Ador v. Action marine/randall

• Court: Arizona Supreme Court
• Decided: April 9, 2008
• Status: Published

Opinion

SUPREME COURT OF ARIZONA En Banc

THE ARIZONA DEPARTMENT OF ) Arizona Supreme Court REVENUE, ) No. CV-07-0288-PR ) Plaintiff-Appellee, ) Court of Appeals ) Division One v. ) No. 1 CA-TX 06-0006 ) ACTION MARINE, INC., an Arizona ) Arizona Tax Court corporation; MELVIN G. RANDALL ) No. TX2004-000656 and MARTHA RANDALL, husband and ) wife; M. DANIEL RANDALL and LISA ) RANDALL, husband and wife; JOHN ) D. RANDALL and BELINDA RANDALL, ) O P I N I O N husband and wife, ) ) Defendants-Appellants. ) _________________________________ )

Appeal from the Arizona Tax Court The Honorable Mark W. Armstrong, Judge (Retired)

VACATED AND REMANDED ________________________________________________________________

Opinion of the Court of Appeals, Division One 215 Ariz. 584, 161 P.3d 1248 (2007)

VACATED ________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix By Anthony S. Vitagliano, Chief Counsel Tax, Bankruptcy & Collections Section Paula S. Bickett, Chief Counsel, Civil Appeals Section Attorneys for Arizona Department of Revenue

TROMPETER, SCHIFFMAN, PETROVITS, FRIEDMAN, & HULSE, L.L.P. Phoenix By Jack B. Schiffman Attorneys for Action Marine Inc., Melvin G. Randall, Martha Randall, M. Daniel Randall, Lisa Randall, John D. Randall, and Belinda Randall ________________________________________________________________ B E R C H, Vice Chief Justice

¶1 We have been asked to decide whether a corporate

officer or director may be held personally liable under Arizona

Revised Statutes (“A.R.S.”) section 42-5028 (2006) for failing

to remit to the Arizona Department of Revenue money collected

from the corporation’s customers to pay transaction privilege

taxes. We hold that § 42-5028 provides for such personal

liability.

I. FACTS AND PROCEDURAL HISTORY

¶2 Melvin, John, and Daniel Randall were shareholders and

directors of Action Marine, Inc., an Arizona corporation that

sold boats and other marine products. John and Daniel were also

officers of Action Marine. In July 2002, Action Marine filed

for reorganization under Chapter 11 of the Bankruptcy Code.

Five months later, the bankruptcy court converted the case to

one for liquidation under Chapter 7 and ordered Action Marine to

file post-petition transaction privilege tax (“TPT”) returns for

June through November 2002.

¶3 The returns showed that during that period, Action

Marine’s gross receipts totaled $812,294.00, resulting in a TPT

liability of $51,174.52. In October 2004, the Arizona

Department of Revenue (“ADOR”) filed a complaint in the tax

court seeking to recover unpaid TPTs, penalties, interest, and

costs pursuant to A.R.S. § 42-5028. ADOR and the Randalls each - 2 - moved for summary judgment. The tax court granted ADOR’s

motion, holding the Randalls personally liable for unpaid TPTs,

penalties, interest, and costs.

¶4 The court of appeals reversed, reasoning that

corporate officers cannot be personally liable because such

officers are not listed as “persons” in A.R.S. § 42-5001(8)

(2006) and no other statute imposes a duty to remit the

corporation’s TPTs. Ariz. Dep’t of Revenue v. Action Marine,

Inc., 215 Ariz. 584, 587, ¶ 16, 161 P.3d 1248, 1251 (App. 2007).

¶5 We granted ADOR’s petition for review because this

case presents an issue of statewide importance, see ARCAP

23(c)(3), and ADOR has averred that resolution of this issue may

affect many cases, both pending and planned. We have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶6 “The transaction privilege tax . . . is an excise tax

on the privilege or right to engage in an occupation or business

in the State of Arizona.” Ariz. Dep’t of Revenue v. Mountain

States Tel. & Tel. Co., 113 Ariz. 467, 468, 556 P.2d 1129, 1130

(1976). The TPT is not a sales tax, Ariz. State Tax Comm’n v.

Garrett Corp., 79 Ariz. 389, 391, 291 P.2d 208, 209 (1955), but

rather is a tax on the gross receipts of a person or entity

engaged in business activities. A.R.S. § 42-5008 (2006). - 3 - ¶7 The liability for TPT falls on the taxpayer, not on

the taxpayer’s customers. A.R.S. § 42-5024 (2006). Taxpayers

may pay the TPT themselves or charge customers a separately

itemized amount to cover TPTs. See A.R.S. § 42-5002(A)(1)

(2006). If the taxpayer chooses to impose a separate charge, it

must remit all money collected to ADOR, even if it collects more

than the taxpayer owes for TPTs. Id.; Garrett, 79 Ariz. at 392-

93, 291 P.2d at 210.

¶8 The TPT is not technically a trust tax because

taxpayers are not required to collect TPT from customers or hold

the money in a trust account for the state. See Joseph

DiGiuseppe, What Every Tax Practitioner Needs to Know About

Trust Fund Taxes and Responsible Person Liability in Bankruptcy,

17 Prac. Tax Law. 7, 8 (2002). When, however, the taxpayer

elects to separately charge customers a “tax” to cover the TPT,

§ 42-5002(A)(1) operates to achieve a similar result by

requiring that any amounts so charged be fully remitted to the

state. These collected “taxes” do not belong to and are not for

the use of the taxpayer. See DiGiuseppe, supra, at 10-11

(noting that trust fund taxes are not the property of the

retailer and are not dischargeable in bankruptcy); Marvin A.

Kirsner, Richard S. Miller & David Neier, Officers’ and

Directors’ Nightmare: Being Held Personally Liable for Debtor

Company’s Unpaid Taxes, N.Y.L.J., Aug. 27, 2001, at 7 & n.7 - 4 - (noting that charges for taxes should be considered the

“property of the taxing authority”).

A. Liability Under A.R.S. § 42-5028

¶9 The question before us is whether corporate officers

or directors may be held personally liable if the corporation-

taxpayer fails to remit to ADOR the additional amount charged to

customers to cover TPT liability. The resolution of the issue

turns on A.R.S. § 42-5028, which provides as follows:

A person who fails to remit any additional charge made to cover the [TPT] or truthfully account for and pay over any such amount is, in addition to other penalties provided by law, personally liable for the total amount of the additional charge so made and not accounted for or paid over.

(Emphases added.) The parties dispute the meanings of “person”

and “additional charge” as those terms are used in this statute.

¶10 We review the interpretation of statutory provisions

de novo. State ex rel. Ariz. Dep’t of Revenue v. Capitol

Castings, Inc., 207 Ariz. 445, 447, ¶ 9, 88 P.3d 159, 161

(2004). Our primary goal is to “discern and give effect to

legislative intent.” Id. (quoting People’s Choice TV Corp. v.

City of Tucson, 202 Ariz. 401, 403, ¶ 7, 46 P.3d 412, 414

(2002)). “We ‘construe the statute as a whole, and consider its

context, language, subject matter, historical background,

effects and consequences, [and] its spirit and purpose.’” Id.

(quoting People’s Choice, 202 Ariz. at 403, ¶ 7, 46 P.3d at

- 5 - 414). We construe related statutes together, State ex rel.

Larson v. Farley, 106 Ariz. 119, 122, 471 P.2d 731, 734 (1970),

and avoid interpretations that render statutory provisions

meaningless, unnecessary, or duplicative, see, e.g., Kriz v.

Buckeye Petroleum Co., 145 Ariz. 374, 379, 701 P.2d 1182, 1187

(1985).

1. Meaning of “Person” in A.R.S. § 42-5028

¶11 The TPT statutory scheme defines both “person” and

“taxpayer.” Unless the context otherwise requires, the term

“person” “includes an individual . . . [or] corporation,” A.R.S.

§ 42-5001(8), and “taxpayer” “means any person who is liable for

any tax which is imposed by this article,” id. § 42-5001(18).

ADOR maintains that the legislature intended “person” in § 42-

5028 to include corporate officers or directors as well as the

taxpayer, while the Randalls assert that “person” means only the

taxpayer-entity.

¶12 For several reasons, we agree with ADOR. As a textual

matter, although the statutory definition of “person” does not

explicitly include corporate officers or directors, the

definition is certainly broad enough to encompass the

individuals who hold such offices. Moreover, had the

legislature meant to limit liability under § 42-5028 to the

taxpayer-entity, as the Randalls and court of appeals maintain,

it likely would not have said “person,” but would have used the - 6 - term “taxpayer,” as it did, for example, in A.R.S. § 42-5024, a

related TPT statute.1

¶13 Several aspects of the statutory scheme also suggest

that, by using the term “person” in § 42-5028, the legislature

meant to include persons in addition to the taxpayer. Even

before the legislature enacted § 42-5028, other statutes already

made TPT the “personal debt of the taxpayer,” A.R.S. § 42-5024,

and required taxpayers “who impose[d] an added charge to cover

the [TPT]” to remit to ADOR all of “the amount so collected,”

A.R.S. § 42-5002(A)(1).

¶14 For at least twenty-five years before § 42-5028 was

enacted in 1980, these two statutes, §§ 42-5002(A)(1) and 42-

5024, worked in tandem to obligate the taxpayer to pay TPT,

interest, and penalties, and to remit to ADOR all amounts

collected from customers to cover TPT liability. See 1935 Ariz.

Sess. Laws, ch. 77, § 18(b) (Reg. Sess.) (enacting the current

substantive version of A.R.S. § 42-5024); 1954 Ariz. Sess. Laws,

ch. 136, § 1 (2d Reg. Sess.) (enacting the current substantive

version of A.R.S. § 42-5002(A)(1)); 1980 Ariz. Sess. Laws, ch.

220, § 8 (2d Reg. Sess.) (enacting the current version of A.R.S.

§ 42-5028). Therefore, reading the word “person” in § 42-5028

to mean only “taxpayer” would duplicate liability already

1 The legislative history for A.R.S. § 42-1336, the original section number for A.R.S. § 42-5028, provides little guidance on the meaning of the word “person.” - 7 - imposed on the taxpayer by §§ 42-5002(A)(1) and 42-5024. We

generally construe statutes to avoid rendering provisions

duplicative. See City of Tucson v. Clear Channel Outdoor, Inc.,

209 Ariz. 544, 552, ¶ 31, 105 P.3d 1163, 1171 (2005). Because

taxpayers were already liable for TPT, interest, and penalties

before 1980, the legislature must have intended to impose some

different or additional obligation when it enacted § 42-5028.

¶15 The legislature’s enactment of A.R.S. § 43-435 (2006)

in the same bill in which it enacted § 42-5028 also suggests

that the legislature intended “person” to include others in

addition to the “taxpayer.” 1980 Ariz. Sess. Laws, ch. 220,

§ 18 (2d Reg. Sess.). Section 43-435 imposes personal liability

on persons required to withhold income tax who fail to collect

or remit the taxes:

Any person required to collect, truthfully account for and pay over any [withholding] tax imposed by this title who fails to do so is, in addition to other penalties provided by law, personally liable for the total amount of the tax not collected or accounted for and paid over.

A.R.S. § 43-435.

¶16 Before § 43-435 was enacted in 1980, two sections of

the 1978 income tax code made the employer responsible for

remitting to ADOR withholding taxes “required to be deducted and

withheld,” see A.R.S. §§ 43-414, -415 (2006), just as §§ 42-5008

and 42-5024 did for TPTs. The enactment of § 43-435 extended

- 8 - liability beyond the employer; it made any “person required to

collect, . . . account for and pay over” income taxes to ADOR

personally liable. The concurrent enactment of §§ 42-5028 and

43-435 indicates that the legislature similarly intended the

word “person” in § 42-5028 to extend personal liability to

persons other than the taxpayer.2

¶17 Moreover, interpreting “person” to include corporate

officers or directors assuages concerns that such persons might

abuse the privilege of limited liability protection by

collecting money from customers under the guise of a state-

imposed tax, using such monies for other purposes, forcing the

taxpayer into bankruptcy, and later claiming limited liability

protection. Cf. Garrett, 79 Ariz. at 392-93, 291 P.2d at 210

(noting legislature’s intent to preclude taxpayers from

profiting by collecting money under the guise of a tax). It

also encourages those charged with remitting separately

collected TPT funds to remit them promptly to ADOR.

¶18 Finally, we note that of the states that have a sales,

transaction privilege, or similar tax, a supermajority

statutorily imposes personal liability on corporate officers.3

2 ADOR has been pursuing withheld taxes from corporate officers and directors under this interpretation of § 43-435. 3 E.g., Ark. Code Ann. § 26-18-501 (1997); Cal. Rev. & Tax. Code § 6829(a) (1998); Colo. Rev. Stat. § 39-21-116.5 (2007); Conn. Gen. Stat. § 12-414a (2000); Del. Code Ann. tit. 30, - 9 - While including corporate officers within the definition of

“person” in § 42-5001(8) would have unmistakably established our

legislature’s intent and forestalled this lawsuit,4 we conclude

that by enacting § 42-5028, the legislature meant to bring

Arizona within the national trend of imposing personal liability

on those individuals who fail to remit such taxes.

¶19 Nonetheless, the Randalls argue and the court of

appeals held that “person” does not include corporate officers

or directors because no statute imposes a duty on them to remit

TPTs. See Action Marine, 215 Ariz. at 587, ¶ 16, 161 P.3d at

1251. As support for this position, the court of appeals relied

§ 535(e) (1997); Fla. Stat. § 213.29 (2005); Ga. Code Ann. § 48- 2-52 (1999); Idaho Code Ann. § 63-3627 (2007); 35 Ill. Comp. Stat. 735/3-7(a) (1996); Ind. Code § 6-2.5-9-3 (2003); Iowa Code § 421.26 (2006); Kan. Stat. Ann. § 79-3643 (1997); Ky. Rev. Stat. Ann. § 139.185 (2006); Me. Rev. Stat. Ann. tit. 36, § 177 (1990); Md. Code Ann., Tax-Gen. § 11-601(d) (2004); 830 Mass. Code Regs. 62C.31A.1 (2008); Mich. Comp. Laws § 205.27a(5) (2001); Minn. Stat. § 270C.56 (2007); Miss. Code Ann. § 27-65-55 (2005); Mo. Rev. Stat. § 144.157 (2006); Mont. Code Ann. § 15- 68-811 (2007); Nev. Rev. Stat. § 360.297 (2007); N.J. Stat. Ann. §§ 54:32B-2(w) & 54:32B-14(a) (2002); N.Y. Tax Law § 1133 (2004); N.D. Cent. Code § 57-39.2-15.2 (2005); Ohio Rev. Code Ann. § 5739.33 (2007); Okla. Stat. tit. 68, § 1361(A) (2001); 72 Pa. Cons. Stat. §§ 7201(e) & 7237(b) (2000); R.I. Gen. Laws § 44-19-35 (2005); S.D. Codified Laws § 10-45-55 (2004); Vt. Stat. Ann. tit. 32, § 9703(a) (2001); W. Va. Code § 11-15-17 (2005); Wis. Stat. § 77.60(9) (2004). 4 Some states impose liability on officers directly, e.g., Ga. Code Ann. § 48-2-52, while others impose liability on “any officer, member, manager, partner, or other person,” Cal. Rev. & Tax. Code § 6829(a). In addition, some states impose liability on persons, but define “person” to expressly include officers. E.g., Wis. Stat. § 77.60(9). - 10 - on State v. Angelo, 166 Ariz. 24, 800 P.2d 11 (App. 1990), and

In re Inselman, 334 B.R. 267 (Bankr. D. Ariz. 2005).

¶20 In Angelo, the court of appeals addressed whether

corporate officers could be held criminally liable for failing

to file a corporation’s TPT returns. 166 Ariz. at 25, 800 P.2d

at 12. The court declined to impose criminal liability because

no statute imposed a duty on corporate officers to file such

returns. Id. at 27-28, 800 P.2d at 14-15. The court

recognized, however, that “disregarding [the] corporate form

might conceivably be appropriate in the context of civil tax

liability.” Id. In Inselman, the bankruptcy court denied

ADOR’s claim against a debtor who was the managing member of a

limited liability company that failed to pay its TPTs. 334 B.R.

at 268, 271. Relying on the reasoning in Angelo, the bankruptcy

judge found no personal liability because the TPT statutory

scheme does not impose a statutory duty on anyone other than the

taxpayer to pay the company’s TPT. Id. at 270-71.

¶21 Angelo decided whether criminal liability could be

imposed for failure to file returns, an issue not before us, and

we decline to follow Inselman. For purposes of imposing

personal civil liability, the issue is not whether corporate

officers or directors have a statutory duty to file the

corporation’s tax returns or pay the taxpayer’s TPT, but whether

those persons who have assumed a duty to remit monies collected - 11 - to cover the taxpayer’s TPT may be civilly liable for failing to

remit them. The statutes permit corporate officers or directors

to make the business decision to either pay the tax directly

from the taxpayer’s funds or collect it from customers under the

guise of a “tax.” See Garrett, 79 Ariz. at 392-93, 291 P.2d at

210. In the latter case, an officer or director who holds,

maintains control over, or has responsibility for the money

collected separately as TPT assumes a duty to remit that is not

otherwise statutorily imposed. Such persons must accept both

the benefits and burdens of the decision to charge separately

for TPTs. The benefit of collecting the money from customers as

“tax” (money in hand) must be taken with the burden (exposure to

statutorily imposed personal liability for failing to remit the

money so collected). A.R.S. §§ 42-5002(A)(1), -5028. Section

42-5028 applies only after corporate officers or directors elect

to collect a separate TPT charge and then fail to remit the

money collected. The court of appeals erred in concluding that

the duty to remit must be statutorily imposed before civil

liability can be enforced.

2. Meaning of “Additional Charge” in A.R.S. § 42-5028

¶22 Having concluded that “person” under § 42-5028 may

include corporate officers or directors, we must determine the

meaning of the phrase “additional charge.” The Randalls argue

that “additional charge” in § 42-5028 means only the amount - 12 - collected from customers that exceeds the taxpayer’s TPT

liability for a particular transaction. We disagree.

¶23 Section 42-5028 provides that a “person who fails to

remit any additional charge made to cover the [TPT] . . . [is]

personally liable for the total amount of the additional charge

so made” and not remitted (emphases added). The term

“additional charge” is defined by the text of the statute

itself. The statute provides that the “additional charge” is

that charge “made to cover the tax.” If “additional charge”

referred only to any amount that exceeds the TPT owed, as the

Randalls maintain, the charge would not be “made to cover the

[TPT]” because the TPT would have already been “covered.” See

State Tax Comm’n v. Quebedeaux Chevrolet, 71 Ariz. 280, 288, 226

P.2d 549, 554 (1951) (quoting with approval case recognizing

that “additional charge” refers to the entire amount collected

from customers).

¶24 The Randalls counter that Arizona Department of

Revenue v. Canyoneers, Inc., 200 Ariz. 139, 143, ¶¶ 14-15, 23

P.3d 684, 688 (App. 2001), has determined that “additional

charge” means only amounts in excess of the effective TPT for a

given transaction. Canyoneers, however, decided a different

issue. The court in Canyoneers decided whether under A.R.S. §

42-1118(A) (2006) a taxpayer was entitled to a refund of TPT

mistakenly paid to ADOR when the underlying business activity - 13 - was not subject to the TPT. Id. at 140-41, ¶¶ 1-4, 23 P.3d at

685-86. The court decided only that a taxpayer entitled to a

refund of TPT that was never owed to ADOR was not also entitled

to a refund of any amount that exceeded the effective TPT for

any transaction. Id. at 143, ¶¶ 14-15, 23 P.3d at 688. The

court sought to prevent companies from adding an extra profit to

its sales under the guise of a compulsory tax. Id. ¶ 15 n.3.

Because Canyoneers is not on point, its passing “see” reference

to § 42-5028 provides no guidance. We conclude that the term

“additional charge” in § 42-5028 means the entire amount charged

to customers to cover the taxpayer’s TPT liability.5

3. Response to the Dissent

¶25 Our dissenting colleagues propose that § 42-5028

imposes an additional penalty on the taxpayer over and above the

liability for the TPT, interest, and penalties imposed under

§ 42-5024.6 This interpretation assumes that only the taxpayer

“who ‘imposes’ the additional charge” under § 42-5002(A) may be

5 We also reject the Randalls’ argument that “added charge,” as that term is used in A.R.S. § 42-5002(A)(1), means something different from “additional charge,” the term used in § 42-5028. Both derive from the base verb “add” and both refer to charges to customers to cover taxes — up to and exceeding the statutory rate. 6 No party has advanced this interpretation in this court. It presents a third potential meaning of A.R.S. § 42-5028. If the legislature intended a construction that differs from that set forth in this opinion, it is of course free to amend the statute. - 14 - held responsible to the state. Dissent at ¶ 37. Although this

is a plausible interpretation, we simply disagree that it is the

intended one.

¶26 Section 42-5002(A) requires the “person who imposes an

added charge to cover the tax” to remit the money collected to

ADOR. That person is likely to be the taxpayer. But § 42-5028,

the section at issue, imposes liability on “a person who fails

to remit any additional charge made to cover the tax.” While

such a person may be the taxpayer, it need not always be. It

could an accountant, corporate officer, or other person charged

with remitting the added charge to the taxing authority. See

DiGiuseppe, supra ¶ 8, at 10 (defining responsible parties

generally to be those who exercise a degree of control and

influence over the finances and disbursements of a corporation).

¶27 As our dissenting colleagues acknowledge, the

majority’s interpretation has the “practical virtue of

encouraging corporate officers and directors to be vigilant in

assuring that additional charges are remitted [to ADOR] and not

spent to discharge other corporate debt.” Dissent at ¶ 40; see

also Kirsner et al., supra ¶ 8, at 7 (noting that to protect

officers and directors from such personal liability for

unremitted charges, they should “have the debtor pay the

taxes”); cf. Kelly v. Lethert, 362 F.2d 629, 635 (8th Cir. 1966)

(concluding that the amount collected may be recovered only - 15 - once, either from the taxpayer as tax or from the responsible

person as a penalty). We conclude that this is what the

legislature intended.

B. Remand

¶28 We conclude that “person” under § 42-5028 may include

corporate officers or directors who fail to remit an “additional

charge.” In this case, the tax court held the Randalls

personally liable for Action Marine’s unpaid TPTs, penalties,

interest, and costs, purportedly under the authority of A.R.S.

§ 42-5028. Because § 42-5028 does not provide for interest,

costs, or penalties (other than the additional charge itself),

it appears that the court erred by conflating the taxpayer’s

liability for TPT (and accompanying penalties and interest that

may be assessed against the taxpayer) and the non-derivative

personal liability for the “additional charge” imposable on

“persons” under § 42-5028.7 Because the record does not show

whether Action Marine separately charged its customers an

additional charge, we remand to determine whether it did, and if

so, which of the Randalls, if any, may be liable under § 42-

5028.

7 ADOR’s inclusion of Action Marine in its original complaint and its claim for penalties and interest indicates its intent to impose derivative liability on the Randalls. Indeed, the complaint sought the exact sum from the Randalls that it sought from Action Marine. The parties also referred to the Randalls’ liability as derivative during arguments before the tax court. - 16 - ¶29 For the remand, we note that a “person” liable under §

42-5028 must have a duty to remit the taxes. E.g., Inselman,

334 B.R. at 271 (expressing concern about imposing liability for

taxes too broadly). Other jurisdictions require the officer,

director, or responsible person to have had control over,

responsibility for, or supervision of the money collected to pay

the tax. E.g., Cal. Rev. & Tax. Code § 6829(a); 35 Ill. Comp.

Stat. 735/3-7(a); Minn. Stat. § 297A.61(2)(c); Mo. Rev. Stat. §

144.157(3); Ohio Rev. Code Ann. § 5739.33; see also N.J. Stat.

Ann. § 54:32B-2(w) (2007) (including any officer who is under a

duty to act); Purcell v. United States, 1 F.3d 932, 937 (9th

Cir. 1993) (finding that a person responsible under 26 U.S.C. §

6672 for collecting and remitting income tax withholding was one

who “‘had the final word as to what bills should or should not

be paid’ if such individual had the authority required to

exercise significant control over the corporation’s financial

affairs, regardless of whether he exercised such control in

fact”). Such tests assist in determining whether the person was

responsible for remitting or had assumed a duty to remit monies

collected to pay TPTs.

III. ATTORNEYS’ FEES

¶30 The Randalls requested their attorneys’ fees pursuant

to A.R.S. § 12-348. Because they have not prevailed, we deny

the request. - 17 - IV. CONCLUSION

¶31 For the foregoing reasons, we vacate the opinion of

the court of appeals and the judgment of the tax court. We

remand this case for further proceedings consistent with this

opinion.

_______________________________________ Rebecca White Berch, Vice Chief Justice

CONCURRING:

_______________________________________ Ruth V. McGregor, Chief Justice

_______________________________________ Michael D. Ryan, Justice

H U R W I T Z, Justice, dissenting

¶32 The Court today holds that A.R.S. § 42-5028 imposes

personal liability on officers and directors of a corporation

that fails to remit additional charges collected from customers

to cover corporate liability for the transaction privilege tax

(“TPT”). This is a plausible reading of the statutory scheme

and has much to commend it as a matter of public policy.

- 18 - ¶33 This interpretation, however, is not inexorably

compelled by the text of the relevant statutes. Indeed, three

judges of the court of appeals and an experienced Arizona

bankruptcy judge have arrived at precisely the opposite

conclusion. See Ariz. Dep’t of Revenue v. Action Marine, Inc.,

215 Ariz. 584, 161 P.3d 1248 (App. 2007); In re Inselman, 334

B.R. 267 (Bankr. D. Ariz. 2005). The problem, as is so often

the case, arises from a statutory scheme whose language is less

than pellucid and whose history is at best unilluminating.

Recognizing that this is a close case, I believe that the court

of appeals has the better reading of the statute.

¶34 The majority correctly describes the basic legislative

scheme, and I need not belabor its details here. There is no

question that the taxpayer, not its customers, is responsible

for paying the TPT under A.R.S. § 42-5014. Under § 42-5024, the

tax “and all increases, interest and penalties thereon” become a

“personal debt of the taxpayer” and may be collected by

appropriate legal action under § 42-1114. By enacting § 42-

5024, the legislature seemed to recognize that a taxpayer’s

failure to perform his statutory duty of remitting the TPT under

§ 42-5014 did not itself create an actionable liability to the

state. Otherwise, § 42-5024 would be surplusage.

¶35 In the real world, of course, taxes imposed on

businesses are passed on to their customers. Recognizing as - 19 - much, the legislature provided in § 42-5002(A)(1) that “[a]

person who imposes an added charge to cover the tax levied by

this article or which is identified as being imposed to cover

transaction privilege tax shall not remit less than the amount

so collected to [ADOR].” Section 42-5002(A)(1), to be sure,

refers to a “person who imposes an added charge,” not simply to

a taxpayer. But when the relevant transaction is one between a

business and its customer, it can only be the business that

imposes the charge, so the word “person” in § 42-5002(A)(1) can

refer only to the putative taxpayer – whether a corporation,

individual, or other entity.8

¶36 Section 42-5028, the centerpiece of controversy in

this case, provides that

A person who fails to remit any additional charge made to cover the tax or truthfully account for and pay over any such amount is, in addition to other penalties provided by law, personally liable for the

8 Before 1992, the statute now codified at § 42-5002(A)(1) read: “In no event shall the person upon whom the tax is imposed, when an added charge is made to cover the [TPT] . . . remit less than the amount so collected to [ADOR].” A.R.S. § 42-1302(A)(1) (1991) (emphasis added). The 1992 amendment required any “person who imposes an added charge” to remit the amounts collected. 1992 Ariz. Sess. Laws, ch. 173, § 1 (2d Reg. Sess.) The current version of the statute thus has the salutary effect of requiring remission of the added charge even if it later turns out there was no TPT liability. The putative taxpayer unsure of liability for the tax thus protects itself against a penalty by remitting the added charge and can then seek refund of the amounts remitted to ADOR. See Ariz. Dep’t of Revenue v. Canyoneers, Inc., 200 Ariz. 139, 23 P.3d 684 (App. 2001). - 20 - total amount of the additional charge so made and not accounted for or paid over. The majority concludes that the use of the word “person” in this

statute means that personal liability is imposed on any

corporate officer or director who, as a matter of fact, fails to

engage in remission, payment over, or truthful accounting of the

additional charge. But the Court fails to identify whence the

obligation of such a “person” to pay the additional charge to

ADOR arises. Indeed, the only statute dealing with the

obligation to remit the additional charge is § 42-5002(A)(1).

And, as I have noted above, § 42-5002(A)(1) cannot be reasonably

read as imposing the duty to remit additional charges on anyone

other than the person or entity that imposes the charges.

¶37 Section 42-5028 also states that the relevant personal

liability is “in addition to other penalties provided by law.”

(Emphasis added.) The use of the term “other penalties”

strongly suggests that § 42-5028 is a penalty provision,

authorizing personal liability on someone who imposes an added

charge but fails to turn it all over. This penalty is entirely

separate from the tax liability for the TPT imposed by §§ 42-

5014 and -5024. Thus, § 42-5028 is not simply surplusage if

read as limited to imposing an additional penalty on the

taxpayer to the extent he has collected additional charges but

not paid them over. Indeed, if § 42-5024 was needed to impose

- 21 - personal liability on a taxpayer who failed to perform his duty

under § 42-5014 to remit the TPT, it logically follows that a

statute other than § 42-5002(A)(1) also was needed to impose

personal liability on a taxpayer who failed to perform his

statutory duty to remit added charges. That statute is § 42-

5028. The Court rejects this reading of § 42-5028 because the

term “person” is broadly defined in Title 42 to include all

manner of individuals and entities, see A.R.S. § 42-5001(8),

while “taxpayer” is limited to a person “who is liable for any

tax,” see id. § 42-5001(18). But the critical point is that

only a “person” who “imposes” the additional charge is required

to remit it under § 42-5002(A)(1). Thus, the only “person” who

can fail to remit (or pay over, or truthfully account for) the

additional charge is one who collected it. In this case, that

person can only be Action Marine.9

¶38 Indeed, if we read § 42-5002(A)(1) differently, we

create a statutory anomaly. As the Court notes, the statutory

duty to remit TPT falls solely on the corporate taxpayer, not

its officers and directors. Op. ¶ 21. It is difficult to

understand how, simply by use of the generic word “person,”

9 It is of course possible for a “person” to impose the additional charge, yet not be a taxpayer – i.e., one liable for the tax. See Canyoneers, 200 Ariz. 139, 23 P.3d 684. Section 42-5028 thus would impose a penalty on such a person, even if not a taxpayer.

- 22 - § 42-5002(A)(1) creates a general duty on the part of such

officers and directors to remit additional charges imposed to

cover the TPT.10

¶39 Nor do I find A.R.S. § 43-435 helpful to ADOR. That

statute imposes liability only on those “required to collect,

truthfully account for and pay over” withholding tax.11 Thus, if

10 As the majority notes, other states impose personal liability on corporate officers for the corporation’s unpaid taxes. Op. ¶ 18 n.3. As the majority also notes, however, these states do so on the basis of statutes which, unlike A.R.S. § 42-5028, expressly provide for such personal liability. Op. ¶ 18 n.4. Any “national trend” is therefore of little utility in interpreting the relevant Arizona statutes. 11 Employers who withhold income tax from their employees must hold the funds in trust for the state. A.R.S. § 43-415. The employee is the taxpayer, and the employer collects the tax on behalf of the state. See A.R.S. §§ 43-401, 43-431. Section 43- 435 thus deals with the liability of those who improperly handle trust funds.

As the majority notes, the TPT is not a trust fund tax because the customer bears no tax liability but is instead an excise tax on the entity engaged in business activity. Op. ¶¶ 6-7. See Joseph DiGiuseppe, What Every Tax Practitioner Needs to Know About Trust Fund Taxes & Responsible Person Liability in Bankruptcy, 17 Prac. Tax Law. 7, 14-15 (2002) (noting that the critical distinction between a trust fund tax and an excise tax turns on whether the ultimate tax liability belongs to the collecting entity or the person from whom the funds have been taken). Our previous decisions have attempted to maintain this distinction. See, e.g., Ariz. State Tax Comm’n v. Garrett Corp., 79 Ariz. 389, 392-93, 291 P.2d 208, 210 (1955). Today’s opinion unnecessarily blurs this previously bright line by characterizing § 42-5028 as involving a trust- like tax. Op. ¶ 8.

Another article cited by the majority operates from the mistaken assumption that the TPT is a trust fund tax. Marvin A. Kirsner, Richard S. Miller, & David Neier, Officers’ & - 23 - we were to read § 43-435 in pari materia with § 42-5028, we

would impose personal liability only on those otherwise required

by law to remit, account for or pay over – the “person” who

“imposed” the added charge, in this case, Action Marine.12

¶40 The Court’s reading of § 42-5028 has the practical

virtue of encouraging corporate officers and directors to be

vigilant in assuring that additional charges are remitted and

not spent to discharge other corporate debt. Indeed, it is

difficult to excuse the Randalls’ failure to safeguard funds

which were taken from Action Marine’s customers on the

representation (either express or implied) that they were needed

to pay the TPT. But before we in effect pierce the corporate

veil and impose substantial liability on these individuals in

the name of good public policy, I would require that the

legislature more clearly enunciate its direction that we do so.

Directors’ Nightmare: Being Held Personally Liable for Debtor Company’s Unpaid Taxes, N.Y.L.J., Aug. 27, 2001, at 7, 7 & n.7. The article’s conclusion that directors of the taxpayer are personally liable for unpaid TPT is therefore flawed. 12 It is conceivable that the Randalls had a duty to Action Marine to remit the additional charges. But I am loath to read a tax penalty statute as enforcing a duty owed to a private corporation, as opposed to the state. If the legislature meant to reach such a sweeping result, it could have said so expressly. Cf. 26 U.S.C. § 6671(b) (defining “person” to include corporate officers and employees “under a duty” to perform a relevant act); 26 U.S.C. § 6672(a) (imposing personal liability on persons “required to collect, truthfully account for, and pay over” federal withholding tax).

- 24 - The current statutory scheme does not so specify. I would

affirm the opinion below, and therefore respectfully dissent.13

__________________________________ Andrew D. Hurwitz, Justice

_______________________________________ W. Scott Bales, Justice

13 I agree with the Court’s conclusion that the “additional charge” referred to in A.R.S. § 42-5028 is the entire amount charged to the customer to cover putative TPT liability. Op. ¶ 24. - 25 -