By: Eric J. Dostal
St. John's Law Student
American Bankruptcy Institute Law Review Staff
Recently, in J.J. Re–Bar Corp. v. United States (In re J.J. Re–Bar Corp.)[1] the Ninth Circuit held that the Anti–Injunction Act[2] does not bar the post-confirmation collection of a trust fund recovery penalty (“TFRP”)[3] from the responsible officers of a debtor corporation by the IRS.[4] The Ninth Circuit, relying on Davis v. United States[5] determined that because TFRP liability arises from officers’ willful conduct, such penalties are the obligations of the officers themselves and not the debtor corporation.[6] This case arose after the IRS assessed a TFRP against the Skokans, the corporate officers responsible for the company’s failure to remit certain “trust fund taxes–the tax withholdings from employee paychecks–to the government.”[7] The IRS chose to assess the TFRP against the responsible officers of the debtor after the debtor had confirmed its plan and paid its outstanding payroll taxes.[8] Seeking to halt the IRS’ collection efforts, J.J. Re–Bar “filed a motion to enforce . . . the Plan and to hold the IRS in contempt.”[9] Both the Bankruptcy Court and the Bankruptcy Appellate Panel ruled for the IRS.[10]