01-1149
Sales & Withholding
Tax
Signed 11/27/02
BEFORE THE UTAH STATE TAX
COMMISSION
____________________________________
PETITIONER 1, ) ORDER
PETITIONER 2, )
)
Petitioners, ) Appeal No. 01-1149
)
v. ) Account No. ########
)
TAXPAYER SERVICES
DIVISION ) Tax Type:
Sales & Withholding Tax
OF THE UTAH STATE TAX )
COMMISSION, ) Tax Year: 04/99
- 06/00
)
Respondent. ) Judge: Davis
_____________________________________
Presiding:
G. Blaine Davis, Administrative Law Judge
Appearances:
For Petitioner: PETITIONER 1
PETITIONER 2
ATTORNEY FOR PETITIONERS (filed a
post-hearing memorandum)
For Respondent: Mr. Tim Bodily, Assistant Attorney General
Mr. Bill Reilly, from the Taxpayer
Services Division
STATEMENT
OF THE CASE
This matter came before
the Utah State Tax Commission for an Initial Hearing pursuant to the provisions
of Utah Code Ann. '59-1-502.5, on October
1, 2001. The parties were given
additional time, to and including January 18, 2002 in which to file briefs and
reply briefs. However, Petitioners
retained an attorney, ATTORNEY FOR PETITIONERS, to file a brief, and he
requested additional time. ATTORNEY
filed his brief on April 1, 2002, and Respondent filed its Reply Memorandum on
May 1, 2002.
Petitioners were
officers and directors in a corporation named "COMPANY A (COMPANY A). PETITIONER 1 was the President, a Director,
and the Registered Agent of the corporation.
PETITIONER 2 was the Vice-President and a Director of the corporation.
For the periods April
1999 through September 2000, COMPANY A filed some sales tax returns, a portion
of which were not timely filed. The
sales tax amounts thereon were not paid when the returns were filed. In addition, COMPANY A has filed some
payroll withholding tax returns on which it paid less than the full amount of
payroll withholding. Based upon the
actual returns filed by COMPANY 1, there are sales taxes due and owing of
$$$$$, and withholding taxes of $$$$$ plus penalties and interest on each of
said amounts.
During those periods,
Respondent performed an audit on the books and records of COMPANY A, and made
an audit assessment of $$$$$, plus penalties and interest thereon. It is now acknowledged that a portion of the
sales tax audit included amounts which were also included on later filed
returns by COMPANY A, and are included in the above amounts. Because COMPANY A failed to make payments of
the tax amounts due, Respondent issued a Statutory Notice dated April 11, 2001
to each of the Petitioners to impose a personal penalty assessment in an amount
of $$$$$ pursuant to the provisions of Utah Code Ann. §59-1-302(2), for
willfully failing to collect the tax, and failing to truthfully account for and
pay over the tax. A timely Petition for
Redetermination was filed for the statutory notice issued to PETITIONER 2. However, the parties have stipulated that
the Petition for Redetermination was intended by Petitioners to also apply to
the statutory notice issued to PETITIONER 1.
The Division has not objected to the Commission's Order applying to both
individuals in this proceeding.
At the hearing,
Petitioners admitted that for all of the periods referenced in the statutory
notices, they were the persons responsible for the collection, accounting and
payment of the sales and withholding tax obligations. This admission is supported by corporate records, sales tax
returns, and sales tax applications.
Petitioners further admitted they are liable for the sales and
withholding tax shown on the declared returns, but they challenge their
responsibility and liability for the tax based upon the audit.
Respondent acknowledges
that Petitioners did not have actual knowledge of the failure of COMPANY A to
collect the sales tax represented by the audit until September 30, 1999. Respondent alleges that Petitioner began
accruing, but not remitting, the appropriate sales tax as of that date. However, there is nothing in writing to
document any such notice to Petitioners as of September 30, 1999. The first written documentation presented at
the hearing is Exhibit R-4 which was the preliminary notice of the audit sent
to COMPANY A on October 13, 2000.
Eighteen days thereafter, on or about October 31, 2000, COMPANY A ceased
operations as a company, and has not actively been in business since that date.
Respondent alleges that
after September 30, 1999, COMPANY A received the following amounts as total
receipts:
Fourth Quarter 1999 $$$$$
First Quarter 2000 $$$$$
Second Quarter 2000 $$$$$
Third Quarter 2000 $$$$$
Total $$$$$
After COMPANY A ceased doing business at the
end of October 2000, there is no property remaining in COMPANY A to be used to
satisfy its obligations to Respondent.
APPLICABLE
LAW
Utah Code Ann. §59-1-302
provides as follows:
(1) The provisions of this
section apply to the following taxes in this title:
(a) state and local sales and use tax under
Chapter 12, Parts 1 and 2;
(b) transient room tax under Chapter 12, Part 3;
(c) resort communities tax under Chapter 12,
Part 4;
(d) public transit tax under Chapter 12, Part 5;
(e) tourism, recreation, cultural, and
convention facilities tax under Chapter 12, Part 6;
(f) motor fuel, clean fuel, special fuel, and
aviation fuel taxes under Chapter 13, Parts 2, 3, and 4: and
(g) withholding tax under Chapter 10, Part 4.
(2) Any person
required to collect, truthfully account for, and pay over any tax listed in
Subsection (1) who willfully fails to collect the tax, fails to truthfully
account for and pay over the tax, or attempts in any manner to evade or defeat
any tax or the payment of the tax, shall be liable for a penalty equal to the
total amount of the tax evaded, not collected, not accounted for, or not paid
over. This penalty is in addition to
other penalties provided by law.
. . . .
(7)(a) In any
hearing before the commission and in any judicial review of the hearing, the
commission and the court shall consider any inference and evidence that a
person has willfully failed to collect, truthfully account for, or pay over any
tax listed in Subsection (1).
(b) It is prima facie evidence that a person has
willfully failed to collect, truthfully account for, or pay over any of the
taxes listed in Subsection (1) if the commission or a court finds that the
person charged with the responsibility of collecting, accounting for, or paying
over the taxes:
(i) made a voluntary, conscious, and intentional
decision to prefer other creditors over the state government or utilize the tax
money for personal purposes;
(ii) recklessly disregarded obvious or known
risks, which resulted in the failure to collect, account for, or pay over the
tax; or
(iii) failed to investigate or to correct
mismanagement, having notice that the tax was not or is not being collected,
accounted for, or paid over as provided by law.
(c) The Commission or
court need not find a bad motive or specific intent to defraud the government
or deprive it of revenue to establish willfulness under this section.
Internal
Revenue Code Section 6672(a) is nearly identical with Utah Code Ann.
§59-1-302(2) and provides in relevant part:
"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."
DISCUSSION
Section 6672 of the
Internal Revenue Code is a very similar statute to Utah Code Ann.
§59-1-302(2). However, §6672 does not
contain the presumptions or prima facie evidence standards set forth in
§59-1-302(7). There are numerous federal court cases dealing with §6672, but
there are very few Utah court cases dealing with §59-1-302. Therefore, because of the similarity of the
statutes, the Commission determines that reference to the federal cases
interpreting §6672 is helpful, but not controlling, in analyzing the
application of §59-1-302.
The Memorandum of Points
and Legal Authorities in Support of the Taxpayer's Appeal of Any Personal
Liability (Petitioner's Brief) by counsel for Petitioners contains the
following statement:
According to the Internal Revenue Service policy statement, the penalty of tax will only be assessed if it cannot be collected from the corporation itself. This is also a policy that should apply at the state level. There is no clear evidence in the record that all collection remedies against the business have been exhausted. In fact, there is little evidence that the Tax Commission did anything to collect the tax from the business itself. There is no proactive conduct in the record as to tax collection activities at the time the business was active and the state had the legal right to compel payment through judicial or administrative means. (Petitioners' Brief, p. 18).
The Commission is in
general agreement that the primary collection efforts should be directed at the
corporation that is the taxpayer and primary obligor. However, if for any reason the corporation will not or does not
make the required payment of taxes, then the purpose of U.C.A. §59-1-302 is to
impose legal responsibility for the payment of the taxes upon the individuals
who were responsible for ensuring corporate compliance with the tax laws of the
State of Utah.
Portions of the above
statement imply that the Commission cannot or should not pursue the responsible
corporate officials until "all collection remedies against the business
have been exhausted", and it also infers that Respondent has the burden of
proof to establish that it has exhausted all other avenues of collection before
it may pursue the responsible corporate authorities for collection of
delinquent taxes. Any such inferences
are erroneous, especially in a case such as this. The Division is not precluded
from pursuing the individuals at the same time it is pursuing collection from
the corporation.
The Post Hearing
Memorandum filed by Respondent, on page 4, states: "13. COMPANY A
ceased business late in 2000 and there is no property remaining for COMPANY A
to satisfy its obligations." In
the Initial Hearing, Petitioners acknowledged the company had ceased operations
and does not have any remaining assets.
Therefore, any efforts to pursue collection from the company would
likely be fruitless. In addition, if
Petitioners believe collection efforts against the company may be successful,
they have an obligation and burden to make such an allegation in their
pleadings and to be cooperative in assisting any such collection efforts.
The above arguments also
make the mistaken assumption that the burden is on the Division to demonstrate
the appropriateness of the assessment of the penalty against Petitioners. On the contrary, Petitioners, as the
individuals against whom a trust fund tax penalty is assessed, have the burden
of proving any lack of responsibility, willfulness, or the inappropriateness of
the assessment. Winter v. United
States, 196 F.3d 339, 344-45 (2d Cir. 1999); Fiataruolo v. United States,
8 F.3d 930, 938 (2d Cir. 19930; United States v. Pomponio, 635 F.2d 293,
296 (4th Cir. 1980); Brown v. United States, 591 F.2d 1136,
1140 (5th Cir. 1979).
Notwithstanding some inferences in
Petitioners' Brief to the contrary, Utah Code Ann. §59-1-302 clearly applies to
sales tax. Paragraph 1, in relevant
part, says:
"(1) The provisions of this section apply to the following taxes in
this title:
(a) state and local sales and use tax
under Chapter 12, Parts 1 and 2.
Sales
and use tax is one of those which is subject to the personal penalty assessment
under U.C.A. §59-1-302.
Utah Code Ann.
§59-2-302(2) provides as follows:
(2) Any person required to collect, truthfully account for, and pay over any tax listed in Subsection (1) who willfully fails to collect the tax, fails to truthfully account for and pay over the tax, or attempts in any manner to evade or defeat any tax or the payment of the tax, shall be liable for a penalty equal to the total amount of the tax evaded, not collected, not accounted for, or not paid over. This penalty is in addition to other penalties provided by law.
This statute provides
two criteria that must be proven to establish liability: (1) the person must be a responsible person,
which is the person required to collect, account for, or pay the taxes; and (2)
the person must "willfully" fail to collect, account for, or pay over
the taxes.
With respect to the
federal statute, the courts have also established similar standards that there
are two (2) basic elements to the penalty tax liability under 26 USC
§6672. First, the party must be the
responsible officer or person. Second,
the identified responsible party or person must willfully fail to collect the
tax, fail to truthfully account for or pay over the tax, or willfully attempt
to evade or defeat the tax or the payment of the tax." Ben D. Spivak v. USA 66-1 USTC ¶9394,
254 F. Supp 517 (DC SD NY 1966); Edward J. Bloom v. USA 59-2USTC ¶9772,
272 F.2d 215 (CA-9 1959); Emil Horowitz v. USA 65-1 USTC ¶9149, 339 F.2d
877 (CA-2 1965); Robert G. Fowler v. USA 93-2 USTC ¶50,365 (DC Wyo.
1993).
In Slodov v. United
States, 436 U.S. 238, 98 S.Ct. 1178, 56 L.Ed. 2d 251 (1978) the United
States Supreme Court held that in §6672 of the Internal Revenue Code, the
phrase "[a]ny person required to collect, truthfully account for, and pay
over any tax by this title" should be read in the disjunctive, not
conjunctive. As such, a responsible
officer must willfully commit only one of those acts, not all three.
The Commission agrees
that the positions stated above, and the court holding in Slodov, supra
set the appropriate standards to be applied in this case.
The federal courts often
review several factors to objectively identify the responsible party under the
statute. Robert G. Braden v. USA
70-2 USTC ¶9554, 318 F.Supp 1189 (DC SD Ohio 1970), aff'd 71-1 USTC ¶9428, 442
F.2d 342 (CA-6 1971). These objective
factors include at least the following:
(1) the duties of the corporate officers, as outlined by the
corporation's by-laws; (2) the ability of the individual to sign checks on
behalf of the corporation; (3) the general makeup of the officers, directors,
and shareholders of the corporation; (4) the identity of individuals who hired and
fired employees; (5) the person or persons in control of the financial affairs
of the corporation; and (7) the person who decided to pay other creditors
instead of the tax liability due to the government. See generally Joseph Datlof v. USA 66-1 USTC ¶9167, 370
F.2d 655 (CA-3 1966); T.J. Marks v. USA 93-2 USTC ¶50,369 (DC ND NY
1993).
In this case, PETITIONER
1 was the President, Director and Registered Agent of the corporation, and
PETITIONER 2 was the Vice-President and a Director of the corporation. Petitioners could both sign checks on behalf
of the corporation, constituted a majority of the directors, could hire and
fire employees, were the persons in control of the financial affairs of the
corporation, signed the quarterly and other tax returns, and decided which
creditors to pay or not pay, and decided whether to continue or discontinue the
business activities of the corporation.
Petitioners are clearly "responsible persons" for purposes of
any penalties imposed under Utah Code Ann. §59-1-302.
Both at the hearing and
in Petitioners' Brief, it was conceded that they were responsible for
collecting, accounting for, and paying over the sales and use tax during the
audit period. Petitioners have not set
forth any facts or arguments why they were not "responsible persons"
under the statute. The Tax Commission
therefore, finds that Petitioners were persons "required to collect,
truthfully account for, and pay over" sales and use tax for COMPANY A.
The United States Congress has not enacted a
statutory definition of "willfully fails" for purposes of §6672 of
the Internal Revenue Code. However, the
Utah Legislature has enacted such a standard in U.C.A. §59-1-302(7)(b) and (c),
which provides:
"(b) it is prima facie evidence that a person has
willfully failed to collect, truthfully account for, or pay over any of the
taxes listed in Subsection (1) if the commission or a court find that the
person charged with the responsibility of collecting, accounting for, or paying
over the taxes:
(i) made a voluntary, conscious, and intentional
decision to prefer other creditors over the state government or utilize the tax
money for personal purposes;
(ii) recklessly disregarded obvious or known
risks, which resulted in the failure to collect, account for, or pay over the
tax; or
(iii) failed to investigate or to correct
mismanagement, having notice that the tax was not or is not being collected,
accounted for, or paid over as provided by law.
(c) The commission or court need not find a bad motive or
specific intent to defraud the government or deprive it of revenue to establish
willfulness under this section.
The portion of that
statute most applicable to this case is paragraph (b)(i), which provides
"a person has willfully failed to collect, truthfully account for, or pay
over the taxes" if such a person has "made a voluntary, conscious,
and intentional decision to prefer other creditors over the state government .
. . ."
The federal standard is
very similar. §6672, supra, provides in
relevant part:
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, . . .
. (Emphasis added).
In federal court cases,
it had been argued that for the penalty to be imposed a person would have to
"willfully fail to collect such tax or truthfully account for and
pay over such tax," i.e., it was argued that if a person filed a correct
return (truthfully accounted for the tax) the penalty could not be imposed
because of a failure to pay over the tax.
The argument was that the statute was in the conjunctive and not the
disjunctive. However, the United States
Supreme Court in Slodov v. United States, supra, held that the
requirement to collect, truthfully account for, and pay over are not
conjunctive but are disjunctive.
Therefore, a person who has failed to collect the tax or to
account for the tax or to pay over the tax, is subject to the personal
penalty assessment.
The Utah statute also
contains terms that could be interpreted in the conjunctive when it provides
that "a person has willfully failed" to comply if such person has
"made a voluntary, conscious, and intentional decision to prefer
other creditors over the state government . . . ." (Emphasis added). However, the Commission determines that provision was intended to
be in the disjunctive and not conjunctive.
In this case, it is clear Petitioners made a "voluntary and
conscious" decision to pay other creditors. A closer question is whether Petitioners made an
"intentional decision to prefer other creditors over the state government
for all of the tax in issue.[1]
In Petitioners Brief, it
is argued as follows:
A central issue that the government must establish is that
the person sought to be charged with personal liability had knowledge of the
tax obligation and duties and chose to act in clear violation of that
understood legal duty. Charles L.
Honey v. USA 91-1 USTC ¶50,073 (DC WD Ark. 1991); M. Z. Greenberg v. USA
95-1 USTC ¶50,053 (CA-3 1995).
The government concedes that prior to September 30, 1999,
the taxpayers did not have actual knowledge of their failure to collect certain
sales tax liabilities due the State Tax Commission. (Brief p. 3, ¶9).
"Willfulness" means there was a specific
intent. Therefore, it appears that the
lack of any knowledge of the fact that the taxes are not properly due, then
this is a complete defense to the violation.
If there is no knowledge that the taxes are not being paid, then the
penalty tax cannot be assessed against the individual. Prior to September 30, 1999, there can be no
liability as a matter of law. Liability
after that date requires an eventual finding by the court of a clear and
intentional violation of an undisputed legal duty.
UCA §59-1-302(7)(b) seems to adopt this high standard as to
"willfulness" and "intent". There is no evidence that suggests the taxes were specifically
used by the taxpayers to pay personal expenses as opposed to valid debts and
liabilities of the business.
The federal courts applying the federal law have clearly
held that being a "responsible party" is not sufficient in and of
itself to impose personal liability.
The party must have acted in a "willful" manner before
liability can be imposed. David
Stettler v. USA 97-1 USTC ¶50,107 (DC Utah 1996) aff'd 98-1 USTC ¶50,136
(CA-10 1998); Ronald S. Howell v.
USA 99-1 USTC ¶50,144 (CA-10 1998).
This means the person sought to be charged with the liability must have
known of his or her legal duty and thereafter intended to violate this legal
duty without reasonable cause for the actions taken. It is important to note the provision in UCA §59-1-301(7)(a)
allows inferences to be drawn in both directions (i.e. as to nonwillfulness as
well as to willfulness).
The courts have held that "willfulness" means there
is actual knowledge of the legal duty imposed upon the person and thereafter an
intent to violate the duty. Edward
J. Finley v. USA 96-1 USTC ¶50,245,82 F.3d 966 (CA-10 1996); In Re: Lou
DeMarco 99-1 USTC ¶50,123 (BC MD Fla 1999); USA v. Peter Pomponio
76-2 USTC ¶9695, 429 US 10, 97 S.Ct. 22, 50 L.Ed.2d. 12 (1976).
Petitioners have
represented they did not know that the audit portion of sales and use tax was
due until the audit was performed by Respondent. The audit report was not mailed to Petitioners until October 13,
2000, only eighteen (18) days before COMPANY A ceased its business
operations. However, Respondent has
represented that some information was provided to Petitioners on September 30,
1999, but the information that may have been so provided on that date was not
specified and there was no documentation of any such information provided as
evidence at the hearing. Petitioners
Brief also refers to the date of September 30, 1999. Therefore, without further information or a challenge to that
date, there is no evidence to refute that on or before September 30, 1999,
Petitioners became aware that the position of Respondent was that the items in
the audit were subject to sales and use tax.
Petitioners have not
explained what transactions they believed were not subject to sales and use
tax, or the reasons for that belief.
Therefore, it is not known whether there was a sound legal basis for
that belief. Accordingly, because the
audit is entitled to a presumption of correctness, the Commission must find
that Petitioners had knowledge of the taxability of the transactions not later
than September 30, 1999. Moreover, the
evidence indicates that COMPANY A began accruing the sales tax obligations as
of that date. Accordingly, any failure
to pay over taxes thereafter was clearly “willful.” Petitioners cannot simply claim they did not know of the
requirements of the law and thereby escape responsibility for the taxes. The axiom, "Ignorance of the law is no
excuse", is applicable to this case.
In Petitioner's Brief,
it is argued that before the personal penalty may be imposed on Petitioners,
the court must consider what each identified responsible party knew and what
each person did once the legal duty was made known to them and what "just
cause", if any there be, that prevented the payment of the taxes. This "just cause" defense,
Petitioners argue, means that the taxpayer willfully acted in not paying the
taxes after he was fully aware of the legal duty and the person had the clear
ability to comply with the law and that the person failed to do so without a
good excuse. Petitioners also argue
this means that when there is a bona fide dispute over the duty, it is
virtually impossible to be found to be acting in derogation of that duty.
With respect to §6672 of
the Internal Revenue Code, some federal courts have allowed a "just
cause" defense to prevent the imposition of the personal penalty
assessment, but the application of that defense is very limited. Newsome v. United States, 431 F.2d
742, 746-747 (5th Cir. 1970).
Even the Tenth Circuit has allowed the defense, but only in cases when
(1) the taxpayer has made reasonable efforts to protect the trust funds, but
(2) those efforts have been frustrated by circumstances outside of taxpayer's
control. Finley v. United States,
123 F.3d 1342, 1348 (10th Cir. 1997). However, once a responsible person uses unencumbered funds to pay
creditors before paying tax obligations, the responsible person is no longer
entitled to the just cause defense. Logal
v. United States, 33 F.3d 589, 592 (6th Cir. 1994); Stauffer
v. United States, 1998 WL 681478 (D.Colo. 1998).
There is also a large
body of federal case law which has rejected the just cause defense. Olsen v. United States, 952 F.2d 236,
241 (8th Cir. 1991); Sorenson v. United States, 521 F.2d 325,
329 (9th Cir. 1975); Harrington v. United States, 504 F.2d
1306, 1316 (1st Cir. 1974); Pacific Nat. Inc. Co. v. United
States, 422 F.2d 26, 33 & n. 19 (9th Cir. 1970); Monday
v. United States, 421 F.2d 1210, 1216 (7th Cir. 1970); United
States v. Strebler, 313 F.2d 402, 403 (8th Cir. 1963); Bloom
v. United States, 272 F.2d 215, 223-224 (9th Cir. 1959).
The just cause defense
has never been recognized as applicable to Utah Code Ann. §59-1-302(2). However, in this case it is not necessary
for the Commission to determine whether there might be some circumstances where
a just cause defense might be applied.
Petitioners have not presented facts which would establish they made
reasonable efforts to protect the trust funds and that those efforts have been
frustrated by circumstances outside of their control. They have also not presented a sound legal or factual basis for
believing the transactions in the audit report were not subject to sales and
use tax. Therefore, even assuming
arguendo that there are circumstances where a just cause defense may be
applicable, there is no evidence supporting the application of such a defense
in this case.
It is also not necessary
for the Commission to determine whether there was a "just cause
defense" because the legislature enacted a statute which establishes the
standard. That statutory standard does
not include a "just cause defense".
The Commission, therefore, determines there is no "just cause
defense" to a personal penalty assessment under U.C.A. §59-1-302.
The basis upon which
Respondent asserts that Petitioners “willfully failed” to pay over the tax is
that the money which came into the company was used “to prefer other creditors
over state government. U.C.A.
§59-1-302(7)(b)(I). Petitioners assert
they are not liable because of their “just cause” defense, i.e., they did not know
about the requirement to pay tax until at least September 30, 1999, and maybe
October 13, 2000.
The Post-Hearing
Memorandum filed by Respondent asserts:
“11. After September
30, 1999, the date the Petitioners first learned that they had failed to
collect the appropriate sales tax for earlier years, COMPANY A received the
following receipts:
First Quarter 1999 $$$$$
First Quarter 2000 $$$$$
Second Quarter 2000 $$$$$
Third Quarter 2000 $$$$$
Total $$$$$
These receipts were reported upon the declared sales tax
returns.
12. The Petitioners
admitted that they had control over these funds and that they controlled the
disbursement of the funds for payments to various creditors."
Those
allegations have not been refuted or disputed by Petitioners, so it is assumed
by the Commission that the allegations are true. Accordingly, the evidence is
that after September 30, 1999, and prior to the cessation of business, COMPANY
A received a total sum of $$$$$, which was used by Petitioners to pay
obligations other than the past-due sales tax liability. Therefore, Petitioners used the funds of the
Company to prefer other creditors over the State of Utah.
Although
no Utah case has addressed the application of Utah Code Annotated §59-1-302,
because 26 U.S.C. §6672 contains identical language, it is appropriate to look
to federal cases for guidance in interpreting the Utah Statute.
Under
federal case law, “responsible persons” under 26 U.S.C. §6672 have willfully
failed to pay over tax if such persons, being aware of a tax delinquency,
intentionally fail to use any unencumbered funds to pay such
delinquencies. In Slodov v. United
States, supra, the United States Supreme Court carved out an
exception to liability under 26 U.S.C. §6672 for responsible persons who
assumed control of a corporation “prior to the expiration of a tax quarter, or
at a time when a tax delinquency for past quarters already exists[.]” Id. At 246 and 259-60. However, in Slodov, the Court stated
the general rule as follows:
“When the same individual or individuals who cause the delinquency in any tax quarter are also the “responsible persons” at the time the Government’s efforts to collect from the employer have failed, and it seeks recourse against the “responsible employees,” [] there is no question that §6672 is applicable to them.”
Id. at 259-60.
In cases involving individuals who are
responsible persons at the time the tax becomes due, the majority of the
federal circuits have interpreted the language in Slodov to mean:
[E]ven if a responsible person did not know contemporaneously of the company’s nonpayment of withholding taxes, he or she will be held liable for any non-payment if, when he or she became aware of the delinquency, the company had liquid assets with which to pay the overdue taxes.
Winter v. United States, 196 F.3d 339, 345-46 (2d Cir. 1999) (emphasis added; citations omitted).
The United States Court of Appeals for the
Tenth Circuit specifically held that the language of Slodov:
“[D]oes not relieve a ‘responsible person’ of the responsibility to reduce accrued withholding tax liability with funds acquired after the funds actually withheld have been dissipated so long as the person responsible has been so throughout the period the withholding tax liability accrued and thereafter.”
Muck v. United States, 3 F.3d 1378, 1381 (10th
Cir. 1993) (emphasis in original; quoting Garsky v. United States, 600
F.2d 86, 91 (7th Cir. 1979)).
The United States Court of Appeals for the Seventh
Circuit described the duty of a responsible person to use unencumbered funds of
the corporation to satisfy tax liability before the funds are put to any other
use:
Even if a “responsible person” is unaware that withholding
taxes have gone unpaid in past quarters, it is settled law that a responsible
person who becomes aware that taxes have gone unpaid in past quarters in which
he was also a responsible person, is under a duty to use all “unencumbered
funds” available to the corporation to pay those back taxes. [] This duty extends not only to funds
available to the corporation at the time the responsible person becomes aware,
but also to any unencumbered funds acquired thereafter. []
If the responsible person fails to use such unencumbered funds to
satisfy the past unpaid liability, he is deemed personally liable for the taxes
that went unpaid in the past while he was responsible. The responsible person deemed liable for the
unpaid liability of the past tax quarters is considered to have “willfully”
failed to pay over the taxes for those past quarters, even though he was
unaware at that time that the taxes were going unpaid.
United States v. Kim, 111 F.3d 1351, 1357-58
(7th Cir. 1996) (emphasis in original; citations omitted).
The burden is on the
responsible person to show that unencumbered funds were not available. Id. at 1359 (citing Honey v. United
States, 963 F.2d 1083, 1087 (8th Cir. 1992)).
Other circuits have
similarly held that responsible persons have a duty to use unencumbered funds acquired
after the obligation becomes payable to satisfy that obligation, and are liable
for failure to do so under 26 U.S.C. §6672[2]. United States v. Rem, 38 F.3d 634,
643 (2d Cir. 1994); United States v. Vespe, 868 F. 2d 1328, 1334 (3d
Cir. 1989); Mazo v. United States, 591 F.2d 1151, 1157 (5th
Cir. 1979); Wright v. United States, 809 F.2d 425, 428 (7th
Cir. 1987); Purdy v. United States, 814 F.2d 1183, 1188 (7th
Cir. 1986); Garsky v. United States, 600 F.2d 86, 91 (7th
Cir. 1979); Honey v. United States, 963 F.2d 1083, 1089 (8th
Cir. 1992); Kizzier v. United States, 598 F.2d 1128, 1132-33 (8th
Cir. 1979); Davis v. United States, 961 F.2d 867, 872-78 (9th
Cir. 1992); Denbo v. United States, 988 F.2d 1029, 1035 (10th
Cir. 1993).
The obligation of
responsible officers to use unencumbered funds to satisfy tax delinquencies
gives rise to the additional rule that a responsible person may not use
unencumbered funds in such a way as to prefer alternative uses of the funds,
such as payment of other creditors instead of the tax obligations. Id.; Winter, 196 F.3d at 345-46; Kim,
111 F.3d at 1357-58; Muck, 3 F.3d at 1381. See also Caterino v. United States, 794 F.2d 1, 6 (1st
Cir. 1986); Plett v. United States, 185 F.2d 216, 219 (4th
Cir. 1999); Collins v. United States, 848 F.2d 740, 742 (6th
Cir. 1988); Wright v. United States, 809 F.2d 425, 428 (7th
Cir. 1986); Teel v. United States, 529 F.2d 903, 905 (9th
Cir. 1976); Malloy v. United States, 17 F.3d 329, 332 (11th
Cir. 1994).
This rule has been
codified by the legislature of this state.
Utah Code Ann. §59-1-302(7)(b)(i).
Thus, the legislature intended for a responsible person to have a duty
to use any unencumbered funds to satisfy tax liabilities before using those
funds for any other use. If a
responsible person is aware of tax delinquencies at a time when unencumbered
funds are available to a corporation, that person cannot escape the obligation
to satisfy tax delinquencies just because the responsible person was not aware
of the tax liabilities at the time the liabilities became due.
In this case, there is no doubt that Petitioners willfully failed to collect and pay over $$$$$ reported but unpaid on the corporation’s sales tax return. There is no doubt that Petitioners willfully failed to pay over $$$$$ in withholding tax. The evidence also discloses that Petitioners willfully failed to pay over sales taxes after September 30, 1999, even though those taxes were accrued on the books of the corporation. Accordingly, we find Petitioners personally liable for the 100% penalty on all of those taxes.
The more difficult question is the extent
of personal liability for sales tax imposed by the audit for the periods prior
to September 30, 1999. Respondent does
not contend that Petitioners or COMPANY A collected those taxes from their
customers. Thus, there are no “trust
funds” involved.
The evidence does support a conclusion,
however, that Petitioners knew, as early as September 30, 1999, that the
Auditing Division would be asserting a claim for unpaid taxes for those
periods. The only evidence of the
amount of the deficiency claimed, however, is a preliminary notice of audit
results issued in October, 2000. That
notice was not contested and has become final.
COMPANY A ceased business within weeks thereafter. Accordingly, the existence and amount of the
corporate sales tax liability is not in issue.
The evidence also discloses that funds far
in excess of the claimed liability passed through the corporation between
September 30, 1999, and the date the corporation ceased doing business. Petitioners presented no evidence of any
encumbrances on those funds. Thus, we
find that Petitioners knew that a deficiency would be asserted in some amount
for uncollected and unpaid sales taxes for the periods before September 30, and
that they willfully used funds after that date to pay other creditors.
The question
presented here is whether those facts justify the 100% penalty under Section
59-2-302(2). That Section imposes a
penalty on any person who “willfully fails to collect the tax, fails to
truthfully account for and pay over the tax, or attempts in any manner to evade
or defeat any tax or the payment of any tax.”
As noted above, those criteria are in the disjunctive, i.e., the penalty
would seem to be imposed any time any one of those criteria is met. See, Slodov, above. Notwithstanding this broad language,
however, we are unaware of any case in which the penalty (or its federal
counterpart) has been applied, where trust funds were not involved. In Slodov, for example, there
was no question that the corporation had withheld income taxes from its
employees. Those taxes were never the
property of the corporation. They were
federal trust funds. Responsible
officers who took over the corporation, knowing it had unpaid trust fund
liabilities, would be personally liable for those taxes if they failed to use
existing unencumbered corporate assets to pay those taxes. Mr. Slodov, however, was not personally
liable for failing to use after acquired corporate assets to pay those trust
fund liabilities.
We are aware of any number of cases where
corporations have gone out of business with unpaid use tax or income tax
liabilities. Responsible officers are
typically not assessed the 100% penalty if all trust fund taxes have been paid.
We do not
here determine whether such a penalty would be lawful. There is language in the
Utah statute that clearly supports the conclusion that the penalty is not
limited to unpaid trust funds. Section 59-1-302(2)
imposes the penalty on any person “who willfully fails to collect the tax”
equal to the amount of the tax “not collected.” Thus, the statutory language clearly encompasses situations where
the taxes were not collected and trust funds are not misappropriated.[3]
In this case, we decline to impose the
penalty that broadly. The amount of the pre-September 30 liability was not
finally known and communicated to the corporation until October 2001. At that time, the notice was merely
preliminary. The corporation ceased
business shortly thereafter. There is
no evidence of any unencumbered funds received after the liability was known
that were used to benefit other creditors.
Accordingly, in this case we believe the penalty should be limited to
the reported liabilities for sales and income tax withholding and to any
additional sales taxes accrued by COMPANY A after September 30, 1999.
DECISION
AND ORDER
Based upon the
foregoing, the Commission determines that Petitioners were responsible parties
and that they were required to collect, truthfully account for, and pay over
the withholding taxes, and that they willfully failed to do so by paying
unencumbered funds to other creditors for other uses, which constituted a
voluntary, conscience and intentional decision to prefer other creditors over
the State Government. The Commission
further determines that Petitioners were responsible parties and that they were
required to collect, truthfully account for, and pay over the sales and use
taxes shown on reported returns or accrued on the books of COMPANY A, and that
they willfully failed to do so by paying unencumbered funds to other creditors
for other uses, which constituted a voluntary, conscience and intentional
decision to prefer other creditors over the State Government. The Commission declines to impose the
penalty to the extent it relates to pre-September 1999 liabilities not reported
on COMPANY A’s tax returns and not collected by COMPANY A.
This decision does not
limit a party's right to a Formal Hearing.
However, this Decision and Order will become the Final Decision and
Order of the Commission unless any party to this case files a written request
within thirty (30) days of the date of this decision to proceed to a Formal
Hearing. Such a request shall be mailed
to the address listed below and must include the Petitioner's name, address,
and appeal number:
Utah
State Tax Commission
Appeals
Division
Salt
Lake City, Utah 84134
Failure
to request a Formal Hearing will preclude any further appeal rights in this
matter.
DATED this 27th day
of November , 2002.
____________________________________
G. Blaine Davis
Administrative Law Judge
BY ORDER OF THE UTAH STATE TAX
COMMISSION.
The Commission has reviewed
this case and the undersigned concur in this decision.
DATED this 27th day of November , 2002.
Pam Hendrickson R.
Bruce Johnson
Commission Chair Commissioner
Palmer DePaulis Marc
B. Johnson
Commissioner Commissioner
[1] It is clear that Peititoners made such a conscious decision with regard to the $31,597.84 in sales tax and the $7,254.78 in withholding tax that was reported on returns but not paid to the state.
[2] While the United States District Court for the District of Utah held to the contrary, Johnson v. Comm'r of Internal Revenue, 663 F.Supp. 294 (D.Utah 1987), this case was effectively overruled by Muck.
[3] Withholding taxes are also trust fund taxes. When wages are paid, the employer is deemed to pay the gross amount of the wages to its employees. The income taxes that are then withheld are effectively payments by the employees of estimated income taxes to the government through the employer. The employee is credited with that withholding, whether or not the employer actually pays over the taxes to the government. Utah Code Ann. Sections 59-10-402(3), 406(5)(a).