REL: February 24, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2022-2023 _________________________
CL-2022-0962 _________________________
Opal Management, Inc.
v.
Alabama Department of Revenue
Appeal from Montgomery Circuit Court (CV-21-901011)
MOORE, Judge.
Opal Management, Inc. ("the taxpayer"), appeals from a final
judgment entered by the Montgomery Circuit Court ("the trial court")
granting a summary judgment in favor of the Alabama Department of
Revenue ("the Department"). We reverse the judgment and remand the
case with instructions. CL-2022-0962
Background and Procedural History
The taxpayer owns and operates a convenience store in
Montgomery and is in the business of selling at retail tangible personal
property. Pursuant to Ala. Code 1975, § 40-23-2(1), the gross sales from
the sale of tangible personal property at retail are subject to a privilege
or license tax, known as the sales tax. The taxpayer is required to add
the sales tax to each item of tangible personal property that it sells,
except those items that are not subject to the sales tax, and then collect
the sales tax from the purchaser. Ala. Code 1975, § 40-23-26(a). The
taxpayer is required then to report and remit to the state the sales taxes
it collects. Ala. Code 1975, § 40-23-7.
The taxpayer has collected, reported, and remitted sales taxes to
the state over the years of operating the convenience store. In 2018, the
Department audited the taxpayer for the period July 1, 2012, to
December 31, 2017. Based on the audit, the Department determined that
the taxpayer had failed to keep complete and accurate records and
information needed to allow the Department to determine the sales taxes
that the taxpayer owed for that period, in violation of Ala. Code 1975, §
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40-2A-7(a)(1) (providing, in pertinent part, that "taxpayers shall keep
and maintain an accurate and complete set of records, books, and other
information sufficient to allow the [taxing authority] to determine the
correct amount of value or correct amount of any tax"). In accordance
with Ala. Code 1975, § 40-2A-7(b)(1)a., the Department invoked its right
to estimate the sales-tax liability of the taxpayer based on "the most
accurate and complete information reasonably obtainable." Upon review
of the information it deemed most reliable, the Department determined
that the taxpayer had consistently, intentionally, and fraudulently
underreported and underpaid its sales taxes. On April 3, 2019, the
Department entered a final assessment against the taxpayer asserting
that it owed $257,497.57, which included interest and a 50% penalty for
fraud. See § 40-2A-11(d), Ala. Code 1975 (imposing 50% penalty "[i]f any
part of any underpayment of tax required to be shown on a return is due
to fraud").
The taxpayer properly and timely appealed the final assessment to
the Alabama Tax Tribunal ("the Tax Tribunal"). See Ala. Code 1975, §
40-2A-7(b)(5). On August 18, 2021, the Tax Tribunal issued a
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preliminary order in which it made certain findings of fact and
conclusions of law, generally upholding the final assessment but ordering
the Department to recalculate the sales-tax liability to correct a
mathematical error. On August 21, 2021, the Tax Tribunal issued a final
order that incorporated the preliminary order and accounted for the
mathematical error; ultimately, the Tax Tribunal modified the amount
owed under the final assessment to $257,188.10. In the final order, the
Tax Tribunal resolved the two main disputes between the parties. First,
the Tax Tribunal determined that the taxpayer had failed to maintain
accurate and complete records from which the Department could
ascertain its sales-tax liability and that the Department had properly
estimated the sales-tax liability. Second, the Tax Tribunal determined
that the Department had proven that the taxpayer had committed fraud
in underreporting and underpaying its sales-tax liability, supporting the
decision of the Department to impose the penalty for fraud. The Tax
Tribunal also determined that the Department had correctly applied Ala.
Code 1975, § 40-2A-7(b)(1)b., discussed infra.
4 CL-2022-0962
On September 19, 2021, the taxpayer properly and timely appealed
the Tax Tribunal's final order to the trial court. See Ala. Code 1975, §
40-2B-2(m). On October 21, 2021, the Department filed a motion for a
summary judgment. On December 13, 2021, the taxpayer filed a written
response to the summary-judgment motion. On December 29, 2021, the
trial court conducted a hearing on the motion for a summary judgment.
During the hearing, the trial court requested briefs from the parties
regarding the standard of review to be applied to the final order of the
Tax Tribunal, which both parties submitted by January 13, 2022. On
July 26, 2022, the trial court entered a summary judgment upholding the
final order of the Tax Tribunal. The taxpayer properly and timely
appealed to this court on September 2, 2022. See Ala. Code 1975, § 12-3-
10; Alabama Dep't of Revenue v. Scholastic Book Clubs, Inc., 276 So. 3d
698, 705 (Ala. Civ. App. 2018); and Rule 4(a)(1), Ala. R. App. P.
Issues
The dispositive issue in this case is whether the trial court erred in
entering a summary judgment in favor of the Department and against
the taxpayer.
5 CL-2022-0962
Standard of Review
An appellate court reviews a summary judgment de novo. S.J.S. v.
B.R., 949 So. 2d 941, 944 (Ala. Civ. App. 2006). A summary judgment
may be entered only "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." Rule
56(c)(3), Ala. R. Civ. P. The burden is on the party moving for a summary
judgment to make a prima facie showing that it is entitled to a summary
judgment by presenting evidence that, if uncontroverted at trial, would
entitle the moving party to a judgment as a matter of law. See Ex parte
General Motors Corp., 769 So. 2d 903, 909 (Ala. 1999). If the movant
makes a prima facie showing, the burden shifts to the nonmoving party
to rebut that showing by presenting substantial evidence creating a
genuine issue of material fact or proving that the movant is not entitled
to a judgment as a matter of law. Bass v. SouthTrust Bank of Baldwin
Cnty., 538 So. 2d 794, 797-98 (Ala. 1989).
6 CL-2022-0962
Facts
The Department filed a narrative summary of undisputed facts that
relied exclusively on the contents of the preliminary and final orders
entered by the Tax Tribunal, which were attached as exhibits in support
of its motion for a summary judgment. See Rule 56(c)(1), Ala. R. Civ. P.
In those orders, the Tax Tribunal found that, when the Department had
notified the taxpayer of its intent to perform a sales-tax audit, the
Department had requested that the taxpayer provide sales records, cash-
register tapes, purchase invoices, bank statements, and other records so
that it could determine the proper amount of the sales-tax liability.
During the audit, however, the Department discovered that the taxpayer
had not retained the "z tapes," which had recorded each sales transaction
that had been processed through its store's cash register.
Instead, Mohamed Hoque, the manager for the convenience store
owned and operated by the taxpayer, informed the Department that he
had used "z summaries" generated by the cash register to compute the
sales-tax liability. Those summaries aggregated the individual sales for
the month. According to Hoque, each month he would use the "z
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summaries" to ascertain the amount of the total sales transacted through
the cash register, subtract the nontaxable sales from that amount, and,
after accounting for theft and spoilage, determine the gross monthly
taxable sales and the sales-tax liability on that amount. Hoque would
make all of those calculations on a monthly worksheet and would then
forward the monthly worksheet to the taxpayer's accountant, who, he
said, would then file the taxpayer's monthly sales-tax return, reporting
and remitting the amount of the sales tax as determined by Hoque. The
taxpayer provided the Department with the monthly worksheets and
monthly sales-tax returns, which corresponded exactly, but not the "z
summaries" or other raw data Hoque had used in his monthly
calculations, all of which, Hoque said, had been discarded because of a
lack of storage space.
The Department determined, and the Tax Tribunal agreed, that the
taxpayer had not maintained proper records of its sales. To ascertain the
sales-tax liability, the auditor decided to perform a "mark-up audit." In
a markup audit, the Department determines the wholesale costs to the
taxpayer of the goods sold and applies a markup percentage to estimate
8 CL-2022-0962
the retail-sales amount of the goods sold. In this case, the auditor
obtained information from the top eight wholesale vendors who supplied
the taxpayer to estimate the total costs of the store's inventory during
the audit period, which originally had been January 1, 2015, through
December 31, 2017. After the summary-judgment hearing, the taxpayer
submitted an affidavit from a third party and from Hoque designed to
prove that the Department had used unreliable information from the
wholesale vendors to ascertain the amount and value of the wholesale
goods purchased by the taxpayer, and the Department submitted an
affidavit from the same third party "to set the record straight"; the Tax
Tribunal excluded those affidavits from consideration. Based on his
review of the information obtained from the wholesale vendors, the
auditor determined that the taxpayer had purchased inventory during
the relevant audit period at a cost of $5.8 million.
After determining the wholesale cost of inventory, and accounting
for theft, waste, and "tobacco buy downs," the auditor applied a 35%
markup to the costs of the goods sold to conclude that the amount of the
gross retail sales during the relevant audit period was approximately
9 CL-2022-0962
$7.8 million. After subtracting nontaxable sales, the auditor calculated
the dollar amount of the taxable sales for the initial audit period,
concluding that the total far exceeded the $3.5 million that had been
reported by the taxpayer.
Because the auditor believed that, for the initial audit period, the
taxpayer had underreported its taxable sales by more than 25%, the audit
period was extended back to July 2, 2012. See § 40-2A-7(b)(2)b. ("A
preliminary assessment may be entered within six years from the due
date of the return or six years from the date the return is filed with the
department, whichever is later, if the taxpayer omits from the taxable
base an amount properly includable therein which is in excess of 25
percent of the amount of the taxable base stated in the return.").
Applying the same markup-audit methodology for the extended period,
the Department determined, and the Tax Tribunal found, that, for each
of the 66 months of the total audit period, the taxpayer's inventory
purchases exceeded its reported sales, and that the taxpayer had no
plausible explanation for the discrepancy. Ultimately, the auditor
calculated the total sales taxes due, credited the taxpayer for the sales
10 CL-2022-0962
taxes paid during the audit period, and assessed a deficiency of
$155,721.24, without interest.
The Department determined that the taxpayer had fraudulently
underreported and underpaid the sales taxes that it had collected during
the audit period, so it assessed an additional 50% penalty for fraud on
the amount of the total sales tax-liability. The Tax Tribunal upheld that
determination, finding that the taxpayer had not maintained proper
records, that it had vastly underreported its taxable sales, that it had
done so every month during the 66-month audit period, and that the
taxpayer had not provided any plausible explanation for its
recordkeeping and reporting practices. The Tax Tribunal essentially
concluded that the taxpayer had engaged in this scheme for the purpose
of evading the payment of the appropriate amount of sales tax.
Rule 56(c)(1), Ala. R. Civ. P., provides, in pertinent part: "If the
opposing party contends that material facts are in dispute, that party
shall file and serve a statement in opposition supported in the same
manner as is provided herein for a summary of undisputed material
facts." The taxpayer did not file and serve a statement of facts opposing
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the statement filed by the Department. However, throughout its brief in
response to the motion for a summary judgment, the taxpayer set forth
additional facts, which it supported with affidavits and exhibits,
substantially complying with Rule 56(c)(1). See Kennedy v. Wells Fargo
Home Mortg., 853 So. 2d 1009, 1011-12 (Ala. Civ. App. 2003). The
taxpayer also relied on excerpts from the certified record of the testimony
presented at the hearing before the Tax Tribunal, which had been
submitted to the trial court pursuant to § 40-2B-2(m)(4) ("The
administrative record and transcript shall be transmitted to the
reviewing court as provided herein and shall be admitted into evidence
in the trial de novo, subject to the rights of either party to object to any
testimony or evidence in the administrative record or transcript.").
The Department's auditor testified at the hearing before the Tax
Tribunal that the Department follows the guidelines of the federal
Internal Revenue Service ("IRS") when performing a markup audit. The
IRS annually calculates a standard markup percentage for various retail
businesses based on nationwide data. The Department regularly uses a
standard IRS markup percentage of 35% when conducting its markup
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audits. The auditor admitted that the Department had not promulgated
any rule, regulation, or guideline adopting the standard IRS 35% markup
percentage. The auditor further testified that he had used the standard
IRS 35% markup percentage because his supervisor had instructed him
to do so. The auditor stated that he did not perform any independent
calculation, investigation, or analysis to ascertain whether the 35%
markup percentage should be applied in the taxpayer's audit.
In one of the affidavits submitted by the taxpayer, J. Alan Taunton,
a certified public accountant, stated that he was familiar with the
Department's practice of using a "standard mark up of [35%] in its sales
tax audits of retail businesses." Taunton opined that the Department's
practice "is not the best methodology to calculate the correct tax or value
for sales tax purposes for convenience stores." Taunton stated that "the
most accurate and complete information reasonably obtainable for
purposes of a markup can be derived from what is commonly called a
shelf audit or classified markup." Taunton explained that,
"[i]n performing a shelf audit, the auditor actually goes to the convenience store and performs an actual physical examination of various items/products being sold at the store.
13 CL-2022-0962
Selections for examination are made after first stratifying the population of the items sold. This [e]nsures that the selections accurately represent the entire population."
According to Taunton, "[t]he auditor [then] physically views the sales
price that is being charged for various items in the selected sample" and
"then examines current pertinent invoices to determine the wholesale
purchase in proportion to the sales of the product using weighted
averages for major categories of products being sold [which] is designed
to determine the average cost percentage for each stratified group."
The auditor testified that he had not performed a shelf audit and,
in fact, that he had never visited the convenience store owned and
operated by the taxpayer. The auditor conceded that a shelf audit could
have produced a different markup percentage, as low as even 4%, far less
than the standard IRS 35% markup percentage that he had been ordered
to apply by his supervisor. Hoque testified in the hearing before the Tax
Tribunal that he had personally determined that the taxpayer had
marked up its inventory only by an average of 12%, and he explained how
he determined that figure by reviewing the retail prices of various goods
sold in the store. The taxpayer pointed out in its response to the motion
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for a summary judgment that applicable IRS guideline IRM 4.10.4.6.5.2
(May 27, 2011), concerning the use of the standard IRS 35% markup
percentage, requires an auditor to accept the oral testimony of the
taxpayer regarding any plausible explanation for why a taxpayer's
markup percentage deviates from the 35% standard. According to the
taxpayer, the Department failed to follow the IRS guidelines by ignoring
Hoque's explanation. However, the Department pointed out that, in the
preliminary order, the Tax Tribunal had determined that Hoque's
explanation of how he had determined his 12% markup figure was
incoherent.
Finally, the taxpayer attached the affidavit of Christopher J.
Capell, a beer-sales representative, who stated that beer distributors
control the markup percentage for sales of their products and that he had
personally observed that the taxpayer had complied with the distributors'
guidelines by marking up most of its beer products between 15% and
19%, except for single cans or bottles, which, he said, were sold at a 20%
markup.
15 CL-2022-0962
In the last part of its response, the taxpayer challenged the fraud
finding made by the Tax Tribunal. The taxpayer acknowledged that it
had not maintained the "z tapes" and that its recordkeeping practices
were not ideal, but it noted that the Department had not promulgated
any regulation requiring that the taxpayer retain the "z tapes." The
taxpayer also noted that the Tax Tribunal had based its finding of fraud,
in part, on the conclusion of the markup audit that the taxpayer had
transacted sales far exceeding its reported sales, which, the taxpayer
said, had been derived from the use of unauthenticated vendor
documents and the IRS standard 35% markup. The taxpayer argued that
the finding of fraud could not be inferred from the difference in the
estimated sales-tax liability based on what it described as the improper
markup audit and the sales taxes that it had actually paid.
Law & Analysis
Section 40-2B-2(m)(4), Ala. Code 1975, provides, in pertinent part:
"The appeal to circuit court from a final or other appealable order issued
by the Alabama Tax Tribunal shall be a trial de novo, except that the
order shall be presumed prima facie correct and the burden shall be on
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the appealing party to prove otherwise." That Code section establishes a
rebuttable presumption that the final order entered by the Tax Tribunal
is correct. See Rule 301, Ala. R. Evid. To rebut that presumption, the
burden rests on the appealing party "to prove otherwise." In the context
of an appeal of a final order of the Tax Tribunal upholding a final
assessment, the appealing party must prove that the final assessment is
incorrect, contrary to the determination of the Tax Tribunal.
In this case, the Department moved for a summary judgment on the
ground that the taxpayer could not present any admissible evidence to
prove that the Tax Tribunal had incorrectly upheld the final assessment.
The Department attached to its motion the preliminary and final orders
of the Tax Tribunal and argued that the Tax Tribunal had correctly
determined the facts and the law and had properly applied the law to the
facts. Because the final order is "presumed prima facie correct," the
Department discharged its burden of presenting evidence that, if
uncontroverted, would have entitled it to a judgment affirming the order.
See Ex parte General Motors Corp., supra.
17 CL-2022-0962
The taxpayer countered the Department's evidence with evidence
contradicting the determination of the Tax Tribunal that the Department
had correctly estimated the taxable sales transacted by the taxpayer
during the audit period. For purposes of the motion for a summary
judgment, the parties agree that the taxpayer did not preserve records
and information sufficient for the Department to ascertain the taxpayer's
sales-tax liability. The parties also do not dispute that, when a taxpayer
does not maintain adequate records to determine the sales tax owed, Ala.
Code 1975, § 40-2A-7(b)(1)a. applies. Section 40-2A-7(b)(1)a. provides, in
pertinent part:
"If the department determines that the amount of any tax as reported on a return is incorrect, or if no return is filed, or if the department is required to determine value, the department may calculate the correct tax or value based on the most accurate and complete information reasonably obtainable by the department."
(Emphasis added.). In 84 Lumber Co. v. City of Northport, 250 So. 3d
567, 573 (Ala. Civ. App. 2017), this court determined from the plain
language of the statute that "[s]ection 40-2A-7(b)(1)a. requires a taxing
authority that disputes the accuracy of a tax reported on a return to use
18 CL-2022-0962
the most accurate and complete information that it can procure without
extraordinary effort in order to calculate the correct tax."
In the proceedings before the Tax Tribunal, the central issue was
whether the Department had complied with § 40-2A-7(b)(1)a. by using
the markup-audit methodology to estimate the sales tax owed by the
taxpayer during the audit period. The Tax Tribunal determined that the
Department had properly estimated the sales-tax liability using that
methodology, which was explained at length during the testimony of the
auditor. The Department asserts that, because the Tax Tribunal is an
administrative agency that is subject to the Alabama Administrative
Procedure Act ("the AAPA"), Ala. Code 1975, § 41-22-1, et seq., see Ala.
Code 1975, § 40-2B-2(a), (b), and (q), the trial court was required to defer
to those findings in accordance with the standard of review set forth in
Ala. Code 1975, § 41-22-20(k), a part of the AAPA. Section 41-22-20(k)
generally provides that, on judicial review of the final decision of an
administrative agency, the reviewing court "shall not substitute its
judgment for that of the agency as to the weight of the evidence on
questions of fact" and that the decision shall be upheld unless it is
19 CL-2022-0962
determined to be "[c]learly erroneous" or "[u]nreasonable, arbitrary, or
capricious ." See § 41-22-20(k)(6) & (7). During the oral argument on the
motion for a summary judgment, the trial court alluded to that standard
of review when questioning the parties regarding the effect of the factual
findings of the Tax Tribunal on appeal.
However, § 41-22-20(k) expressly provides that the general
standard of review of the decisions of an administrative agency governs
"[e]xcept where judicial review is by trial de novo" As noted above, § 40-
2B-2(m)(4) provides for judicial review of a final order of the Tax Tribunal
by trial de novo. Thus, the general standard of review of the decisions of
an administrative agency does not apply in an appeal of a final order of
the Tax Tribunal.
In Alabama Department of Revenue v. Greenetrack, Inc., [Ms.
1200841, June 30, 2022] ___ So. 3d ___ (Ala. 2022), our supreme court
explained that "a trial de novo means a new trial 'as if no trial had ever
been had, and just as if it had originated in the circuit court.' " (quoting
Louisville & Nashville R.R. v. Lancaster, 121 Ala. 471, 473, 25 So. 733,
735 (1899)). Section 40-2B-2(m)(4) further provides that, in a trial de
20 CL-2022-0962
novo, "[t]he circuit court shall hear the case by its own rules and shall
decide all questions of fact and law." By its plain language, the statute
indicates that the circuit court shall independently decide the facts of the
case. Although the final order of the Tax Tribunal is entitled to a
presumption of correctness, that presumption amounts only to a
procedural device shifting the burden of proof to the taxpayer, see
generally Rule 301, Ala. R. Evid., and is not in any sense a directive to
the circuit court that it is bound by, or even required to give any
substantial deference to, the findings of fact made by the Tax Tribunal,
which would be inconsistent with the meaning of a trial de novo.
Because the trial court was reviewing the case de novo, it had to
determine for itself whether the final assessment was incorrect based on
the evidence before it. In the context of the motion for a summary
judgment, the pertinent question was whether the taxpayer had
presented substantial evidence in its submission to the trial court to
warrant a trial. See Bass, supra. In deciding that question, the trial
court was guided solely by the summary-judgment standard by which
evidence is "substantial" enough to create a genuine issue of material fact
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to defeat a motion for a summary judgment if it is of "such weight and
quality that fair-minded persons in the exercise of impartial judgment
can reasonably infer the existence of the fact sought to be proved." West
v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989). The question was not whether the factual determinations made
by the Tax Tribunal had been adequately supported by the evidence
before that agency so that they should be given preclusive effect on
appeal. Moreover, because the judicial review was by trial de novo, the
taxpayer was allowed to present new evidence not considered by the Tax
Tribunal, which it did by submitting affidavits and exhibits not contained
in the administrative record. See Greenetrack, supra. The trial de novo
review required the trial court to consider that evidence when ruling on
whether the taxpayer had sufficiently proven a genuine issue of material
fact. 1 Therefore, the factual findings of the Tax Tribunal, which were
made without consideration of that evidence, could not be binding on the
1Pursuant to § 40-2B-2(m)(4), the parties may consent to limit the judicial review to the administrative record and transcript, but the parties in this case did not agree to that limitation. 22 CL-2022-0962
trial court. To the extent that the trial court indicated otherwise, it was
in error.
On our de novo review of the motion for a summary judgment, we
conclude that the taxpayer presented substantial evidence creating a
genuine issue of fact as to whether the final assessment was correct. In
his affidavit, Taunton attested that the markup audit was not the most
accurate and complete method of determining the taxpayer's sales-tax
liability. Taunton stated that a shelf audit, or classified markup audit,
pursuant to which the auditor would have inspected the taxpayer's
convenience store to ascertain the actual retail prices of the merchandise,
would have provided the Department with the most precise markup
percentage to be applied when making its estimate. The evidence
submitted by the taxpayer indicates that the auditor was familiar with a
shelf audit, that the Department could have performed a shelf audit,
that, in its publications, the Department acknowledges that a shelf audit
is a more defensible method of ascertaining the specific markup
percentage for a specific taxpayer, and that the shelf audit could have
produced a drastically lower markup percentage. However, the auditor
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testified that he had never visited the convenience store owned and
operated by the taxpayer to conduct a shelf audit because he had been
instructed by his supervisor to apply the standard IRS 35% markup.
The IRS guidelines, which the Department ordinarily follows,
indicate that a standard markup audit would not be as accurate as a shelf
audit and that the standard 35% markup should not be used when the
taxpayer presents a plausible argument to support a deviation. Capell
stated in his affidavit that the taxpayer had marked up its beer products,
which constituted a large percentage of its sales, only between 15% and
20%. Hoque testified that, overall, the taxpayer marked up their prices
an average of only approximately 12%. The Tax Tribunal found that
Hoque's testimony lacked credibility, but the trial court could have found
otherwise in a trial de novo based on its own assessment of the witness.
"[A] court may not determine the credibility of witnesses on a motion for
summary judgment." Phillips v. Wayne's Pest Control Co., 623 So. 2d
1099, 1102 (Ala. 1993).
We conclude that the taxpayer presented a genuine issue of
material fact regarding whether the Department relied on the most
24 CL-2022-0962
accurate and most complete information reasonably obtainable when
making its estimation of the taxpayer's taxable sales and whether the
amount of the final assessment was properly estimated. Furthermore,
as part of its basis for determining that the taxpayer had committed
fraud, the Tax Tribunal relied heavily on the large discrepancy between
the estimated taxable sales as determined by the Department using the
markup-audit methodology and the taxable sales reported by the
taxpayer on its sales tax returns. Because the taxpayer has presented a
genuine issue of material fact as to whether the Department properly
estimated the taxable sales, the taxpayer has likewise presented a
genuine issue of material fact as to whether the finding of fraud made by
the Tax Tribunal is correct.
Conclusion
Because we find that the taxpayer presented substantial evidence
establishing a genuine issue of material fact, we pretermit discussion of
any other arguments for reversal of the summary judgment made by the
taxpayer in its brief. We reverse the judgment of the trial court and
remand the cause with instructions that the trial court vacate the
25 CL-2022-0962
summary judgment and that it take such other actions that are
consistent with this opinion to conclude this matter in accordance with
the procedure set forth in § 40-2B-2(m)(4).
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Hanson and Fridy, JJ., concur.
Edwards, J., concurs in the result, without opinion.