UNITED STATES v. CURTIS. In re FOREST CITY BREWERY, Inc., 178 F.2d 268

PER CURIAM. Upon stipulated facts, the district court affirmed an order of the Referee in Bankruptcy which disallowed the claim of the United States for a sum certain, due under

section 1622 of the Internal Revenue Code, as amended, 26 U.S.C.A. § 1622, as income withholding taxes upon amounts directed by the referee to be paid to certain claimants as wages out of available funds in the bankrupt’s estate. The government has appealed from the order, and relies upon the direct authority of United States v.

Fogarty, 8 Cir., 164 F.2d 26, 174 A.L.R 1284, wherein it was held that a trustee in bankruptcy who makes payments in respect of wages earned by the bankrupt’s employees before the bankruptcy is an employer for income withholding tax purposes and is liable for the payment of such taxes where there is no proof that the wage earners had paid sufficient income taxes to discharge the withholding taxes. This holding was based upon

section 1622(

a) of the Internal Revenue Code, as added by

section 2 of the Current Tax Payment Act, 26 U.S.C.A. § 1622(a), which requires an employer making payment of wages to deduct and withhold therefrom a tax equal to the amount specified in the statute, and of

section 1623, placing liability upon the employer for payment of taxes so required to be deducted and withheld. The Referee in Bankruptcy whose ruling was adopted by the district judge conceded in his opinion that there is no doubt that United States v. Fogarty, supra, sustains the government’s position; but, for the reason that this court had not decided the question, he considered himself free to disagree with the reasoning and conclusions of the Court of Appeals for the Eighth Circuit. .

After careful consideration of the soundly reasoned opinion of the Court of Appeals for the Eighth Circuit and the divergent view of the experienced referee in bankruptcy, we are of opinion that United States v. Fogarty was correctly decided; and, therefore, concur in the opinion of the, court of appeals with respect to the duty and liability of the trustee in bankruptcy to withhold the specified income taxes upon claims for wages earned prior to the bankruptcy.

We do' not reach the question, nor do we base our decision or express any opinion upon the added conclusion of the Court of Appeals for the •Eighth Circuit that the taxes are enforceable against the estate of the bankrupt as expenses of administration having priority under

section 64, sub. a of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a The judgment of the district court is reversed, with direction that the claim of the United States for the withholding taxes involved be, allowed.