The opinion of the court was delivered by: Steven J. McAuliffe District Judge
By order dated December 7, 2011, the court denied cross-motions for summary judgment filed by the Hulicks and the Internal Revenue Service, concluding that the existence of genuinely disputed material facts precludes the entry of judgment as a matter of law in favor of either party. The Hulicks seek clarification of that order, raising two points.
First, David Hulick says that his deposition testimony establishes that he "had nothing to do with Maine Aviation at any point in time," and the government did not attempt to contradict that fact with admissible evidence. Therefore, he argues, he cannot be found to be a "responsible person" with respect to Maine Aviation given the undisputed fact that he played no role in the company. Motion for Clarification (document no. 81) at 2 (quoting Hulick deposition (document no. 48-4) at 12). Consequently, he cannot be held legally responsible for the Trust Fund Recovery Penalty ("TFRP") related to Maine Aviation that was assessed against him. Second, the Hulicks say the court erred by failing to "rule upon the Hulicks' (unopposed) summary judgment motion as to the [New Hampshire Dept. of Employment Security] claim." Motion for Clarification at 3.
As discussed more fully in the court's prior order, the Internal Revenue Service determined that Hulick was a "responsible person" with respect to seven related companies associated with the Manchester-Boston Regional Airport: Aviation Jet Services; In-flight Service, Inc.; Aviation Jet Services-Manchester; Jet Ground Support Services, Inc.; Precision Turbines, Inc.; Precision Aviation; and Northeast Express Regional Airlines. The IRS also concluded that he was a responsible person with respect to one aviation-related company associated with the airport in Portland, Maine: Maine Aviation Corporation. Accordingly, the IRS looked to Hulick, personally, for payment of taxes and F.I.C.A. contributions that had been withheld by those companies from employees' paychecks, but never remitted to the IRS. In other words, the government claims Hulick is liable for TFRPs relating to those eight companies. See generally 26 U.S.C. § 6672(a).
At this juncture - particularly in light of Hulick's motion for clarification - it should probably be noted that neither Hulick nor the IRS has clearly described Hulick's (alleged) role with respect to each of the eight individual companies. The parties - the government in particular - tend to avoid precision, preferring instead to employ gross generalities, referring to various companies collectively as the "Airline Companies" or the "Jet Companies." See, e.g., United States' Motion for Summary Judgment (document no. 50) at 1-2; United States' Memorandum (document no. 50-1) at 3; Hulicks' Memorandum in Opposition (document no. 57-2) at 13. More importantly, however, the government has never identified which assessments related to the eight companies it actually seeks to recover in this litigation. Its pleadings and memoranda group the companies together as if they were a single entity. See, e.g., Complaint (document no. 1) at 2-3. While the government says Hulick is liable for distinct TFRPs relating to each of the eight companies, its complaint is ambiguous in that it does not describe Hulick's liability-generating activity on a company by company basis.
I. The Specific Claims Pending Against Mr. Hulick.
It is time to clarify precisely what is sought in this litigation. The government's complaint is not clear and its various memoranda needlessly blur and confuse what should be a fairly straight-forward case.
Careful reading of the complaint, and consideration of the record evidence (particularly the various notices of assessment the IRS issued to Hulick), discloses that the government seeks a judgment that Hulick is liable for two Trust Fund Recovery Penalty assessments - one relating to Precision Valley Aviation and one relating to Maine Aviation Corporation. Parenthetically, the court notes that the government thinks its complaint asserts claims relating to all eight companies (the one in Maine, and the seven in Manchester). See, e.g., Government's Motion for Summary Judgment (document no. 50) at 1-2 (seeking a judgment that "David H. Hulick be deemed a responsible person of the seven aviation-related companies associated with the Manchester, New Hampshire International Airport.") (emphasis supplied).
The first assessment at issue in this case was made on March 17, 1997, in the amount of $28,375.19. See Complaint at 2-3, para. 6. As the government correctly notes, that assessment relates exclusively to Maine Aviation Corporation. See Complaint at 3, n. 4. See also Exhibit 11 to Hulick Affidavit (document no. 48-26) (IRS notice of assessment of TFRP against Hulick for Maine Aviation Corporation in the amount of $28,375.19 - that is, the precise amount of the second of two assessments specified in paragraph 6 of the government's complaint).
B. Precision Valley Aviation.
The second assessment at issue in this litigation is for the tax periods ending on June 30, 1994, in the amount of $485,713.43. Complaint at 2-3, para. 6. The government says that particular assessment "relate[s] to the seven Manchester, New Hampshire International Airport companies." Complaint at 3, n.3. That statement seems incorrect (and the government's adherence to that view is likely the major source of confusion in this litigation). Instead, that assessment relates exclusively to Precision Valley Aviation, Inc. See, e.g., Exhibit 4 to Hulick Affidavit (document no. 48-19) (IRS notice of assessment of TFRP for tax period ending June 30, 1994, against Hulick for Precision Valley Aviation in the amount of $485,713 - that is, the precise amount of the first of two assessments specified in paragraph 6 of the government's complaint). Compare Government's Response to Hulick's Interrogatories (document no. 48-35) (confirming that the Trust Fund Recovery Penalty for the tax quarters ending June 30, 1994, and for which Hulick is allegedly responsible is $485,713), ...