The opinion of the court was delivered by: GERARD L. GOETTEL
Plaintiff Joseph Carlucci and third-party defendant Carmine Magnotta owned the Davenport Restaurant in Stamford, Connecticut. The Davenport was organized as a corporation; it is alleged that Magnotta and Carlucci were officers and directors of the corporation in addition to being shareholders. In his complaint, Carlucci alleges that Magnotta was responsible for the management and operating of the restaurant, including supervision of David Romanello, who was employed as the full-time manager, and Janice Spadaro, who worked as the full-time bookkeeper. Carlucci further asserts that Romanello and Spadaro were both responsible for the day-to-day operations, that both were signed checks on Davenport's corporate checking account, and that both exercised decision-making authority with respect to the payment of Davenport's creditors. According to the amended third-party complaint, in August 1986, Kurt Wittek and Mark Parker contracted to purchase the Davenport from Carlucci and Magnotta. The closing, originally scheduled for mid-September 1986, was delayed so that Parker and Wittek could review the financial records of the restaurant. Despite the delay in transferring ownership, Carlucci claims that Parker and Wittek took over the day-to-day operation and financial management of the restaurant. This complaint also alleges that Kurt Wittek and Mark Parker assumed overall authority and responsibility for directing the operations of Davenport and were authorized to make decisions regarding the payment of creditors. Carlucci disclaims any involvement in the running of Davenport's business or in its financial operations.
The Davenport defaulted on the payment of $ 58,533.97 in employee F.I.C.A. and federal withholding taxes owed for the quarter ending September 30, 1986 and for part of the quarter ending December 31, 1986. On March 26, 1990, a 100% penalty in the amount of the owed taxes was assessed by the IRS against Carlucci as a "responsible person" of Davenport; the same penalty was assessed against Magnotta on April 4, 1990.
On April 15, 1990, the IRS applied $ 561.91 from an overpayment of Carlucci's 1989 income taxes towards his penalty assessment. Two days later, Carlucci paid an additional $ 200 and then filed claims with the IRS for a refund of the money applied to the assessment and for an abatement of the assessment. These claims were denied by the IRS on June 5, 1990.
DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION
Section 6672(a) of the Internal Revenue Code provides:
Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.
26 U.S.C. § 6672(a). The Government can assess this penalty against more than one person as there is joint and several liability under this statute. McCray v. United States, 910 F.2d 1289, 1290 (5th Cir. 1990), cert. denied, sub nom., Scott v. United States, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991); Sinder v. United States, 655 F.2d 729, 732 (6th Cir. 1981); Hartman v. United States, 538 F.2d 1336, 1340 (8th Cir. 1976). It cannot collect the penalty more than once, however, although the statute appears to so permit. See Gens v. United States, 222 Ct. Cl. 407, 615 F.2d 1335, 1339 (Ct. Cl. 1980); Kelly v. Lethert, 362 F.2d 629, 634 (8th Cir. 1966).
In his cross-claim and third-party complaint, Carlucci asserts that if he is liable for the penalty assessed against him by the Government, then he should be able to pursue contribution actions against Magnotta, Wittek, Romanello, Spadaro and Parker because they, too, are responsible parties under § 6672 for the payment of taxes withheld from the wages of Davenport employees. At the suggestion of the United States, we are considering whether this court has subject matter jurisdiction over these claims. See Fed. R. Civ. P. 12(h)(3); John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 588 F.2d 24, 27 (2d Cir. 1978), cert. denied, 440 U.S. 960, 59 L. Ed. 2d 773, 99 S. Ct. 1502 (1979). See also Fed. R. Civ. P. 12(b)(1).
An action must be dismissed, even on the court's own motion, whenever it appears that the court lacks such jurisdiction.
The parties agree that there is no federal right to contribution or indemnification under 26 U.S.C. § 6672. See, e.g., Sinder v. United States, 655 F.2d at 731; Seachrist v. Riggs, 91-1 U.S.T.C. P 50, 019 (N.D. West Va. 1990); Rebelle v. United States, 588 F. Supp. 49, 51 (M.D. La. 1985); DiBenedetto v. United States, 75-1 U.S.T.C. P 9503 (D.R.I. 1974). Carlucci contends, however, that there is a state right to contribution under Connecticut law, which governs this case, see Swift v. Levesque, 614 F. Supp. 172, 177-78 (D. Conn. 1985), and that he may assert this claim in this action under the doctrine of supplemental jurisdiction. The first question to be resolved, however, is whether this court should take jurisdiction over such a claim, assuming it exists.
Under 28 U.S.C. § 1367(a), after December 1, 1990, the district courts "shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties." This new statute codifies the doctrines of ancillary and pendent jurisdiction, in addition to permitting pendent party jurisdiction, which had been rejected by the Supreme Court in 1989. See Finley v. United States, 490 U.S. 545, 104 L. Ed. 2d 593, 109 S. Ct. 2003 (1989).
Under § 1367(a), state and federal claims form one case or controversy when they derive from a common nucleus of operative facts or when both claims would normally be expected to be tried in a single judicial proceeding. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Sinclair v. Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991); McCray v. Holt, 777 F. Supp. 945, 948 (S.D. Fla. 1991). In general, when either condition was satisfied, the court's exercise of supplemental jurisdiction, although not automatic, would be a favored and normal course of action. Estate of Bruce v. City of Middletown, 781 F. Supp. 1013, ...