Note the similarity to that definition with 26 U.S.C. § 7343 in Title 26, Subtitle F, Chapter 75,
§ 7343. Definition of term “person”
The term “person” as used in this chapter includes an officer or employee of a corporation, or amember or employee of a partnership, who as such officer, employee, or member is under aduty to perform the act in respect of which the violation occurs.
- what are the factual elements of § 7343? They have never been defined incase law.Since we have good case law about § 6671(b) "person," we'll look at what the law and the caselaw show first.
The 1st Factual Element - One Must Be an Individual
Nearly universally in the civil and criminal cases I studied, everyone claimed they weren't the"person" because they (1) weren't an employee; (2) weren't an officer; (3) weren't a member of a partnership; (4) weren't tied to the corporation in any other position of authority (board of directors, stock holder, human resources/payroll officer,
). In Mr. Hendrickson's case, hewent to great lengths discussing the constitutional and legal reasons why he wasn't a personbased on "includes and including." No matter what any of the defendants argued about
being the person, the courts found that, at a minimum, they were an individual and thus couldbe charged.Here's how the 9th Circuit explains "includes and including."The definition of "persons" in section 6671(b) indicates that the liability imposed by section 6672upon those other than the employer is not restricted to the classes of persons specifically listed officers or employees of corporations and members or employees of partnerships. "[B]y useof the word `include[s]' the definition suggests a calculated indefiniteness with respect to theouter limits of the term" defined.
First National Bank In Plant City, Plant City, Florida v.Dickinson
, 396 U.S. 122, 90 S.Ct. 337, 24 L.Ed.2d 312 (1969).
Based on this, it seems pretty clear that "includes" really means
. So where is the limit"within the meaning of the term defined" (26 U.S.C. 7701(c)"? That's easy! Two paragraphslater, the court clarifies where the limit of "includes" ends:Indeed, the language itself does not require that they be officers or employees of thecorporation at all, so long as they are in fact responsible for controlling31corporatedisbursements. As we held in
, supra, 309 F.2d at 212, "the section must be