961). On appeal from a prior dismissal of their complaint, 187 F.Supp. 856 (E.D.N.Y.1960), this court modified the order of the district court so as to permit the appellants to file an amended complaint, and remanded the case to the district court for that purpose. 288 F.2d 504 (2 Cir., 1961). We find that the complaint, as amended, was properly dismissed and affirm the order below.

2

The amended complaint alleges that the Thru-County Plumbing and Heating Co., Inc., adjudicated a bankrupt in February 1958, owed various withholding and employment taxes to the federal government for periods comprising part of 1956, all of 1957, and part of 1958. During this time the appellants were officers and/or major stockholders of the corporation. Failing to recover the taxes, the Internal Revenue Service made penalty assessments against the appellants pursuant to the provisions of § 6672, Internal Revenue Code of 1954, which makes "any 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" liable for a penalty assessment equal to the amount of the tax unpaid. The complaint further alleges that none of the appellants ever had the duty of preparing the tax returns in question nor did any of them sign or file the returns, and that none of them is liable for the penalty assessment under § 6672. The Internal Revenue Service served demands for payment of the penalty on the appellants, filed notices of tax liens against them, and levied on their assets. Also alleged are facts intended to show that these acts of the Internal Revenue Service threaten to impoverish and are impoverishing the appellants, causing them irreparable injury. They seek an injunction restraining the Service from collecting the assessments and other appropriate relief.

3

Section 7421(a) of the Internal Revenue Code, with exceptions not relevant here, prohibits all suits "for the purpose of restraining the assessment or collection of any tax * * *." The appellants argue that assessments under § 6672 are in the nature of a penalty and that they do not come within the prohibition of § 7421(a) against suits to restrain the collection of a "tax." But it is expressly provided in § 6671 (a) of the Code that "except as otherwise provided, any reference in this title to `tax' imposed by this title shall be deemed also to refer to the penalties and liabilities provided by this subchapter [including § 6672]." There is no provision to the contrary applicable to § 6672.

[*~393]4

So far as we have been able to discover, every court which has considered the question has ruled that suits to restrain the collection of assessments under § 6672 or the comparable provisions of the 1939 Code are prohibited. Enochs v. Green, 270 F.2d 558 (5 Cir., 1959); Reams v. Vrooman-Fehn Printing Co., 140 F.2d 237 (6 Cir., 1944); Heller v. Scanlon, 196 F.Supp. 832 (E.D. N.Y.1961); Lipsig v. United States, 187 F.Supp. 826 (E.D.N.Y.1960); Yates v. White, 152 F.Supp. 320 (S.D.Ill.1957); Headley v. Knox, 133 F.Supp. 36 (D. Minn.1955). We agree with the result reached in these cases. The nature of the penalty imposed, which is an assessment equal to the amount of the tax not paid, shows that § 6672 is simply a means for ensuring that the tax is paid, and does not impose a criminal liability. Compare § 7202 of the Code, which provides a criminal penalty for the willful failure to collect and pay over taxes. In a case like the present, where the amount of the tax was withheld from the employees but not paid over to the government by the corporation, so that the assessment brings to the government only the same amount as that to which it was entitled by way of the tax, there is no reason to doubt that Congress meant what it said in § 6671 (a) and that collection of the assessment can no more be prevented by injunction than could the original tax. Since the assessments here were made against the appellants, their reference to cases in which the government sought to satisfy the tax obligation of one out of the property of another, e. g., Bullock v. Latham, 306 F.2d 45 (2 Cir., 1962), are inapposite.

5

The appellants argue that even if § 7421(a) is applicable, their case falls within an exception to it by reason of their showing of irreparable injury. Since this case was last before us, the Supreme Court has made it clear in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L. Ed.2d 292 (1962), that a showing of irreparable injury is insufficient to overcome the barrier of § 7421(a). In that case, the Supreme Court said that only where there is no adequate remedy at law and "it is clear that under no circumstances could the Government ultimately prevail" can a suit for an injunction be maintained.[1] Id. at 7, 82 S.Ct. at 1129. The appellants have not met that double burden.

6

There may be some doubt about the ultimate liability of appellant Montagni, since it is alleged that he was not at any time an officer or employee of the bankrupt corporation and § 6671(b) of the Code states that the word "person" as used in § 6672 "includes an officer or employee of a corporation * * *." But Montagni was a substantial stockholder of the corporation, and for aught that appears in the complaint he may also have been a director. It may well be that the reference to officers and employees in § 6671(b) is exemplary and not exclusive. In United States v. Graham, 309 F.2d 210 (1962), the Ninth Circuit held that a director could be liable under § 6672, saying that the word "person" was not strictly limited to officers and employees, but included "all those so connected with a corporation as to be responsible for the performance of the act in respect of which the violation occurred." Id. at 212. We need not decide that question now. It is sufficient that the appellants have not met the requirement of showing that under a view of the law most favorable to the government, it cannot establish its claim. No more is required of the government than that it act in good faith. Williams Packing and Navigation Co., supra, 370 U.S. at 7. Since the appellants have not shown that the government has not so acted here, their complaint was properly dismissed.[2]

7

Affirmed.

Notes:

1

Any implication in Botta v. Scanlon, 288 F.2d 504 (2 Cir., 1961) and National Foundry Co. of New York v. Director of Internal Revenue, 229 F.2d 149 (2 Cir., 1956) that either one of these circumstances may alone be sufficient is overruled by Williams Packing and Navigation Co., supra

2

The district court found that the appellants' allegations of financial hardship did not present "special circumstances" sufficient to maintain their suit. Compare our prior opinion in this case, 288 F.2d at 508, where we said that the "special and extraordinary circumstances" which permit a suit to restrain the collection of taxes do not "embrace financial hardship in making the payment." Since we dispose of the case on other grounds, we do not consider whether, under the bifurcated requirement established by Williams Packing and Navigation Co., the allegations of financial hardship were sufficient to show that there was no adequate remedy at law

8

On Petition for Rehearing.

9

PER CURIAM.

[*~394]10

As plaintiffs-appellants have expressed their desire to pay the tax assessment in whole or in part, file a claim for refund and sue to recover such refund, it would seem a preferable procedure for them to commence a new action upon the basis of these new facts after they have taken place. To facilitate this procedure, and in the interest of substantial justice, we amend our mandate and decision herein and direct that the order appealed from be affirmed without costs, and that the District Court be directed to dismiss the action, without prejudice, also without costs.