Morris v. Arkansas Department of Finance & Administration

112 S.W.3d 378, 82 Ark. App. 124, 2003 Ark. App. LEXIS 393
CourtCourt of Appeals of Arkansas
DecidedMay 7, 2003
DocketCA 02-890
StatusPublished
Cited by3 cases

This text of 112 S.W.3d 378 (Morris v. Arkansas Department of Finance & Administration) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. Arkansas Department of Finance & Administration, 112 S.W.3d 378, 82 Ark. App. 124, 2003 Ark. App. LEXIS 393 (Ark. Ct. App. 2003).

Opinion

Karen R. Baker, Judge.

This appeal is from an order of the Sevier County Circuit Court finding that two logging-related businesses owned by appellant Michael Morris and three similar businesses owned by appellant Jim Morris owe appel-lee, the Arkansas Department of Finance and Administration, withholding taxes for their employees for the time period beginning in January 1989 and ending in December 1994. Appellants Michael Morris, d/b/a M & M and 3-M Transportation, Inc., and Jim Morris, d/b/a Morris Logging, Jim Morris Trucking, and Jim Morris Logging, Inc., assert error in the admission of evidence against them, the computation of the amounts owed appellee, and the dismissal of their claims for subrogation against their employees. We affirm the trial judge’s decision in all respects.

Appellants employed over 100 people in Lockesburg, Arkansas, between 1989 and 1994. Although appellants withheld federal income taxes from their employees’ wages and prepared W-2 forms, they did not withhold or remit state income taxes.- After conducting five audits, appellee assessed appellants for unpaid withholding taxes, interest, and penalties. Although appellants did not establish a reasonable cause for their failure to withhold the taxes, appellee conducted reaudits to give them credit for the income taxes that the employees had paid on those wages. According to appellee, if an employee had reported gross income in an amount at least equal to the amount of wages reported in the W-2 records, it gave appellants credit for the state income taxes that should have been withheld on those wages. Appellants challenged the reaudits and requested an administrative hearing] adopting the position that the state income taxes were the employees’ responsibility. Appellee upheld the assessments. Appellants filed this action for judicial relief from appellee’s determination under Ark. Code Ann. § 26-18-406 (Supp. 2001). In their complaint, appellants also sought subrogation from the employees, naming them as defendants.

Appellee’s auditor, Donald Gunter, testified at trial that he had reviewed appellants’ W-2 and W-4 payroll records between 1989 and 1994 and had prepared audit summaries from those records. Mr. Gunter testified that he had calculated the amounts of income taxes that should have been withheld by taking each employee’s W-2 income for each year, finding the correct amount of taxes due according to the state standard deduction tax table, and subtracting any allowable personal tax credits. He said that he did not compute withholding tax for any employee with $3,000 or less yearly income. He testified that each employee who had reported gross income in an amount at least equal to the amount of wages reported in the W-2 records was not included in the audits; therefore, appellants were given credit for the taxes that should have been withheld for those wages. Neither appellant Jim Morris nor Michael Morris testified, nor did any other officer of their companies.

In his order, the trial judge found that appellant Jim Morris was “well aware” of his obligation to withhold state income taxes from his employees’ wages but refused to do so. The judge noted that, since 1965, Arkansas employers have been required to withhold state income taxes from the wages paid to their employees and that any employer who fails to do so is personally and individually liable to the state for those taxes. Further, the judge refused to grant appellants subrogation against the employees, stating that appellants had cited no Arkansas statutory or case law to support their claim. The judge found that appellants were liable for such taxes, the statutorily permitted interest, and penalties as follows:

Michael Morris d/b/a M & M— $5,502 taxes; $1,925.70 penalty; interest at 10% from the due dates of the delinquent withholding taxes until paid;
3-M Transportation, Inc. ■— $4,690 taxes; $1,641.50 penalty; and interest at 10%;
Jim Morris d/b/a Morris Logging — $1,838 taxes; $643.30 penalty; and interest at 10%;
Jim Morris d/b/a/ Jim Morris Trucking — $6,871 taxes; $2,404.85 penalty; and interest at 10%; and
Jim Morris Logging, Inc. — $22,157 taxes; $7,754.95 penalty; and interest at 10%.

Arguments

Appellants make the following arguments: (1) the trial judge erred in admitting the audit summaries into evidence; (2) the judge erred in fading to deduct withholding for the employees who had paid their state income taxes; (3) the judge erred in denying appellants subrogation against the employees.

Admission of Evidence

Appellants assert that the judge committed reversible error by admitting appellee’s audit summaries into evidence without requiring appellee to first give notice of its intention to use such summaries and to produce at trial the documents from which they were compiled. In his order, the judge stated that, given the large number of employees, the amount of time, and the fact that five employers were involved, the audit summaries introduced by appellee were acceptable to establish appellants’ tax liability in lieu of all of the source documents. He stated: “Mr. Gunter’s testimony regarding audit procedures, techniques and calculations provided an adequate foundation for the admission of the Audit Summaries.” The judge also found that there was no evidence to suggest that appellants were denied access to any of appellee’s evidence and supporting documents prior to trial or that appellants had made proper discovery requests pursuant to the Arkansas Rules of Civil Procedure. He added: “The supporting W-2 and W-4 records were obtained from the [appellants or the appellants’] accountant and therefore should have been readily available to [appellants] throughout the pendency of this case.” The judge also found that appellants had failed to prove that the reaudits were flawed in any respect.

The admission of evidence is at the discretion of the trial judge, and we will not reverse absent an abuse of that discretion and a showing of prejudice. Dodson v. Allstate Ins. Co., 345 Ark. 430, 47 S.W.3d 866 (2001). Rule 1006 of the Arkansas Rules of Evidence controls the admissibility of summaries. It states:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

This rule gives the trial judge discretion whether to accept or reject a summary or whether to order that the source documents be produced in court. See Dodson v. Allstate Ins., supra. Rule 1006 does not require that a party notify an opposing party that he intends to introduce a summary. Ward v. Gerald E. Prince Constr., Inc., 293 Ark. 59, 732 S.W.2d 163 (1987).

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Bluebook (online)
112 S.W.3d 378, 82 Ark. App. 124, 2003 Ark. App. LEXIS 393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-arkansas-department-of-finance-administration-arkctapp-2003.