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The Complainant is DaimlerChrysler Corporation, of United States of America, represented by Abelman Frayne & Schwab, of United States of America.
The Respondent is Web4COMM SRL ROMANIA, of Bucharest, Romania, represented by Andrei Bulinga-Neagu, of Bucharest, Romania.
The disputed domain name <chrysler.ro> is registered with RNC.ro.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 1, 2006. On June 1, 2006, the Center transmitted by email to RNC.ro a request for registrar verification in connection with the domain name at issue. On June 2, 2006, RNC.ro transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. On June 8, 2006, the Center requested by email clarification from RNC.ro whether the language of the Registration Agreement is Romanian and whether the registrant had submitted in the Registration Agreement to the Courts in the location of the principle office of the registrar. On 9 June, 2006, RNC.ro transmitted by email to the Center its response confirming that the language of the Registration Agreement is Romanian, and that the registrant had not submitted in the Registration Agreement to the Courts in the location of the principle office of the registrar.
In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 20, 2006. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 21, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was July 11, 2006. The Response was filed with the Center on July 11, 2006.
The Center appointed Ms. Beatrice Onica Jarka as the sole panelist in this matter on August 21, 2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Panel considers that the language of the present proceeding should be English, although the Registrar of the disputed domain name has informed the Center that the language of the relevant registration agreement was Romanian.
- the Respondent has been involved as Respondent in several administrative proceedings in English before WIPO panels (see for eg OSRAM GmBh v. WEB4COMMSRL Romania, WIPO Case No. DRO2005-0004).
The Complainant is a famous automotive manufacturing company, incorporated in 1925, by Walter P. Chrysler as the Chrysler Corporation who has first adopted and used the CHRYSLER mark in 1924 in the United States in respect of motor vehicles.
The Complainant owns numerous registrations in the United States for CHRYSLER, or marks containing CHRYSLER, for a variety of goods and services.
Complainant owns a trademark registration for CHRYSLER no. 2R011189 in Romania dating to 1979. Complainant owns trademark registrations for CHRYSLER in most jurisdictions.
The Complainant also owns the domain name <chrysler.com> registered on June 16, 1993, which operates a website associated with its domain name chrysler.com providing information and services related to CHRYSLER branded products.
As a result of a long, continuous and extensive use, advertising, and promotion, the CHRYSLER trademark is among the most famous marks in the automotive industry and is renowned throughout the world, including in Romania.
Respondent has been involved as Respondent in different other cases before WIPO (see for eg under Factual Background above).
- Respondent has engaged in a pattern of registering domain names incorporating famous trademarks of others as domain names and the Complainant sites in support several WIPO Panel decisions in which Respondent has been found to have engaged in such conduct.
- it does not have any conventional relationship with the Complainant and therefore it did not conclude any “compromisory clause” with the Complainant.
The disputed Domain Name is registered with RNC.ro. Therewith the Respondent has accepted the Registration Agreement and the Domain Name Dispute Resolution Policy of the RNC.ro. Art. 32 of the Registration Rules and article 6 of the RNC.ro Registration Agreement together incorporate and thereby rend applicable to this dispute the Uniform Domain Name Dispute Resolution Policy endorsed and approved by ICANN.
It is the Complainant’s discretion to select the administrative dispute resolution provider from among those approved by ICANN (paragraph 4(d) of the Policy). The Center is one of those providers.
In addition, the Respondent is obviously familiar with the Policy and the proceedings (see Praktiker AG v. web4COMM SRL Romania, WIPO Case No. DRO2003-0001), and the Panel therefore concludes as other Panel in similar cases in which the Respondent was involved (see Beiersdorf AG v. Web4comm Srl Romania, WIPO Case No. DRO2005-0002) that the jurisdiction objection is merely filed in bad faith in an attempt to confuse the Panel and avoid filing a substantial reply to the allegations made by the Complainant.
For these reasons the Panel finds that the dispute is properly within the scope of the Policy and that the Panel has jurisdiction to decide the dispute.
It is undisputed that the Complainant has rights in the trademark CHRYSLER as it owns numerous registrations in the United States, Romania and most jurisdictions for CHRYSLER, or marks containing CHRYSLER.
The Complainant also owns the domain name <chrysler.com> registered on June 16, 1993, which operates a website associated with its domain name <chrysler.com> providing information and services related to CHRYSLER branded products.
The CHRYSLER trademark is among the most famous marks in the automotive industry and is renowned throughout the world, including Romania.
It is the opinion of the Panel that the Complainant has established a prima facie showing that none of the three circumstances establishing legitimate interests or rights apply. Having done so, the burden of proof on this element shifts to the Respondent to rebut the showing.
The Response consists of a claim that the Center has no jurisdiction in this case and contains no substantial facts. The Respondent has failed to invoke any circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the Domain Name.
In addition, the fact that the Domain Name does not resolve to any active webpage indicates, that before any notice to the Respondent of the dispute, Respondent has not made any use of, or preparations to use, the Domain Names in connection with a bona fide offering of goods or services.
The Panel therefore concludes that the Respondent has no rights or legitimate interests in the Domain Name.
The registration and use in any form of a famous trademark which belongs to somebody else, without proving any rights or legitimate interests in it, represents bad faith registration and use.
It is the Panel’s opinion that the Respondent knew about the fame of the CHRYSLER trademark in the world and in Romania when it registered it as a Romanian domain name, and as it did not have any rights and legitimate interests in this trademark, one can infer from this only that the disputed domain name was registered and further used in bad faith.
The disputed domain name also appears to contain a number of sponsored links from which it may reasonably be inferred that the Respondent is using the site to profit from confusion with the Complainant and to in effect free-ride on the fame of it’s mark.
In addition, the involvement of the Respondent in different WIPO proceedings as a Respondent for breaching others’ rights in famous trademarks, (see OSRAM GmbH, v. web4COMM SRL Romania, WIPO Case No. DRO2005-0004, Accor v. Catalin Alexandra Tibulca / WEB4COMM SRL Romania, WIPO Case No. DRO2005-0003, Auchan v. Web4comm Srl Romania, WIPO Case No. DRO2005-0001, Praktiker AG v. web4COMM SRL Romania, WIPO Case No. DRO2003-0001, Beiersdorf AG v. Web4comm SRL Romania, WIPO Case No. DRO2005-0002) represents a pattern of conduct of the Respondent, which is further indication of bad faith.
The Panel therefore finds the Respondent registered and is using the disputed domain name in bad faith.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <chrysler.ro> be transferred to the Complainant.

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Like Panel Issue No. 1—whether the parties agreed to arbitrate SCA’s sanctions claims—Panel Issue No. 2 is a question of arbitrability. See Howsam v. Dean Whitter Reynolds, Inc., 537 U.S. 79, 84 (2002); First Options of Chicago v. Kaplan, 514 U.S. 938, 941, 946-47 (1995). So, as discussed in Parts III.B.1 and III.B.2, the Court would presumably decide it independently—that is, without according deference to the Panel’s decision— were it necessary for it to decide it in the first place.
The Second Circuit and other courts have recognized that signatories may enforce under Sections 3 and 4 of the Federal Arbitration Act arbitration agreements against non-signatories whenever common-law principles of contract and agency would permit such enforcement, and that non-signatories may enforce arbitration agreements against signatories at least under an estoppel theory, and possibly under other theories of contract and agency. See, e.g., Ross v. American Express Co., 547 F.3d 137, 143 & n.3 (2d Cir. 2008); Ross v. American Express Co., 478 F.3d 96, 99 (2d Cir. 2007); Astra Oil Co. v. Rover Navigation, Ltd., 344 F.3d 276, 279-80 & n.2 (2d Cir. 2003); Thomson-CSF, S.A. v. American Arbitration Assoc., 64 F.3d 773, 776-80 (2d Cir. 1995). The Second Circuit likewise allows interlocutory appeals from the denial of Section 4 motions to compel arbitration, or Section 3 motions to stay litigation in favor of arbitration, brought by or against non-signatories. See, generally, 478 F.3d at 99.
Certain other circuits have held that nonsigatories may not invoke Section 3 or 4 based on an estoppel theory, or at least cannot appeal on an interlocutory basis the denial of an estoppel-based Section 3 or 4 application. See, e.g., DSMC Inc. v. Convera Corp., 349 F.2d 679, 683-84 (D.C. Cir. 2003) (then Roberts, J.); Re Universal Service Fund Tel. Billing Practice Litigation v.Sprint Communications Co., 428 F.3d 940, 945 (10th Cir. 2005) (limiting holding to whether Court of Appeals had appellate jurisdiction at interlocutory stage). These Courts have relied on Section 3’s and 4’s requirement that the relief sought must be “under” a written agreement to arbitrate, and their determination that an estoppel claim by a non-signatory is not one “under” a written agreement to arbitrate.
Whether Federal Arbitration Act Section 3 can ever mandate a stay sought by a nonsignatory to an arbitration agreement.

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MAYOR, ETC., OF BOROUGH OF RUTHERFORD.
Supreme Court of New Jersey.
Action on a contract by John Kehoe against the mayor and common council of the borough of Rutherford. Heard on a rule to show cause why a new trial should not be granted after order of nonsuit Rule discharged.
Argued June term, 1893, before BEASLEY, C. J., and MAGIE, GARRISON, and DIXON, JJ.
Addison Ely and S. B. Ransom, for plaintiff.
Geo. B. Luce, for defendant.
DIXON, J. On October 15, 1888, the plaintiff and defendant entered into a written contract, under seal, by which the plaintiff became bound to grade, work, shape, level, smooth, and roll Montrose avenue, in the borough of Rutherford, to its entire width, according to [27 A. 913] the established grade, commencing at Washington avenue, and ending at Pierpont avenue, and the defendant became bound to pay him therefor 65 cents per lineal or running foot.
Soon afterwards, the plaintiff began the work, and continued until it was discovered that some of the land to be graded under the contract was private property. Then, being forbidden by the owners to enter upon this property, the plaintiff stopped the work, by direction of the borough authorities, and concluded to abandon it in the meantime, he had been paid $1,850 of the contract price.
On this state of facts, he brought suit against the defendant, relying, in one count of his declaration, upon the breach of the special contract, and, in another, on the quantum meruit for the work done.
—thus showing the fair cost of the whole work required by the contract to be $5,044.
These calculations are, in every instance, based upon the testimony most favorable to the plaintiff; allowing him the highest estimates for what he had done, and reckoning the residue at the lowest. If his own estimates, or those of any single witness, were taken throughout, the result would be more to his disadvantage.
Upon the evidence thus presented, the plaintiff was nonsuited, and a rule allowed that the defendant show cause why a new trial should not be awarded.
The nonsuit was ordered upon the theory that the plaintiff could recover, for the work done, only such a proportion of the contract price as the fair cost of that work bore to the fair cost of the whole work required, and, in respect of the work not done, only such profit, if any, as he might have made by doing it for the unpaid balance of the contract price. Under this theory, his recovery for the work done was to be limited to such a proportion of $2,743 as 3,153 bears to 5,044, viz. $1,715; and as to the work not done, since it would cost him $1,891 to do it, while the unpaid balance of the price was only $893, no profit could be earned by doing it. Hence, it was considered that he had been overpaid to the extent of the difference between $1,850 and $1,715.
But the contention of the plaintiff was and is that, as he was prevented from completing the contract without fault on his part, he is entitled to the reasonable value of the work done, without reference to the contract price; and if this be the correct rule, undoubtedly the case should have gone to the jury. But, at the very threshold, we are confronted with this possible result of the application of the rule contended for: That the plaintiff might recover $3,153 for doing about three-fifths of the work, while, if he had done it all, he could have recovered only $2,743. The absurdity of the result condemns the application of such a rule.
Circumstances may exist in which, for work done under a special contract, the plaintiff will recover its fair value. Thus, if the contract be within the prohibition of the statute of frauds, (McElroy v. Ludlum, 32 N.J. Eq. 828;) or if, the work being only partly done, that which is done, or that which is left undone, cannot be measured, so as to ascertain its price at the rate specified in the contract, (Derby v. Johnson, 21 Vt. 17,) or, in the absence of evidence to the contrary, it may be assumed that the rate specified is a reasonable one, (U. S. v. Behan, 110 U. S. 338, 4 Sup. Ct. Rep. 81.) But, generally, when it can be determined what, according to the contract, the plaintiff would receive for that which he has done, and what profit he would have realized by doing that which, without fault, he has been prevented from doing, then these sums become the legal, as they are the just, measure of his damages. He is to lose nothing, but, on the other hand, he is to gain nothing, by the breach of the contract, except as the abrogation of a losing bargain may save him from additional loss.
This is the rule applied in the case of Masterton v. Mayor, etc., of Brooklyn, 7 Hill, 61, where the plaintiff was to receive $271,600 for 88,819 feet of marble, and after he had delivered 14,779 feet the defendant stopped him. He was awarded the contract price for the 14,779 feet, and the profit which he would have made by delivering the balance. The same principle was declared by this court in Boyd v. Meighan, 48 N.J. Law, 404, 4 Atl. Rep. 778, and accords with the fundamental doctrines laid down by Mr. Sedgwick, (1 Sedg. Dam.  432:) First, that the plaintiff must show himself to have sustained damage, or, in other words, that actual compensation [27 A. 914] will only be given for actual loss; and, second, that the contract itself furnishes the measure of damages.
Sometimes it has been held that if the contract binds the defendant to pay otherwise than in money, and he refuses, then the plaintiff may recover the cash value of what he has done or delivered. Ankeny v. Clark, 148 U. S. 345, 13 Sup. Ct. Rep. 617. But in New Jersey the rule is that he shall recover the cash value of what he was to receive, (Hinchman v. Rutan, 31 N.J. Law, 496,) thus maintaining the standard fixed by the contract.
Some of the obscurity surrounding this subject springs, I think, from a failure to distinguish between the right to sue upon the quantum meruit, when the contract remains uncompleted through the fault of the defendant, and the measure of damages in such a state of facts. It is well settled that if the plaintiff has fully performed his contract, so that nothing remains but the duty of the defendant to pay, the plaintiff may declare upon the quantum meruit, ignoring the special contract, and the plaintiff's readiness and offer to perform are to this extent, but to this extent only, (Shannon v. Comstock, 21 Wend. 457,) equivalent to actual performance. In both cases, however, the amount which the plaintiff deserves to recover is regulated by the contract. The refusal of the defendant to pay, after all the work is done, is no less a breach of the contract than is his refusal to permit the plaintiff to do all that the bargain entitled him to do; but neither breach does or ought to put the parties in the position they would have occupied if no contract had been made. In both cases, what is done was done under the contract, and should be paid for accordingly.
If, on partial performance, the plaintiff confines himself to the common counts, he excludes by his pleading any claim for what he has not performed, but he does not thereby enhance his deserts for what he has performed; and therefore, in order to obtain complete justice on breach of a profitable bargain, he must resort to a special count.
Our conclusion is that, as the plaintiff had been paid up to the full measure of the contract for the work done, and could have made no profit by its further prosecution, the nonsuit was substantially right.
The rule to show cause is discharged.
Original Item: "Kehoe v. Rutherford"

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(1) For sales and use tax purposes, retailers may use a cash basis, an accrual basis, or any generally recognized accounting basis that correctly reflects the operation of their business. Retailers who wish to use an accounting system to report tax that is not on a pure cash or accrual basis or that is not a commonly recognized accounting system should obtain prior written approval from the comptroller.
(2) Paragraph (1) of this subsection does not apply to the reporting of sales tax on rentals and leases of tangible personal property. See §3.294 of this title (relating to Rentals and Leases of Taxable Items) for the accounting of rentals and leases.
(1) Credit sales include all sales in which the terms of the sale provide for deferred payments of the purchase price. Credit sales include installment sales, sales under conditional sales contracts and revolving credit accounts, and sales by a retailer for which another person extends credit to the purchaser under a retailer's private label credit agreement.
(2) Sales tax is due on insurance, interest, finance charges, and all other service charges incurred as a part of a credit sale unless these charges are stated separately to the customer by such means as an invoice, billing, sales slip, ticket, or contract.
(3) Tax is to be reported on a credit sale based upon the accounting method that the retailer uses.
(A) If the retailer is on an accrual basis, the entire amount of tax is due and must be reported at the time the sale is made.
(B) If the retailer is on a cash basis of accounting, the payment received from the customer includes a proportionate amount of tax, sales receipts, and may also include finance charges. Tax must be reported based upon the actual cash collected during the reporting period, excluding separately stated finance charges.
(C) If the retailer uses an accounting basis that is not a pure cash or accrual basis, tax must be reported in a consistent manner that accurately reflects the realization of income from the credit sales on the retailer's books and records.
(c) Transfer or sale of sales contracts and accounts receivable. A retailer may sell, factor, or assign to a third party the retailer's right to receive all payments due under a credit sale. At the time the contract or receivable is sold, factored, or assigned, the tax becomes due on all remaining payments. The retailer is responsible for reporting all remaining tax due under the credit sale to the comptroller in the reporting period in which the contract or receivable is sold, factored, or assigned. No reduction in the amount of tax to be reported and paid by the retailer is allowed if the transfer to the third party is for a discounted amount. This section does not apply to a seller's assignment or pledge of contracts or accounts receivable to a third party as loan collateral.
(1) Any portion of the sales price of a taxable item that the retailer or private label credit provider cannot collect is considered to be a bad debt.
(A) A retailer is not required to report tax on any amount that has been entered in the retailer's books as a bad debt during the reporting period in which the sale was made, and that will be taken as a deduction on the federal income tax return during the same or subsequent reporting period.
(B) A retailer is entitled to a credit for tax reported and paid on an account later determined to be a bad debt. A retailer may take a deduction on the retailer's report form, or obtain a refund from the comptroller, in the reporting period in which the retailer's books reflect the bad debt. Deductions and refunds due to bad debts are limited to four years from the date the account is entered in the retailer's books as a bad debt.
(C) A retailer who extends credit to a purchaser on an account that is later determined to be a bad debt, a person who extends credit to a purchaser under a retailer's private label credit agreement on an account that is later determined to be a bad debt, or an assignee or affiliate of either who extends credit on an account that is later determined to be a bad debt, is entitled to a credit or refund for the tax paid to the comptroller on the bad debt.
(2) The amount of the bad debt may include both the sales price of the taxable item and nontaxable charges, such as finance charges, late charges, or interest that were separately billed to the customer. A deduction may only be claimed on that portion of the bad debt that represents the amount reported as subject to tax. In determining that amount, all payments and credits to the account may be applied ratably against the various charges that comprise the bad debt, except as provided by paragraph (3) of this subsection.
(3) A retailer, private label credit provider, or assignee or affiliate may not deduct from the amount subject to tax to be reported the expense of collecting a bad debt, or the amount that a third party has retained or which has been paid to a third party for the service of collecting a bad debt.
(I) the unpaid portion of the assigned sales price.
(ii) the comptroller approves the procedures used.
(B) a change in the taxpayer's business operations.
(7) A person who is not a retailer may claim a credit or reimbursement authorized by paragraph (1)(C) of this subsection only for taxes imposed by Tax Code, §151.051 or §151.101.
(8) For purposes of this section, "affiliate" means any entity or entities that would be classified as a member of an affiliated group under 26 U.S.C. §1504.
(9) If a retailer or other person later collects all or part of an account for which a bad debt deduction or write-off was claimed, the amount collected must be reported as a taxable sale in the reporting period in which such collection was made.
(10) Credit or installment sales may not be labeled as bad debts merely for the purpose of delaying the payment of the tax.
(1) When taxable items upon which the retailer or other person has paid tax are repossessed, the retailer or other person is allowed a credit or deduction for that portion of the actual purchase price that remains unpaid. The deduction must not include any nontaxable charges that were a part of the original sales contract. Any payments that the purchaser made prior to repossession must be applied ratably against the various charges in the original sales contract.
(2) A retailer or other person may not deduct from the tax to be reported the expense of collecting an account receivable, or the amount that a third party has retained or that has been paid to a third party for the service of collecting an account or repossessing or selling a repossessed item.
(H) the unpaid portion of the sale price assigned.
(4) Sales tax is due on the sale of a repossessed item, irrespective of whether a vendor, mortgagee, secured party, assignee, trustee, sheriff, or an officer of the court has sold the item, unless the sale is otherwise exempt. If the vendor, mortgagee, secured party, assignee, trustee, sheriff, or officer of the court does not collect the tax, the purchaser must remit the tax directly to the comptroller.
(f) Interest on sales tax. This section will refer to the terms "interest" and "time price differential" as interest. The term "credit" includes all deferred payment agreements.
(1) Sellers on a cash basis of accounting who sell taxable items on credit and charge interest on the amount of credit extended, including sales tax, are required to remit to the comptroller a portion of the interest that has been collected on the state and local taxes.
(2) If the amount of interest charged on the tax is 18% or less, the seller must remit to the comptroller one-half of the interest charged on the tax.
(3) If the amount of interest charged on the tax is greater than 18%, the seller must remit the amount of interest charged less 9%. For example, 21% charged less 9% deduction equals 12% interest remitted. A seller will not be allowed the 9% deduction if the interest rate charged on sales tax differs from the interest rate charged on the sales price of the taxable item.
(4) In determining the amount of interest to be remitted to the comptroller, a seller does not need to calculate the interest on each individual account. A formula for the calculation may be used if the formula correctly reflects the amount of interest collected. The formula will be subject to verification upon audit of the taxpayer's records.
(5) Except for the provisions of Texas Tax Code, §151.423 and §151.424, all reporting, collection, refund, and penalty provisions of Texas Tax Code, Chapter 151, including assessment of penalty and interest, apply to interest due.
(g) Trade-ins. In this subsection, a trade-in is considered as a taxable item that is being used to reduce the purchase price of another taxable item.
(1) The sales price of a taxable item does not include the value of a trade-in that a seller takes as all or part of the consideration for a sale of a taxable item of the same type that is normally sold in the regular course of business. For example, sales tax will be due only on the difference between the amount allowed on an old piano taken in trade and the sales price of a new piano.
(2) The sales price of a taxable item does include the value of a trade-in that a seller takes as all or part of the consideration for the sale of a taxable item, if the trade-in is a different type from the type normally sold in the regular course of business. For example, a seller of pianos who takes a desk in trade as part of the sales price of a piano would collect sales tax on the retail sales price of the piano without any deduction for the value of the desk. In this situation, the seller and buyer are considered to be bartering. However, if a seller of pianos is also a seller of desks, the value of the desk would be allowed as a trade-in.
(3) Persons who remove items from a tax-free inventory for use as a trade-in owe sales tax on the cost price of the items. If both parties to a transaction remove items from a tax-free inventory to trade for other items that each party will use, the transaction will be regarded as barters by both parties. Each party to the barter will be required to collect sales tax on the retail sales price of the item being transferred. For example, a retailer of drill pipe trades pipe to a retailer of aircraft in exchange for an aircraft. Both retailers are trading the respective items for use, not resale. The pipe retailer must collect sales tax on the retail sales price of the pipe. The aircraft retailer must collect sales tax on the retail sales price of the aircraft.
(4) See §3.336 of this title (relating to Sales of Gold, Silver, Coins, and Currency) for information on persons who barter for taxable items with gold, silver, diamonds, or precious metals.
(h) Tax Code, §111.064, provides that interest will be paid on tax amounts found to be erroneously paid and claimed on a request for refund or in an audit. See also §3.325 of this title (relating to Refunds, Interest, and Payments Under Protest).
(1) Tax paid on an account that is later determined to be uncollectible and written off as a bad debt for federal tax purposes is not tax paid in error and does not accrue interest.
(2) A request for refund, or an overpayment of tax in an audit, for a report period due before January 1, 2000, does not accrue interest.


When a Florida resident passes away, regardless of whether he or she had a valid will, a person will be appointed to act as personal representative to administer the estate of the deceased. If the deceased executed a valid will, he or she may have named the personal representative in the will, or if the personal representative was not specifically named, the power of appointing the personal representative may have been granted to a named individual. See Fla. Stat. § 733.301(1)(a)(1). If the deceased either died without a will, or had a will but neither named a personal representative, nor granted the power to appoint a personal representative, then the personal representative is appointed in accordance with the order of preference set forth in Florida Statute § 733.301. See Fla. Stat. § 733.301(1). For a person who dies without a will, the personal representative will be “[t]he surviving spouse,” “[t]he person selected by a majority in interest of the heirs,” or “[t]he heir nearest in degree. If more than one applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(b). For a person who died with a will which did not specify a personal representative or grant someone else the power to name the personal representative, the personal representative will be “[t]he person selected by a majority in interest of the persons entitled to the estate,” or “[a] devisee under the will. If more than one devisee applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(a).
1.	Adjudication that the personal representative is incapacitated.
2.	Physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
3.	Failure to comply with any order of the court, unless the order has been superseded on appeal.
4.	Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required.
5.	Wasting or maladministration of the estate.
6.	Failure to give bond or security for any purpose.
7.	Conviction of a felony.
8.	Insolvency of, or the appointment of a receiver or liquidator for, any corporate representative.
9.	Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in th[e] code.
10.	Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative.
11.	Removal of domicile from Florida, if domicile was a requirement of initial appointment.
See Fla. Stat. § 733.504. If any of the foregoing causes are present, a person may seek removal of the personal representative “in addition to any penalties prescribed by law. See id.
To initiate removal of a personal representative, the person seeking removal must file a petition for removal in the court that has jurisdiction of the administration. See Fla. Stat. § 733.505. Either the court or an interested person may initiate removal proceedings. Fla. Stat. § 733.506 (2002). An “interested person” is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” Fla. Stat. § 731.201(23)(2013). If the court decides to remove the personal representative, “the court shall appoint a personal representative or shall appoint a curator to serve until a successor personal representative is appointed.” See Fla. Stat. § 733.5061.
If you or someone you know is interested in appointing, removing, or acting as a personal representative, please do not hesitate to contact the experienced estate planning and probate litigation attorneys at Chepenik Trushin LLP who are ready, willing, and able to take care of all your estate planning and estate litigation needs.


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David Ewert, teacher and churchman, was born on December 5, 1922, to David D. Ewert (1894-1989) and Margaretha Wiebe (1900-2000) in Alexanderhof, Memrik, south Russia (now Ukraine), the second of four children (John, David, Margaret, and Abe). David married Lena Hamm on October 12, 1944, in La Glace, Alberta, Canada. Lena was born on March 19, 1923 to Martin M. Hamm (1899-1982) and Anna Warkentin (1896-1953) in Schoenau, Zagradovka, south Russia (now Ukraine). Five children were born to David and Lena: Eleanor, Marianne, Ernest, Grace and Doreen. David died in Abbotsford, British Columbia, Canada on April 23, 2010, where he is buried.
David’s family, along with many other Mennonite families, immigrated to Canada in 1926 with hopes of brighter future, as Stalin’s new religion-less society and farm collectivization program began to spread across Russia. The long tradition of Christian faith, hard work, and private enterprise, made the prospect of Soviet-style communism difficult for Mennonite families to accept. Once in Canada, the family settled on a farm near Coaldale, Alberta in1930, after short periods in Main Centre, Saskatchewan and in Risor, Ontario, near Kapuskasing. The Coaldale farm was his home through grade school, Bible school, and until David left to get married and begin his teaching career at age 21 (1944).
Prior to his marriage to Lena, David worked on the family farm and studied at the Coaldale Bible School (1939-1942), the Winkler Bible School (1942-1943), and Prairie Bible Institute (1943-1944). After his first teaching assignment at the La Glace Bible School (1944-1946), David and Lena moved to Hepburn, Saskatchewan, for one year (1946-1947), where David finished high school (grades 11 and 12) and taught several classes at the Hepburn Bible School.
David’s post-secondary education began in Vancouver at the University of British Columbia. After one year at UBC (1947-1948), David agreed to teach Bible at the Coaldale Bible School (1948-1952), returning to UBC to study liberal arts during the summer sessions. He graduated with a BA degree in 1951.
Accepting an invitation to teach at the Mennonite Brethren Bible College (MBBC) in Winnipeg, David traveled to Chicago for Wheaton Graduate School’s 1952 summer session, beginning a year-long preparation for college teaching. After the summer session, the family moved from Chicago to Toronto, where David spent the academic year 1952-1953 at Central Baptist Seminary. He graduated with a B.D. degree in 1953 (thesis: “The Principles of Sanctification as outlined in the book of Romans”) and began teaching at MBBC in the fall of 1953, after another summer session at Wheaton.
During the next nineteen years (1953-1972), David taught Bible at MBBC in both German and English, while continuing to take summer school classes, extension classes, and weekend classes in Winnipeg, St. Paul, St. Louis, and Chicago. He graduated with an MA degree in Biblical Literature in 1956 from the Wheaton Graduate School (thesis: “The Word Chesedh in the Old Testament”). In 1961, he graduated from Luther Theological Seminary in St. Paul, MN with an MTh degree (thesis: “The Christology of the Apocalypse”). After completing most of the requirements for a doctorate at the Luther School of Theology in Chicago, David came to an impasse with his advisor during the 1966 summer session and decided to abandon the program. The next year, during his sabbatical year (1967-1968), he moved his family to Montreal and started another doctoral program at McGill University. Taking a one-year leave of absence from MBBC, the family spent a second year in Montreal, graduating with a PhD degree in New Testament in 1969 (dissertation: “The Spirit of the Age to Come”).
After his long teaching assignment at MBBC came to an end in 1972, David moved to the US and taught there during the next ten years. He taught New Testament at Eastern Mennonite Seminary in Harrisonburg, Virginia (1972-1975) and Mennonite Brethren Biblical Seminary (MBBS) in Fresno, California (1975-1982). He completed his professional career by returning to Winnipeg and serving as president of MBBC (1982-1988). During these years he also taught short courses in India, South America, and Europe. In retirement, he lectured as visiting professor in Africa, Europe, and again for two years in Fresno at MBBS (1990-1992). David and Lena made their retirement home in Abbotsford, British Columbia, where he continued taking speaking and teaching assignments. He was a regular lecturer at the annual Bakerview Bible Conference in Abbotsford right up to the year of his death in 2010.
In a ministry that spanned more than 50 years, David taught and preached with considerable energy and focus, continually in demand to speak at churches, conferences, and special meetings. He always spoke from prepared, type-written manuscripts, many of which are now preserved in the fonds described below. He published a great deal: over twenty books and several hundred articles, mostly (but not exclusively) for Mennonite Brethren church magazines, such as, Mennonite Brethren Herald, The Christian Leader, and Die Mennonitische Rundschau. See fonds description below for full list. To recognize his service in the Mennonite Brethren Church, he was awarded an honorary doctorate by MBBS in 1999.
Starting in 1970, David served for two decades on the Board of Reference and Counsel of the bi-national US and Canadian MB Churches, helping to shape in large measure the bi-annual study conferences that dealt with doctrinal and ethical issues. Biographers, Bruce Guenther and Kevin O’Coin, summed up David’s contribution this way: “As a highly respected Bible teacher, preacher, and scholar, Ewert defined and embodied the convictions of the Mennonite Brethren Church. . . . His influence helped to move Mennonite Brethren away from both a particular, and often exclusive German-Russian ethnicity, and from aspects of American fundamentalism that some had found attractive” (Harold Jantz, ed., Leaders who shaped us, 232).
More details of David Ewert’s life and legacy can be found in the following biographies: A.J. Dueck, H.J. Giesbrecht, and V.G. Shillington, The Bible and the Church: essays in honour of Dr. David Ewert (Winnipeg: Kindred, 1988); David Ewert, A Journey of Faith: an autobiography (Winnipeg, Kindred, 1993); David Ewert, Mennonite Country Boy (Abbotsford: Heartbeat, 2004); Bruce Guenther and Kevin O’Coin, “David Ewert: Bible teacher and scholar for the church” in Leaders who shaped us: Canadian Mennonite Brethren: 1910-2010, edited by Harold Jantz (Winnipeg: Kindred, 2010).
Following David’s death, his family determined that David’s personal papers were to be deposited at the Centre for Mennonite Brethren Studies, Winnipeg. On July 12, 2011, David and Betty Giesbrecht delivered six banker boxes of David Ewert’s sermons and lectures to the Centre (see David Giesbrecht, “Dr. David Ewert’s Personal Papers Donated to CMBS” Mennonite Historian 37/3 [Sept 2011]: 2, 11).
The David Ewert fonds consists of six series: Course syllabi and course lecture manuscripts, Unpublished manuscripts, Bibliography and annual publication & speaking record, Lecture series, Topical papers and presentations, and Sermons. This fonds documents well the impressive productivity of David’s teaching and preaching ministry among the Mennonite Brethren.
Description created by Jon Isaak, June 2012.
I. Course syllabi and course lecture manuscripts.
This series consists of course syllabi and lecture manuscripts (German and English) prepared by David Ewert and used in various teaching settings.
The Bible courses begin the series and are arranged in canonical order. The other courses are not arranged in any particular order.
Finding aid: Vol. 1352, No. 1-38; Vol. 1353, No. 1-34.
This series consists of unpublished manuscripts (German and English) prepared by David Ewert.
The manuscripts are not arranged in any particular order.
Finding aid: Vol. 1354, No. 1-32.
III. Bibliography and annual publication & speaking record.
This series consists of publication, speaking, and academic records.
The files are not arranged in any particular order.
Finding aid: Vol. 1354, No. 33-38.
This series consists of lecture manuscripts given at various conferences and lecture series.
The lecture series are not arranged in any particular order, except for the last half of the series where the conferences are identified by name and date; these are arranged in chronological order.
Finding aid: Vol. 1355, No. 1-27.
V. Topical Papers and Presentations.
This series consists of manuscripts of various papers and presentations on biblical and theological topics.
The presentations are arranged in alphabetical order by title.
Finding aid: Vol. 1356, No. 1-93.
This series consists of sermon manuscripts (German and English) preached in various congregations and settings.
The sermons are arranged in canonical order.
Sometimes the manuscript is annotated with the names of the congregations and the years in which it was given; in these cases, the last occasion is noted in the file list.
1. Introduction to Biblical Studies. -- [198-?].
2. Introduction to the Bible: OT World. -- [198-?].
3. OT Text and Canon II. -- [198-?].
4. Canon and Text of NT III. -- [198-?].
5. Ancient Versions of the Bible IV. Establishing the best Text V. -- [198-?].
6. The English Bible VI. -- [198-?].
7. New Testament Backgrounds I. -- [199-].
8. The Roman World II. -- [199-].
9. NT Backgrounds III. -- [199-].
10. NT Backgrounds IV. -- [199-].
11. Biblical Backgrounds V. -- [199-].
12. Markus I. -- [1989?].
13. Markus II. -- [1989?].
14. Advanced Greek Grammar and Exegesis: Mark 1-3. -- 1990.
15. Advanced Greek Grammar and Exegesis: Mark 4-5. -- 1990.
16. Advanced Greek Grammar and Exegesis: Mark 6. -- 1990.
17. Advanced Greek Grammar and Exegesis: Mark 7-8. -- 1990.
18. Textual Criticism and Greek Exegesis: Mark 9-10. -- 1991.
19. Textual Criticism and Greek Exegesis: Mark 11-13. -- 1991.
20. Textual Criticism and Greek Exegesis: Mark 14. -- 1991.
21. Textual Criticism and Greek Exegesis: Mark 15-16. -- 1991.
22. Synoptic Gospels I. -- [198-?].
23. Synoptic Gospels II. -- [198-?].
24. Synoptic Gospels III. -- [198-?].
25. Synoptic Gospels IV. -- [198-?].
26. Synoptic Gospels V. -- [198-?].
27. Synoptic Gospels VI. -- [198-?].
28. Synoptic Gospels VII. -- [198-?].
29. Synoptic Gospels VIII. -- [198-?].
30. Parables of Jesus I. -- [199-].
31. Parables of Jesus II. -- [199-].
32. The Sermon on the Mount. -- [198-?].
33. Apostelgeschichte I. -- [199-?].
34. Apostelgeschichte II. -- [199-?].
35. Apostelgeschichte III. -- [199-?].
36. I Corinthians 1-6. -- [199-].
37. I Corinthians 7-12. -- [199-].
38. I Corinthians 13-16. -- [199-].
1. I Korinther I. -- [1990?].
2. I Korinther II. -- [1990?].
3. Greek Exegesis: II Corinthians. -- 1970.
4. Greek Exegesis: Galatians I. -- [197-?].
5. Greek Exegesis: Galatians II. -- [197-?].
6. Prison Epistles: Ephesians I. -- [199-].
7. Prison Epistles: Ephesians II. -- [199-].
9. Prison Epistles: Philippians. -- [199-].
10. I Thessalonians I. -- [199-].
11. I Thessalonians II. -- [199-].
12. II Thessalonians. -- [199-].
14. Pastoral Epistles: I Timothy (German). -- [195-].
15. Pastoral Epistles: I Timothy I. -- [197-].
16. Pastoral Epistles: I Timothy II. -- [197-].
17. Pastoral Epistles: Titus. -- [198-].
18. I John. -- [198-?].
19. Offenbarung I. -- [198-?].
20. Offenbarung II. -- [198-?].
21. Offenbarung III. -- [198-?].
22. Apocalypse I. -- [198-].
23. Apocalypse II. -- [198-].
24. Apocalypse III. -- [198-].
26. Apocalypse V. -- [198-].
27. Hermeneutik I. -- [199-].
28. Hermeneutik II. -- [199-].
29. Early Christian History and Thought I. -- 1974.
30. Early Christian History and Thought II. -- 1974.
31. Early Christian History and Thought III. -- 1974.
32. The Family in Biblical Perspective. -- 1979.
33. History of Missions I. -- [196-].
34. History of Missions II. -- [196-].
1. The Early Church: Studies in Acts I. -- [200-?].
2. The Early Church: Studies in Acts II. -- [200-?].
3. The Early Church: Studies in Acts III. -- [200-?].
4. The Early Church: Studies in Acts IV. -- [200-?].
5. The Early Church: Studies in Acts V. -- [200-?].
6. The Early Church: Studies in Acts VI. -- [200-?].
7. Der Heilige Geist im Neuen Testament. -- [199-].
8. Matthew Manuscript. -- [200-].
9. Gospel Vignettes: Studies of Selected texts from Matthew’s Gospel. -- [200-].
11. Das Ende aller Dinge: Ein Versuch die Eschatologie des Neuen Testaments zu verstehen. -- [199-?].
13. Exodus, Leviticus, Numbers, Deuteronomy. -- [200-?].
14. Joshua, Judges, Ruth, I Samuel, II Samuel. -- [200-?].
15. Old Testament History: I Kings, II Kings. -- [200-?].
16. Verstehst du auch was du liesest? Eine Handreichung zur biblischen Hermeneutik. -- [199-?].
17. NT Theology: Introduction to theology. -- [200-?].
18. NT Theology: The God of the NT I. -- [200-?].
19. NT Theology: Christ, the Son of God II. -- [200-?].
20. NT Theology: The Holy Spirit of God III. -- [200-?].
21. NT Theology: God’s Salvation in Christ IV. -- [200-?].
22. NT Theology: The Church, the new People of God V. -- [200-?].
23. NT Theology: The final triumph of God VI. -- [200-?].
24. Eschatology: the Last Days I. -- [199-?].
25. Eschatology: Signs of the times and tribulation II/III. -- [199-?].
26. Eschatology: Antichrist V (no IV). -- [[199-?].
27. Eschatology: The Parousia VI. -- [199-?].
28. Eschatology: The Resurrection VII. -- [199-?].
29. Eschatology: The Millennium VIII. -- [199-?].
30. Eschatology: Eternal Punishment IX. -- [199-?].
31. Eschatology: The Blessed Hope X. -- [199-?].
32. Eschatology: Waiting for the Parousia and “death” XI. -- [199-?].
33. Academic Records. -- 1939-2000.
34. Bibliography of David Ewert. -- 1967-2000.
35. Publication and speaking record by year, with related correspondence. -- 1976-2009.
36. Correspondence with CMBS regarding publication of autobiography. -- 1992-1993.
37. Two appreciation events, retirement and honorary doctorate. -- 1988, 1999.
38. Appreciation note and letter. -- 1964, 1981.
1. How our Bible came to us, 5 lectures. -- [198-?].
2. Literary aspects of the Bible, 2 lectures. -- [199-?].
3. History of the Bible, 4 lectures. -- [198-?].
4. Four literary genres of the Bible, 4 lectures. -- [198-?].
5. The Bible in translation, 5 lectures. -- [199-?].
6. Markus, 6 Vorträge. -- [198-?].
7. Der Galaterbrief, 8 Vorträge. -- [197-?].
8. I Corinthians 12-16, 6 lectures. -- [198-?].
9. I Timothy, 6 lectures. -- [198-].
10. The book of Revelation, 5 lectures. -- [198-?].
11. Eschatology and the Parousia, 2 lectures. -- [199-?].
12. Bakerview Bible Conference Lectures on I Cor 1-5, 6 lectures. -- 1993.
13. Apocalypse lectures in German, 4 lectures. -- 1996.
14. Bakerview Bible Conference Lectures on I Cor 6-11, 5 lectures. -- 1996.
15. Bakerview Bible Conference Lectures on The Kingdom of God (Mark), 6 lectures. -- 1997.
16. Bakerview Bible Conference Lectures on The Passion Narrative (Mark), 6 lectures. -- 1998.
17. Columbia Bible College Lectures on Ethics, 4 lectures. -- 1998.
18. Bakerview Bible Conference Lectures on Paul’s letter to the Galatians, 6 lectures. -- 1999.
19. Bakerview Bible Conference Lectures on Revelation 1-7, 6 lectures. -- 2000.
20. Bakerview Bible Conference Lectures on Revelation 8-15, 6 lectures. -- 2001.
21. Bakerview Bible Conference Lectures on Revelation 17-22, 6 lectures. -- 2002.
22. Deutsche Bibel Konferernz, Die Gemeinde Jesu Christi im Lichte der Apostelgeschichte, 6 lectures. -- 2003.
23. Deutsche Bibel Konferenz, I Thessalonicher, 6 lectures, plus two earlier lectures. -- 2004.
24. Bakerview Bible Conference Lectures on I Thessalonians, 3 lectures. -- 2005.
25. Bakerview Bible Conference Lectures on I Peter, 3 lectures. -- 2007.
26. Bakerview Bible Conference Lectures on Revelation 1-7, 3 lectures. -- 2009.
27. Bakerview Bible Conference Lectures on Revelation 8-15, 3 lectures. -- 2010.
2. Acts, the conversion of Paul. -- [196-?].
3. Amos, 3 presentations. -- [200-?].
4. Anabaptist hermeneutics. -- 2000.
5. Apostolic understanding of the church, The. -- 2003.
6. Approach to the current charismatic movement, An. -- 1971.
7. Authority of the Bible. -- 2004.
8. Baptismal typology in the early church. --1968.
9. Bible school movement, The. -- 2005.
10. Biblical canon, The. -- 2009.
11. Biblical scholar looks at creation, A. -- 1976.
12. Birth of Jesus, the Christ, The. -- 2005.
13. Canadian conference of Mennonite Brethren, The. -- 2001.
14. Christian baptism. -- 2008.
15. Christ’s final triumph. -- [200-].
16. Church in the plan of God, The. -- 2003.
17. Coaldale revisited. -- 1993.
18. Collection for the Christian poor in Judea, II Cor 8-9, The. -- [197-?].
19. Coming of the Lord, The. -- 1996.
19a. Comprehensive exams (PhD); Luther School of Theology, Chicago. -- 1964.
20. Confessions of faith. -- [200-].
21. Continuing education. -- [199-?].
22. Continuity and discontinuity between the two testaments. -- 2000.
23. Death of my brother John, The. -- 2002.
24. Demut [humility] in the NT. -- [1961?].
25. Discerning the Spirits. -- 1998.
27. English Bible, The. -- 1997.
28. English Bible: which one?, The. -- [199-].
29. Ethical interpretation (Pauline). -- 1961.
30. Exegesis of Mark 7:1-15. -- [1956?].
31. Franz, Jacob H. (1913-1978). -- [200-].
32. From the first to the twentieth century. -- [199-].
33. Funeral sermons (6 sermons). -- [200-].
33a. Gerechtigkeit Gottes, Die. -- 1964.
34. German Bible, The. -- [196-].
35. Gifts of the Spirit, The. -- [200-].
36. Gospel of salvation, The. -- 2009.
41. How our Bible came to us, 2 lectures. -- [198-?].
43. Installation as president of MBBC. -- 1982.
44. Interpretation of the book of Revelation. -- [198-?].
45. Israel in the history of salvation. -- [200-?].
47. Lehrdienst in der Gemeinde, Der. -- 1999.
48. Lena’s 80th birthday. -- 2003.
49. Lessons from an early church manual. -- [199-?].
50. Living with the Bible. -- 2008.
51. Lord’s Day, The. -- 2008.
52. Lord’s Prayer, The. -- 1962.
53. Luther, Martin, and his Bible. -- [2001?].
55. Marriage papers and vows (for all 5 children). -- 1970-2003.
56. Mennonite Brethren Bible College (MBBC): the early years. -- 1994.
57. Mennonite Brethren: People of the Bible. -- 2007.
59. New Birth: what is it?, The. -- 2001.
60. New Testament church in its relationship to the Old Testament covenant people, The. -- 1955.
61. New Testament in writing, The. -- 2006.
63. Pauline backgrounds. -- 1961.
64. Personal reflections. -- 1988. -- 1993.
65. Phenomenology of the Bible, The. -- [199-?].
66. Piety in college life. -- [196-?].
67. Perseverance of believers. -- [1956?].
68. Place of women in the church, The. -- [1980?].
69. Preparing teachers at the seminary. -- [197-?].
70. Presidential letters, letters written to constituency as president of MBBC. -- 1982-1988.
71. Preach the Word. -- [198-].
72. Protestant Reformation, The. -- [199-?].
73. Reading and writing of memoires. -- 1993.
74. Renewal of inner life. -- [199-?].
75. Role of women in church ministry, The; correspondence: D. Ewert to K. Neufeld. -- 2006.
76. Schools and missions. -- 1984.
77. Shaping of MB theology, The. -- 2000.
78. Significance of John the Baptist in God’s plan of salvation, The. -- 2005.
80. Symbolic use of water in the OT. -- [1964?].
81. Theological and ethical issues faced by the MB church in the last fifty years. -- 2006.
82. Transmission of OT text. -- [200-?].
83. Trips to USSR and Russia. -- 1990. -- [1997?].
84. Uniqueness of Christian ethics. -- [197-?].
85. Unity and diversity in the church, 2 lectures. -- [198-?].
86. Unruh, Abraham H. -- [1961?].
87. Use of the OT in the Matthean infancy narratives, The. -- [198-?].
88. Waiting for Christ’s return. -- [199-].
89. What does it mean to be biblical? -- 1979.
90. Why Christians fight over the Bible. -- [200-?].
91. Why so many versions? -- [198-?].
92. World, The. -- 2004.
93. Years at MBBC, The. -- 1982-1988.
1. The biblical account of creation. Gen 1-2. -- [200-?].
2. In the beginning, God . . . Gen 1:1-2. -- 1996.
3. Life’s basic questions. Gen 3:9; 4:9. -- 1974.
4. Predigten über das Glaubensleben Abrahams, 9 Vorträge. Gen 11-25. -- [196-?].
5. The call to a life of obedience. Gen 12:1-4. -- 1988.
6. God’s call to a redemptive ministry. Exod 3:1-12. -- 1988.
7. God as covenant partner. Exod 19: 1-8. -- 1975.
8. A room called remember. Deut 8:2. -- [200-?].
9. Standing in the gap. Judg 6:11-24. -- 1968.
10. God’s call to service. I Sam 3:1-10. -- 1988.
11. Memorials of God’s goodness. I Sam 7:12. -- [198-?].
12. Regaining our sense of calling. I Kgs 19:1-16. -- 1987.
13. A crisis of faith in the life of a psalmist. Ps 73. -- 2009.
14. A prayer for renewal. Ps 80. -- 1967.
15. Marks of a godly home. Ps 127. -- 1997.
16. The making of a servant of God. Isa 6:1-8. -- 1988.
17. The confessions of a servant of God. Jer 15:10-21. -- [198-?].
18. Seekest thou great things for thyself? Jer 45:5. -- [196-?].
19. God as redeemer. Jonah 1:1-3; 3:1-4; 4:1-11. -- 1975.
20. He was a good man . . . Micah 6:8. -- 1988.
21. On the watchtower of faith. Hab 1:1-6, 13; 2:1-4. -- 1984.
22. Emmanuel: God with us. Matt 1:22-23. German and English. -- 2006.
23. Opposition, anticipation, adoration. Matt 2:1-22. -- 2007.
24. The ministry of John the Baptist. Matt 3:1-17. -- [200-].
25. The temptation of Jesus. Matt 4:1-11. -- [199-?].
26. The beginning of Jesus’ Galilean ministry. Matt 4:1-25. -- [200-].
27. Kingdom people. Matt 5:1-16. -- [200-].
28. Kingdom ethics. Matt 5:27-37. -- 2005.
29. Your kingdom come. Matt 6:10. -- 2001.
30. Give us this day our daily bread. Matt 6:11. -- 1992.
31. Kingdom people and material possessions. Matt 6:19-34. -- [200-].
32. Relating to God and others as kingdom people. Matt 7:1-12. -- [200-].
33. Eschatological parables in Matthew’s Gospel. Matt 13:24-30; 36-43; 25:1-13. -- [200-].
34. Surprised by joy. Matt 13:44-46. -- [200-].
35. I will build my church. Matt 16:18. -- [200-].
36. Who is the greatest in the kingdom. Matt 18:1-4. -- 2000.
37. The triumphal entry into Jerusalem. Matt 21:1-11. -- 2007.
38. Jesus foretells the future. Matt 24. -- [200-].
39. Eschatological parables in Matthew’s Gospel. Matt 25:31-46. -- 2004.
40. On the way of the cross. Matt 26:46-75. -- [200-].
41. The missionary message of the Bible. Matt 18:16-20. -- 1978.
42. Der Ruf zur Juegenschaft. Markus 1:16-20. -- 1997.
43. The biblical charter for disciple making. Mark 3:13-15. -- 1985.
44. The last days. Mark 13:1-13. -- 2008.
45. The new covenant. Mark 14:10-26. -- [196-?].
46. The Passion narratives. Mark 14:32-42. -- 2010.
47. Jesus before Pilate. Mark 15:1-20. Calvary the richest hill on earth. Matt 15:21-39. -- 1986.
48. Introduction to Gospel of Luke. The birth of John the Baptist. Luke 1:5-25; 57-60. -- 2007.
49. The annunciation of Jesus’ birth. Luke 1:26-38. -- 2008.
50. Good news for modern man. Luke 2:8-14. -- 1985.
51. The good news of salvation. Luke 2:13-14. -- 2009.
52. Post Christmas blessings. Luke 2:25-35. German and English. -- 2008.
53. The promise of an acceptable year of the Lord. Luke 4:16-21. -- 1988.
54. Das Gleichnis von dem barmherzigen Samariter. Lukas 10:25-37. -- 2005.
55. The parable of the unjust steward. Luke 16:1-13. German and English. -- 2005.
56. The parable of the rich man and Lazarus. Luke 16:19-31. German and English. -- 2005.
57. Father forgive . . . Luke 23:34. -- [196-?].
58. An encounter with the living Christ. Luke 24:13-34. German and English. -- 1993.
59. The mission of the church. Luke 24:46-59. German and English. -- [199-?].
60. The Gospel of John, an introduction. -- 2008.
61. God, the Word. John 1:1-18. -- [200-].
62. The Word became flesh. John 1:1, 14. -- 1983.
63. The incomprehensible love of God. John 3:16. German and English. -- 2008.
64. Worship in spirit and truth. John 4:20-26. -- 2002.
65. The conclusion of the discourse on the bread of life. John 6:52-71. -- [200-].
66. The promise of an abundant life. John 7:37-39. -- 1992.
67. The raising of Lazarus. John 11:1-57. -- [200-].
68. I am the resurrection and the life. John 11:18-27. Funeral of A.A. Unruh. -- 1988.
69. Preparing for the Passion. John 12:1-8. German and English. -- 2008.
70. The Father’s house. John 14:1-5. Funeral of David’s mother. -- 2000.
71. The gift of the Paraclete, the Holy Spirit. John 14:16-17; 15:26-27; 16:7-8, 12-15. -- 2005.
72. In the world but not of the world. John 17:14-17. -- 2005.
73. Suffered under Pontius Pilate, was crucified, dead and buried (Apostles’ Creed). John 19:1-42. -- 2003.
74. The Acts of the Holy Spirit. Acts 1:1-5. The exaltation of Jesus. Acts 1:6-11. The upper room. Acts 1:12-26. The coming of the Holy Spirit. Acts 2:1-13. Peter’s Pentecost sermon. Acts 2:14-36. The new people of God. Acts 2:37-47. 6 sermons. -- [199-?].
75. Between Easter and Ascension. Acts 1:1-11. -- [200-].
76. He ascended into heaven. Acts 1:9-11. -- 2001.
77. Apostolic missions. Acts 1:8. -- [196-?].
78. The early church: our model. Acts 2:37-47. German and English. -- [198-?].
79. The first Gentile Pentecost. Acts 10:1-48. -- 2000.
80. The Samaritan Pentecost. Acts 8:1-24. -- 2000.
81. Paul’s synagogue sermon and its aftermath. Acts 13:26-51. -- [200-].
82. Paul’s ministry in Ephesus. Acts 19. -- 2009.
83. Paul the prisoner. Acts 24:1-27. -- [200-].
84. The Spirit as helper in our prayers. Rom 8:26-27. -- 1991.
85. The lordship of Christ. Rom 10:7-11. -- 1972.
86. A cause to live for. Rom 12:1-2. -- 1980.
87. Sanctified ambitions. Rom 15:20. -- [198-?].
88. Background to I Corinthians. -- 2007.
89. Background and Prologue. I Cor 1:1-9. -- 2004.
89a. Maintaining the unity of the church. I Cor 1:10-31. -- 2004.
90. The Spirit of God and the proclamation of the gospel. I Cor 2. -- [198-?].
91. Die Gemeinde und ihre Lehrer. I Kor 3:5-9; 4:1-5. -- [199-?].
92. Working together on God’s field. I Cor 3:5-9. German and English. -- 1998.
93. Building the church. I Cor 3:10-15. German and English. -- 1982.
94. Workers, builders, and stewards: portraits of God’s servants. I Cor 3:5-15; 4:1-5. -- 2009.
95. Stewards of the mystery of God. I Cor 4:1-5. German and English. -- 2000.
96. Apostolic directives for church discipline. I Cor 5. -- 2007.
97. Marriage, singleness and related matters. I Cor 7:1-24. -- [200-].
98. The unmarried, the betrothed, the widows. I Cor 7:25-40. -- 2004.
99. Voluntary restriction of liberty. I Cor 9:1-27. -- 2004.
100. Women and men at worship. I Cor 11:1-16. -- [200-].
101. Disorders at the Lord’s table. I Cor 11:17-34. -- [200-].
102. The gifts of the Spirit. I Cor 12. -- [200-].
103. The mysterious ways of God. I Cor 13:12-13. -- 2004.
104. A hymn of praise to love. I Cor 13:1-13. German and English. -- 1982.
105. The use of spiritual gifts in worship. 1 Cor 14:1-40. -- [200-].
106. The good news of the gospel. I Cor 15:1-11. German and English. -- 2010.
107. Die Auferstehung der Toten. I Kor 15:12-58. -- 1993.
108. The gospel: what is it? I Cor 15:1-4. -- [200-].
109. Changed by beholding. II Cor 3:18. -- 1986.
110. Treasures in earthen vessels. II Cor 4:7. -- [199-?].
111. Der Dienst am Evangelium. II Kor 4:1-7. -- [199-].
112. Denn wir wandeln im Glauben und nicht im Schauen. II Kor 5:7. -- [199-?].
113. In praise of the gospel ministry. II Cor 4:1-7. -- 1998.
114. Spiritual enthusiasm. II Cor 5:9. -- 1964.
115. The wonder of redemption. Gal 1:3-5. German and English. -- 2001.
116. Called to serve. Gal 1:15-24. -- [198-?].
117. Christ’s first advent. Gal 4:4-5. -- 1988.
118. Life in the Spirit. Gal 5:16-25. German and English. -- [198-?].
119. Sowing and reaping. Gal 6:7-10. German and English. -- 1995.
120. As we have opportunity, let us do good. Gal 6:9-10. -- 1988.
1. The spiritual wealth of the church. Eph 1:3-14. German and English. -- 2007.
2. God’s Pentecostal gift. Eph 1:13-14. -- 2008.
3. Paul’s prayer for the church. Eph 1:15-19. German and English. -- 1997.
4. Created in Christ Jesus unto good works. Eph 2:1-22. German and English. -- 2001.
5. I will build my church. Eph 2:20-23. -- [199-?].
6. God’s plan of salvation. Eph 2:11-22. -- [200-?].
7. Stärkung im Glauben. Eph 3:14-21. -- [199-?].
8. The mystery of Christ’s body, the Church. Eph 3:1-21. German and English. -- 2004.
9. The call to service. Eph 3:7-8. -- 1983.
10. Unity and diversity in the Church. Eph 4:1-16. German and English. -- 2001.
11. The new life in Christ. Eph 4:17-32. German and English. -- 2002.
12. How to walk and please God. Eph 5:1-20. German and English. -- 2001.
13. The fullness of the Spirit. Eph 5:18. German and English. -- [198-?].
14. Der Geistliche Kampf der Gemeinde. Eph 6:10-24. -- [199-?].
15. An early Christian greeting. Phil 1:1-2. -- [198-?].
16. A joyous thanksgiving. Phil 1:3-8. -- [198-?].
17. A prayer for growth. Phil 1:9-11. -- [198-?].
18. A prisoner’s thanksgiving and prayer. Phil 1:1-11. German and English. -- 2002.
19. Honoring Christ in the adversities of life. Phil 1:12-26. German and English. -- 2002.
20. Worthy of the gospel. Phil 1:27-30. German and English. -- 2002.
21. Practical apostolic appeals. Phil 2:1-11. German and English. -- 2002.
22. Unity through humility. Phil 2:1-4. -- [198-?].
23. The Christ hymn. Two sermons, part A and part B. Phil 2:5-11. -- [199-?].
24. Aufgenommen in die Herrlichkeit. Phil 2:9-11. -- 2004.
25. Patterns to emulate. Phil 2:19-30. -- 1985.
26. Breaking with the past. Phil 3:1-11. -- 1995.
27. Belehrungen im Blick auf die Vergangenheit Gegemwart und Zukunft. Phil 3:1-21. -- [199-?].
28. Already but not yet. Phil 3:12-21. -- [200-?].
29. Encouraging apostolic admonitions. Phil 4:1-9. -- 1995.
30. Introduction to Colossians. Col 1:1-8. -- [199-?].
31. The good news of the gospel. Col 1:1-14. -- 2007.
32. Thy word is truth. Col 1:3-8. -- 1989.
33. Prayer for knowledge and godly conduct. Col 1:9-14. -- [199-?].
34. A new pattern of life. Col 3:1-17. -- [200-?].
35. Exhortations, requests, and greetings. Col 4:2-18. -- [199-?].
36. Paul: apostle, pastor, and friend. Col 4:7-18. -- [200-?].
37. Introduction to Thessalonian epistles. -- [199-?].
38. 3 sermons. The basic characteristics of our life in Christ. I Thess 1:1-3; The spiritual foundations of our life in Christ. I Thess 1:4-6; The marks of the new life in Christ. I Thess 1:7-10. -- 1984.
39. 5 sermons. In the service of Christ. I Thess 2:1-12; The word of God. I Thess 2:13-16; The ups and downs in the service of God. I Thess 2:17-3:13; The blessed hope of the church. I Thess 4:13-18; Ready for the Lord’s return. I Thess 5:1-11. -- 2000.
40. Einleitung zu II Thessalonicher. -- [199-?].
41. Paul and Timothy. I Tim 1:1-10. -- [199-?].
42. The minister of the gospel. II Tim 2:1-7. -- 1985.
43. Images of a genuine servant of God. II Tim 2:1-26. German and English. -- 1999.
44. Der Dienst am Wort. II Tim 4:1-5. -- [199-?].
45. The needs of a Christian student. II Tim 4:13. -- 1985.
46. The advent of redeeming grace. Titus 2:11-13. German and English. -- 2000.
47. God has spoken by his son. Heb 1:1-3. German and English. -- 2003.
48. The mystery of the incarnation. Heb 2:14-18. -- 2003.
49. Son of Man, savior, and high priest. Heb 2:5-18. -- [199-?].
50. The superiority of the Christian faith. Heb 10:1-39. -- [199-?].
51. Although he is dead, he still speaks. Heb 11:14. Sermon delivered at father’s funeral. -- 1989.
52. Der christliche Pilger. Heb 11:8-10. -- 1987.
53. Mose in seiner weisen Wahl. Heb 11:23-31. -- [197-?].
54. The race that is set before us. Heb 12:1-2. -- [198-?].
55. Two thanksgiving offerings. Heb 13:15-16. -- [198-?].
56. Pure religion. Jas 1:19-27. -- [197-?].
57. Siegreiches Christentum. Jas 1:12-18. -- [197-?].
58. The lordship of Christ. Jas 4:13-17. German and English. -- 1986.
59. The living hope of the believer. I Pet 1:3-5. German and English. -- [200-?].
60. The tenses of salvation. I Pet 1:6-12. -- [199-?].
61. Biblical counsel for the college year. I Pet 1:13. -- 1988.
62. The good news of redemption. I Pet 1:17-21. -- 1995.
63. The church, a contrast society. I Pet 1:13-2:5. -- [199-?].
64. Die hohe Berufung des christlichen Pilgers. I Pet 2:1-10. -- [197-?].
65. The new people of God. I Pet 2:9-10. German and English. -- 2001.
66. The wonder of redemption. I Pet 2:24-25. -- [198-?].
67. Good stewards of God’s gifts. I Pet 4:10-11. -- [198-?].
68. Tending the flock of God. I Pet 5:1-7. -- 1994.
69. Listening to the voice of the Spirit. Rev 1:4-8. -- 2003.
70. The spiritual dynamics of the Christian life. Rev 1:5b-6. -- [199-?].
71. A vision of the presence of Christ in the church. Rev 1:9-20. German and English. -- 1985.
72. What is the Spirit saying to our churches today? Rev 2:1-7. -- 1988.
73. Comfort in suffering. Rev 2:8-11. -- 1996.
74. Mangel an lebendigem Glauben. Rev 3:1-6. -- 1994.
75. A glimpse of glory. Rev 7:13-17. -- 2004.
76. The open book. Rev 10:8-11. German and English. -- 1989.
77. The birth of Messiah in the visions of the seer of Patmos. Rev 12:1-17. -- 1996.
78. Followers of the Lamb. Rev 14:1-5. -- 1996.
79. A heavenly promise in the face of death. Rev 14:13. -- 1987.
80. 10 sermons. A vision of Christ among the churches. Rev 1:1-20; Christ’s messages to the churches. Rev 2:1-3:20; A vision of the court of heaven. Rev 4:1-5:14; The seven seals. Rev 6:1-7:17; The seven trumpets. 8:1-11:19; The church and the forces of evil. Rev 12:1-14:5; Visions of final judgment. Rev 14:6-16:21; The demise of all evil powers. Rev 17:1-19:5; The final victory. Rev 19:6-20:15; Visions of eternal glory. Rev 21:1-22:21. -- [199-?].
81. 9 Predigten über die Offenbarung. Der lebendige Christus unter den Gemeinden. Rev 1-4; Vor Gottes Thron. Rev 4:1-5:14; Die sieben Siegel. Rev 6:1-7:17; Die sieben Posaunen. Rev 8:1-11:19; Der Kampf, der Gemeinde mit bösen Mächten. 12:1-14:5; Die gerichte Gottes. Rev 14:6-16:21; Das Ende aller babylonischen Mächte. Rev 17:1-19:5; Die zukünftige herrschaft Gottes. Rev 19:6-20:15; Die ewige Herrlichkeit. Rev 21:1-22:21. -- [199-?].
82. 8 Predigten aus der Offenbarung. Der prophetische Auftrag. Rev 1:1-20; Die Gemeinde Jesu Christi in den Augen ihres Herrn. Rev 2-3; Die Endzeit vom himmlischen Standort gesehen. Rev 4:1-7:17; Die Gemeinde Gottes in der Endzeit. Rev 8:6-11:19; Die grosse Prüfung. Rev 12:1-14:20; Endzeitliche Gerichte. Rev 15:1-19:5; Der Triumph Gottes am Ende dieses Zeitalters. Rev 19:6-22:21; Der Triumph Gottes am Ende der Geschichte. Rev 19:6-22:21. -- [198-?].

matches: V. V. V. V. V. V. V.


text:
Matthew J. Iverson Abramson & Fox, Chicago, Ill., for plaintiff-appellant.
Jane S. Kimball, Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D.C., for defendant-appellee.
Before BAUER, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges.
This appeal involves a claim by The Purdy Company of Illinois (the "taxpayer") against the United States and a counterclaim by the United States, regarding the alleged liability of the taxpayer under 26 U.S.C. Sec. 6672(a) (1982), as a "responsible person" for the payment over to the government of federal employment taxes withheld from the wages of employees of Nick Pavletic Pontiac, Inc. ("Pontiac"). The district court entered judgment against the taxpayer for the amount of a penalty attributable to taxes owing for the third and fourth quarters of 1974 plus interest. The taxpayer appeals. Because we agree with the district court that the taxpayer was a responsible person who willfully avoided paying withholding taxes, and because in these circumstances the taxpayer was responsible for paying over certain after-acquired funds, we affirm the judgment.
Pontiac was an automobile dealership that operated in Chicago during the early 1970's. Pavletic was its chief executive officer and initially its sole shareholder. As a result of serious financial difficulties in the summer of 1974, Pavletic sought the taxpayer's assistance in August of that year. After some investigation, the taxpayer, through John Purdy, its president, purchased 49% of the stock of Pontiac for $20,000. In August 1974, Pavletic assigned to the taxpayer certain pension and profit sharing plan rebates. In September Pavletic agreed to deliver to the taxpayer the money due Pontiac from the yearly "2% holdback" by General Motors on sales of new General Motors cars to the dealership. The holdback check, which was based upon Pontiac's volume of purchases from General Motors throughout 1974, was delivered by General Motors to Pontiac on January 3, 1975, in the amount of $16,427.45. Also in September 1974, John Purdy arranged a $15,000 loan for Pavletic which the taxpayer fully guaranteed, apparently relying on the 2% holdback as security. In October 1974, the taxpayer lent Pontiac an additional $15,000 for use in its operations. Thus, from August through October 1974, the taxpayer, directly or indirectly, advanced a total of $50,000 to Pontiac, which enabled the dealership to continue in business.
On or about November 4, 1974, General Motors Acceptance Corp. withdrew its floor-plan financing for Pontiac, and the Standard Heritage Bank, of which John Purdy was a director and shareholder, undertook to finance Pontiac. As a part of this new floor-plan financing arrangement, the taxpayer agreed to guarantee Pontiac's indebtedness and was given the power and duty to co-sign all Pontiac checks and to review and approve all Pontiac expenditures. The taxpayer, through Mr. Boyle--one of its employees and John Purdy's son-in-law--exercised that power by co-signing all Pontiac checks and approving all Pontiac expenditures from and after approximately November 18, 1974.
From that date onward, Pontiac's bookkeeper prepared a "daily cash report" for Boyle's use, setting forth, with respect to the bank accounts then maintained by Pontiac, all amounts received and deposited in each account for the day, the amounts available to be disbursed, all proposed disbursements and the creditor that was to receive each disbursement. Boyle reviewed all reports, proposed disbursements and the related invoices; he disapproved payments to creditors that he determined were not legitimate.
After consulting with Pontiac's insurance agent, Boyle also required that steps be taken to insure against loss in the event of an attempt to steal Pontiac's inventory; every morning from the middle of November onward, Boyle visited Pontiac's premises in order to inspect its inventory and ensure that no cars had been sold "out of trust." In addition to his other responsibilities, Boyle analyzed Pontiac's financial statements for the periods running from January 1, 1974 through October 31, 1974, and January 1, 1974 through November 30, 1974. He investigated the current value of assets listed in these statements in connection with attempts to establish a price at which the dealership might be offered for sale.
In the middle of December 1974, an agent from the Internal Revenue Service (the "IRS") met with Boyle and advised him that Pontiac was delinquent in the payment of employment taxes. The agent requested Boyle not to sign any Pontiac checks in payment of wages unless he at the same time also signed checks payable to the IRS covering the amount of the employment taxes withheld from those wages. Boyle agreed to comply with this request and did, in fact, comply.
As noted, on January 3, 1975, Pontiac received the "2% holdback" check from General Motors. Pavletic advised Boyle that the check should be used to pay the delinquent employment taxes owing for the third and fourth quarters of 1974. Nevertheless, Pavletic turned the check over to Boyle, who applied $14,000 of it against the $15,000 loan that the taxpayer had made to Pontiac in October. Both Boyle and Purdy knew that Pontiac's employment taxes for the entire third quarter of 1974 and for a portion of the fourth quarter of 1974 had not been paid when the holdback check was applied against the $15,000 debt owed to the taxpayer. During the period from November 18, 1974 through December 26, 1974, checks drawn on Pontiac's "regular" bank account and signed by Boyle in payment of creditors, other than the IRS, totaled $56,879.53. During the period from December 27, 1974 through January 23, 1975 (the date Pontiac ceased operations) similar checks totaled $36,981.27.
Pursuant to section 6672(a) of the Internal Revenue Code of 1954 (26 U.S.C.),1 the IRS assessed a penalty of $25,922.51 against the taxpayer for failure to account for and pay over federal employment taxes withheld from the wages of the employees of Pontiac for the last two quarters of 1974 and the first quarter of 1975. The taxpayer made a partial payment of $85.38 and filed a suit for refund; the government filed a counterclaim for the unpaid balance of the assessment ($25,837.13), plus interest and statutory additions provided by law. After a two-day bench trial, the district court entered judgment against the taxpayer for the amount of the penalty attributable to employment taxes owing for the last quarter of 1974 and the first quarter of 1975. After further proceedings, the taxpayer was relieved of liability for the first quarter of 1975, but was held liable for a portion of the taxes owing for the third quarter of 1974 as well as for the taxes owing for the fourth quarter of 1974.
The district court in its original oral decision concluded that the taxpayer had assumed control of Pontiac on or around November 18, 1974 and had thereby become a "responsible person" under section 6672. By obtaining the right (in fact, the duty) to co-sign all checks of Pontiac, approve or disapprove all the agency's expenditures, and oversee the operation of the company, as well as by achieving the status of a substantial stockholder and creditor, the taxpayer had become a "responsible person" for the payment of taxes during the fourth quarter of 1974. The court found that the taxpayer, through its employee, Mr. Boyle, knew of the government's claim for delinquent taxes and willfully chose to pay itself in lieu of the government. On the other hand, the district court found that the taxpayer's involvement with Pontiac in the third quarter of 1974 was as an investor and creditor and that this was not such a role as to make the taxpayer a "responsible person" during that period. The court in this first decision found the taxpayer liable for 1974 fourth quarter taxes (in addition to the subsequently released 1975 first quarter taxes). See Purdy Co. v. United States, No. 79-C-3167, Trial Transcript ("Tr.") at 2-11 (N.D.Ill. Sept. 23, 1983).
the check represents sales in 1974, for three-quarters of which time the Purdy Company was not a controlling person. Thus, three-quarters of the check does not reflect "sums received from sales in carrying on the business after [the date of assuming control]," [sic] the type of funds exempted in Slodov.
Purdy Co., mem. op. at 3 (Jan. 28, 1986) (quoting Slodov ). Final judgment was therefore entered against the taxpayer in the amount of $22,179.08 (the sum of $12,320.59, the portion of the taxes owing for the third quarter of 1974 for which the taxpayer was liable, and $9,858.49, the amount of taxes owing for the fourth quarter of 1974) plus interest. The taxpayer appeals.
Sections 3102 and 3402 of the Internal Revenue Code of 1954 (26 U.S.C.) (the "Code") require employers to withhold federal social security and income taxes from the wages of their employees. These withheld taxes constitute a special fund held in trust for the benefit of the United States under section 7501 of the Code. If the employer withholds these "trust fund" taxes but fails to pay them over to the United States, the employee is nevertheless credited with having paid the taxes and is not liable for any additional payment. See Slodov v. United States, 433 U.S. at 243 n. 4, 98 S.Ct. at 1783 n. 4. Thus, to avoid loss of revenue, the government must have recourse against the employer. Sections 3102(b) and 3403 of the Code establish that the employer is liable for unpaid wage withholdings; the government has several avenues by which to assure payment. To protect against future losses the government can require that the employer establish a separate bank account--essentially a trust fund--in which withholdings must be segregated. See 26 U.S.C. Sec. 7512. To recover past-due withholdings the government can, with the normal procedures of assessment, notice and demand, obtain a lien upon the employer's property and take the proceeds of a forced sale. See 26 U.S.C. Secs. 6321, 6331-6344, 7501. The government can also seek penalties assessable against the employer for tax delinquencies. See 26 U.S.C. Secs. 6656, 7202, 7215. In addition to recourse against the employer, the government in certain circumstances may seek payment from individuals associated with the employer: when an official or employee who is required to collect, account for and pay over employment taxes for the employer willfully fails to do so, he or she is personally liable for a penalty equal to the amount of the unpaid taxes. 26 U.S.C. Sec. 6672. 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)).
Wage withholdings can be a "tempting source of ready cash" for a financially troubled employer, see Slodov, 436 U.S. at 243, 98 S.Ct. at 1783, because although the withholdings accrue as wages are paid, they generally are tendered to the government only quarterly. Not surprisingly, then, when the IRS seeks to recover unpaid withholdings it often may find only a bankrupt employer--a state of affairs which frustrates the government in its claim to the withholdings. Cf. United States v. Sotelo, 436 U.S. 268, 277 n. 10, 98 S.Ct. 1795, 1801 n. 10, 56 L.Ed.2d 275 (1978). From this situation arises the importance of section 6672, which establishes that certain persons in control of the employer's affairs can be personally liable for unpaid withholdings. When a "responsible person" has been in a position of accountability throughout the period in which tax delinquencies arose, section 6672 liability has been clearly incurred. On the other hand, when a responsible person arrives at responsibility only after tax delinquencies arise, section 6672 liability is more problematic.
does not violate Sec. 6672 by willfully using employer funds for purposes other than satisfaction of the trust-fund tax claims of the United States when at the time he assumed control there were no funds with which to satisfy the tax obligation and the funds thereafter generated are not directly traceable to collected taxes referred to by that statute.
436 U.S. at 259-60, 98 S.Ct. at 1791. The Court held that neither the policy underlying section 6672, nor its legislative history, nor the valid interests of competing creditors permitted an interpretation of section 6672 that would impose personal liability for every use of after-acquired funds for a purpose other than retiring the tax delinquencies. Id. at 251-59, 98 S.Ct. at 1787-91. We must now determine, among other things, whether the taxpayer here incurred personal liability when it failed to apply the 2% holdback check against the past-due taxes.
The taxpayer raises essentially three objections to being held liable for failure to pay over trust fund taxes in the case before us. First, it argues that it never became a "responsible person" subject to the obligations set forth in section 6672. Second, the taxpayer contends that even if Boyle, and thus the taxpayer, did possess the requisite degree of control to be deemed a "responsible person," the evidence did not show that he acted "willfully" as required to establish section 6672 liability. Third, the taxpayer urges that even if it became a "responsible person" when Boyle began co-signing checks on November 18, 1974, it should not be held liable for payroll taxes that accrued prior to that time. In particular, the taxpayer contends that there should be no liability for the amount of the General Motors holdback check, which was turned over to the taxpayer in January 1975 in partial satisfaction of its prior loan.
The district court found that the taxpayer was a "responsible person" on and after November 18, 1974, and that finding is fully supported by the evidence. The taxpayer argues that it did not become a "responsible person" on November 18 (when Boyle first began to co-sign checks) because Boyle "merely assured that Pontiac checks were issued for valid corporate purposes but he made no determination whether one creditor or another should be paid." Purdy Brief at 8. Boyle's function, according to the taxpayer, was only to verify for the benefit of the bank that Pontiac's disbursements were legitimate. This interpretation is, however, contradicted by the facts in the record which demonstrate that the taxpayer not only regularly vetoed payments to certain creditors but also affirmatively directed payments to others. For example, the taxpayer through Boyle vetoed certain disbursements for telephone bills, legal services and Pavletic's salary. See, e.g., Tr. at 106-07, 350-51, 371-72 (Sept. 19, 1983). Commencing with the December 27 payroll, the taxpayer, pursuant to a discussion with an IRS agent, began to direct payment of withholding taxes. See id. at 65-68. In addition, the taxpayer through Boyle saw to it that $14,000 of the proceeds of the General Motors holdback check was applied toward repayment of its own loan to Pontiac. See id. at 379; Tr. at 10 (Sept. 23, 1983). This loan repayment was, of course, in preference to other creditors' claims and in preference to the trust fund claims of the United States. Cf. Commonwealth Nat'l Bank v. United States, 665 F.2d 743, 755 (5th Cir.1982); Neckles v. United States, 579 F.2d 938, 940 (5th Cir.1978); Brown v. United States, 464 F.2d 590, 591 (5th Cir.1972), cert. denied, 410 U.S. 908, 93 S.Ct. 962, 35 L.Ed.2d 270 (1973); United States v. Graham, 309 F.2d 210 (9th Cir.1962). It is relevant also that the taxpayer directed that certain policies of Pontiac be changed in order to protect existing inventory and to recall demonstrator models out on loan. See Tr. 54-55, 98-101, 352-53 (Sept. 19, 1983).
The "key to liability" under section 6672 is "control of finances within the employer corporation: the power to control the decision-making process by which the employer corporation allocates funds to other creditors in preference to its withholding tax obligations." Haffa v. United States, 516 F.2d 931, 936 (7th Cir.1975). It is sufficient that the person involved have significant control over the disbursal of corporate funds. Adams v. United States, 504 F.2d 73, 75 (7th Cir.1974). Section 6672 is broad enough to "reach [any] entity [including an outside lender] which assumes the function of determining whether or not the employer will pay over taxes withheld from its employees." Id. at 76. In the case before us the taxpayer had significant authority to control the financial affairs of Pontiac and freely exercised that power to direct payment of Pontiac funds to certain creditors in preference to the withholding tax obligation.
The taxpayer also argues that Boyle did not act "willfully" as required for section 6672 liability. See Godfrey v. United States, 748 F.2d 1568 (Fed.Cir.1984); Barrett v. United States, 217 Ct.Cl. 617, 580 F.2d 449 (1978). Boyle first learned of Pontiac's earlier tax problems in late December 1974. The taxpayer contends that, since no new delinquencies (that is, defaults with respect to taxes accruing after the notice) occurred after Boyle acquired this knowledge of the earlier tax problems, it can have no liability for Pontiac's taxes.
The district court did not accept this argument nor do we. Filing of the quarterly withholding tax return for the fourth quarter of 1974 and payment of all taxes owing for that quarter were due no later than January 31, 1975. The taxpayer had attained "responsible person" status by that time, had specific knowledge of the fact that none of the fourth quarter taxes accruing prior to December 27 (or the third quarter taxes) had been paid and had more than enough unencumbered Pontiac funds available to it (as well as the General Motors holdback check) during the period from mid-December onward to see to the payment of those taxes. Its failure to do so adequately establishes the element of willfulness. See Wright v. United States, 809 F.2d 425 (7th Cir.1987); Garsky v. United States, 600 F.2d 86, 91 (7th Cir.1979); Howard v. United States, 711 F.2d 729, 735 (5th Cir.1983); Mazo v. United States, 591 F.2d 1151, 1157 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979); Brown v. United States, 591 F.2d 1136, 1140-41 (5th Cir.1979).
In addition, given Boyle's close supervision of Pontiac's finances from November 18 onward, it is difficult to perceive how Boyle would not have known whether or not during prior periods taxes had been withheld and paid over to the United States. The district court indeed determined that "the Purdy Company, through its employee, Mr. Boyle, knew of the claim of the government for delinquent taxes and willfully chose to pay the Purdy Company in lieu of the government." Tr. at 10 (Sept. 23, 1983). This finding is certainly not clearly erroneous. With respect to the largest portion of the liability--the holdback check from General Motors--Mr. Boyle, of course, knew of the claim of the government for these funds but elected to apply them instead against the taxpayer's loan. Willfulness with respect to the taxes due during the fourth quarter of 1974 is equally clear. Lack of willfulness is not a plausible basis for reversal.
The most difficult problem presented by this case is whether under the rule of Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, the taxpayer may be held liable for Pontiac's third quarter withholding taxes, as well as for that portion of the fourth quarter taxes which had accrued prior to November 18 when the taxpayer assumed control. In particular, the taxpayer takes issue with the assessment of liability based upon its application of the General Motors holdback check against its own loan to Pontiac in preference to the use of these funds to reduce withholding tax deficiencies that came into existence before the taxpayer assumed the position of control. There are at least two theories by which the taxpayer might be found liable under section 6672 for failing to apply the holdback check against past tax deficiencies. First, following the approach of the district court and the government, we could construe the holdback check as funds "generated by business transacted before the change in control," and thus as funds unrelated to the new responsible person's activities, funds that must under section 6672 be applied against back taxes. Or second, we could construe the holdback amount as "funds" or "liquid assets" owned by the company at the time the responsible person gained control.
if funds are generated from business transacted prior to the responsible person's assumption of control and not generated from business transacted "thereafter," they are considered to be as much "funds impressed with a trust" under Section 7501 for satisfaction of the Government's claim as cash actually in hand at the time of the change in control.
Both the district court and the government thus suggest that section 6672 liability depends upon an analysis of the source of after-acquired funds--if such funds are "generated by" or "attributable to" pre-ownership "business" or "sales," then the new responsible person must apply the funds against the tax deficiencies or face personal liability for an equivalent amount. It would be premature here to adopt this perhaps expansive reading of section 6672 principally because this interpretation is unnecessary for the disposition of the present case. Because, however, this government test displays a perhaps deceptive aura of equity and simplicity and therefore might seem one we should adopt now, we think some preliminary analysis is appropriate.
Slodov, 436 U.S. at 259, 98 S.Ct. at 1791. We note, despite the government's somewhat misleading redaction of this quote in its brief, see Government Brief at 27, that the Court states explicitly that "Sec. 7501 does not impress a trust on after-acquired funds." Slodov, 436 U.S. at 259, 98 S.Ct. at 1791. In light of the Court's additional holding that "Sec. 7501 properly may be regarded as informing the scope of the duty imposed by Sec. 6672," id. at 256 n. 18, 98 S.Ct. at 1789 n. 18, Slodov might be understood to limit section 6672 liability to only two situations: when funds are on hand at the time of accession to control, and when after-acquired funds are directly traceable to withheld taxes.
Surely Congress did not intend Sec. 6672 to hammer the responsible person with the threat of heavy civil and criminal penalties to pay over proceeds in which the [Internal Revenue] Code does not assert a priority interest.
Id. at 259, 98 S.Ct. at 1791. For example, payments on an account receivable might be proceeds covered under an inventory financing agreement where the inventory was sold before the responsible person acceded to control.
We have noted these possible reservations (but have reached no conclusions) about the approach adopted by the district court and urged by the government.3 It is enough for present purposes to rely upon the Slodov principle that a new person in control of a failing enterprise may be personally responsible for past withholding tax delinquencies to the extent that the employer corporation had "funds" or "liquid assets" at the time of the transfer of control. See Slodov, 436 U.S. at 259-60, 98 S.Ct. at 1791-92; Lassar v. United States, No. 81-C-6890, slip op. at 15-17 (N.D.Ill. June 14, 1985); Ranta v. United States, 78-2 Tax Ct. Rep. (CCH) p 9832 (S.D.N.Y. Nov. 28, 1978). Assets are liquid to the degree they are readily convertible into cash. In the case of third-party obligations the likelihood and promptness of payment are perhaps the keys to liquidity.
Here, the "holdback" funds retained by General Motors from Pontiac represented the accumulation of 2% rebates to be paid by General Motors on each purchase of a new car by Pontiac during 1974. Essentially, these were Pontiac's own funds held "on deposit" by an obligor of immense credit-worthiness to be returned after the first of the new year. General Motors' obligation to pay these rebates to Pontiac was, of course, fixed and their collectibility assured as of the time of the taxpayer's accession to control; the rebates were denominated on Pontiac's balance sheets as "Factory Receivables." Because this was an obligation to pay back funds within sixty days of the time of accession to control, we think this account must be considered "liquid assets" and "funds" for purposes of Slodov analysis. Certainly the taxpayer was on notice that this was an item quite promptly reduceable to cash as of the time of accession to control and therefore was impressed with a trust fund obligation.
The district court, supported by ample record evidence, held that at least three-fourths of the amount of the holdback check ($12,320.59 out of $16,427.45) could be attributed to sales consummated by Pontiac before the end of the third quarter, and that therefore this amount constituted trust funds under section 7501 for which the taxpayer was liable.6 Because Pontiac sales in fact declined sharply in October and November, this allocation of three-fourths of the check to the first three quarters of 1974 was, if anything, somewhat more favorable than the evidence would require. We presume the allocation was made on the basis of the "source" test. The allocation would seem equally appropriate in determining the amount of the General Motors-Pontiac obligation as of the date of accession under a "funds-liquid assets" test.
The taxpayer is thus liable for not paying over funds on hand at the time of accession to control. The holdback obligation, carried on Pontiac's books as "Factory Receivables," comprises, as noted, funds or liquid assets for purposes of section 6672. Although the district court did not make a finding as to the amount of Factory Receivables and other funds on hand on November 18, 1974, the day of taxpayer's accession to control, the record reveals enough. As of October 31, 1974, Pontiac showed Factory Receivables of $17,920.80, and by November 30, 1974, that amount had risen to $18,007.28. In addition, the November 30 financial statement showed some $12,000 in cash on hand. It is clear that the taxpayer properly can be held liable for at least the amount of $12,320.59.
26 U.S.C. Sec. 6672(a) (1982). As seems to be the custom, we use the phrase "responsible person" to refer to a "person required to collect, truthfully account for, and pay over any tax imposed by this title." See Slodov v. United States, 436 U.S. 238, 246 n. 7, 98 S.Ct. 1778, 1784 n. 7, 56 L.Ed.2d 251 (1978).
the Government will be remitted to its claim in bankruptcy. When an immediate filing for bankruptcy means a total loss, the Government understandably ... does not discourage the corporation from continuing to operate so long as current taxes are paid. As soon as the corporation embarks upon that course, however, the "responsible person" is potentially liable to heavy civil and criminal penalties not for doing anything which compromised the Government's collection efforts, but for doing what the Government regards as maximizing its chances for recovery.... [This scenario] would merely discourage changes of ownership and management of financially troubled corporations and the infusion of equity or debt funding which might accompany it without encouraging employer compliance with tax obligations or facilitating collection of back taxes.
436 U.S. at 253, 98 S.Ct. at 1788.

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