New Castle Siding Co. v. Wolfson

[784] OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed, with costs. Appellant, whose cross claim is asserted in his individual capacity, seeks to recover for the delinquent taxes and penalties he has paid on behalf of the corporation and for loans made to the corporation above and beyond his initial investment. The former were made in appellant’s capacity as an officer or employee of the corporation (see US Code, tit 26, § 6671, subd [b]; § 6672; Tax Law, §§ 1085, 1131, 1134) and would be the result of respondent’s negligence, if any, in discharging his obligations to the corporation for which he would not be responsible to a stockholder (cf. White v Guarente, 43 NY2d 356). In making the loans, appellant acted as a general creditor of the corporation, to whom it is well settled that no duty is owed by an accountant (see Ultramares Corp. v Touche, 255 NY 170). Thus, in neither case can appellant, as an individual shareholder, have recovery against respondent. Chief Judge Cooke and Judges Jasen, Jones, Meyer, Simons and Kaye concur; Judge Wachtler taking no part. Order affirmed, with costs, in a memorandum.