The opinion of the court was delivered by: Caldwell, District Judge.
This action arises pursuant to Section 6672 of the Internal
Revenue Code (26 U.S.C. § 6672), which imposes penalties for
failure of responsible persons to collect and pay over taxes to
the United States. Plaintiff, Dean A. Cook, filed a complaint
against the United States of America, to recover an amount paid
in partial satisfaction of a § 6672 assessment against him,
which he alleges was improperly administered.
The Government responded with a counterclaim against Cook to
enforce judgment and collect the balance of the assessment.
Additionally, the Government filed a third-party complaint
against defendants, Lawrence L. Cirillo and Nicholas
Spithogianis, to reduce to judgment assessments imposed on them
under § 6672. Cook and Cirillo, in turn, filed separate
cross-claims against Spithogianis, seeking indemnity or
contribution in the event judgment is entered against them.
Each allege that Spithogianis was the person responsible for
withholding taxes, and Cirillo contends that Spithogianis also
contracted to indemnify him.
Pending is the Government's motion to strike the cross-claims
of Cook and Cirillo on the grounds that this Court lacks
subject matter jurisdiction over them pursuant to Rule 12(h)(3)
of the Federal Rules of Civil Procedure. The Government's
central contention is that there is no federal common law or
statutory right to contribution or indemnity under § 6672.
II. Federal Right to Contribution or Indemnity under § 6672
It is well settled that an individual subject to a tax
assessment pursuant to § 6672 has no federal common law or
statutory right of action for contribution or indemnity against
another individual who may also be so liable. DiBenedetto v.
United States, 75-1 U.S. Tax Cas. para. 9503, 1974 WL 791
(D.R.I., 1974); Padalino v. United States v. Murray, et al.,
1989 WL 154322, 1989 U.S. Dist. LEXIS 13,543, 89-2 U.S. Tax
Cas. para. 9632 (D.C.N.J. 1989); Swift v. Levesque, 614 F. Supp. 172
(D.C.Conn. 1985); Rebelle v. United States, 588 F. Supp. 49
(M.D.La. 1984); Schoot v. United States, 664 F. Supp. 293
(N.D.Ill. 1987); Moats v. United States, 564 F. Supp. 1330
(W.D.Mo. 1983); Hanhauser v. United States, 85 F.R.D. 89
(M.D.Pa. 1979). The Government contends that neither Cook nor
Cirillo have asserted any independent grounds for this Court's
jurisdiction over those claims. "[I]t has been consistently
recognized in the federal courts that where an action is
patently without merit, a federal court may dismiss such an
action for want of subject matter jurisdiction." Carver v.
England, 599 F.2d 1055 (6th Cir. 1979); Duke Power Co. v.
Carolina Environmental Study Group, 438 U.S. 59, 70, 98 S.Ct.
2620, 2628, 57 L.Ed.2d 595 (1978); Studen v. Beebe,
588 F.2d 560, 566 (6th Cir. 1978).
A. Public Policy Considerations
First, regardless of the alleged existence of diversity or
ancillary jurisdiction in this matter, we are convinced that
there is a clearly defined public policy which disfavors
allowing claims of contribution or indemnity to interfere with
the tax collection process under § 6672. The majority of
jurisdictions express a genuine concern "to avoid complicating
the Government's action to collect the § 6672 penalty with
collateral litigation between the parties." Schoot, supra, 664
F. Supp. at 298. "The practice and procedures developed over the
years to test the validity of a § 6672 assessment were not and
are not designed for and should not be complicated by
collateral litigation that may be instituted by and between
various persons who may be determined to be `responsible
persons' in a particular case." Moats, supra, 564 F. Supp. at
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).
Clearly, the "statute serves as a collection device for the
government, and not as a source of a cause of action between or
among persons found to be `responsible' parties." Swift, supra,
614 F. Supp. at 173.
A `responsible persons' resolve to willfully fail
to collect such taxes may be weakened when faced
with the possibility of bearing all of the 100%
penalty than it would be if there was a right to
spread and diversify this burden or risk among the
group. The need for government action is obviated
if only one potentially liable person in a group
of potentially liable people acts properly. The
risk of bearing this penalty alone may bring that
one person to the forefront a little more readily,
and thus save the government the additional
Finally, any party liable under § 6672 must necessarily be
found to have "willfully" failed to collect or truthfully
account for and pay over taxes to the Government. § 6672(a).
Under the general principles of contribution and indemnity, a
person who acts willfully cannot seek contribution. Hanhauser,
supra, 85 F.R.D. at 92; Rebelle, supra, 588 F. Supp. at 51;
Continental, supra; Cohen v. United States, 75-1 U.S. Tax Cas.
para. 9391, at 86,967, 1975 WL 556 (E.D.Mich. 1975);
DiBenedetto, supra; Cage v. New York C. Railroad Co.,
276 F. Supp. 778 (W.D.Pa. 1967), aff'd, 386 F.2d 998 (3d Cir. 1967);
Rhoads v. Ford Motor Co., 374 F. Supp. 1317 ...