Rockower Bros. v. Comptroller of Treasury

214 A.2d 581, 240 Md. 379

• Court: Court of Appeals of Maryland
• Decided: December 7, 1965
• Docket: [No. 469, September Term, 1964.]
• Status: Published

Opinions

Hammond, J.,

delivered the majority opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 394, infra.

At issue is the liability to the State for sales taxes of a corporation, Rockower Brothers, Inc., which sold its merchandise anonymously from leased space in discount department stores owned by Towers Mart International which, to all outward appearances, was the vendor and which had collected the taxes for Rockower but had not paid them over to the State. Taxes for the period from December 1, 1962 to January 31, 1963 in the amount of $18,246.81 and for the first two days of February 1963 in the amount of $312.18 are involved.

The facts are agreed to. Beginning in 1959 Towers operated discount department stores in various locations — usually in shopping centers — in Maryland. Its method of operation was to lease space in a store to concessionaire companies, each of which anonymously sold its particular variety of merchandise — ■ for example, men’s clothing, household furnishings, children’s things, women’s dresses — from the department space allotted to it under the lease. As far as the general and shopping public were concerned, only Towers ran the store and sold the merchandise since the store buildings were marked “Towers,” newspaper and other advertising was in the name of Towers and the wrapping paper, bags and other accessories, although paid for by the concessionaires, bore the label “Towers.” A shopper would go from department to department and counter to counter, selecting merchandise which seemingly was that of Towers but actually was the property of the concessionaire (licensee) which was leasing that department or counter.¹

Each concessionaire offered its merchandise to the public through sales persons employed by it; other employees placed on display fresh merchandise they brought out from warehouse stocks maintained by it.²

When a shopper was ready to leave the store with his purchases, he went to a check-out cashier (as in a chain grocery store), who was an employee of Towersj The cashier rang the various purchases on the cash register, which had a separate key for each concessionaire. The sales tax was computed and collected on the total purchase price of the merchandise presented by each customer.³

A licensee paid Towers seven and one-half per cent of sales plus three per cent to be expended for advertising purposes. Towers was to deposit each day to the credit of the licensee in its bank account eighty-nine and'one-half per cent of that licensee’s gross sales. It was agreed that “LICENSEE shall pay all the taxes assessed by any taxing authority on the merchandise carried in said department * * * including but not limited to sales taxes of the State of Maryland * * The monies which Towers collected as sales taxes were retained by it until paid over to the State and it took the two per cent of those monies remitted as allowed by Code (Supp. 1965), Art. 81, §338, to a remitting vendor.

When Towers began operating in Maryland in 1959 it registered with the Comptroller and obtained a sales tax license as vendor for each of its locations. It filed sales tax reports and remitted sales taxes on a consolidated basis in its name without revealing either the fact that the sales were in fact those of merchandise belonging to concessionaires or the identity of the concessionaires. An auditor of the sales tax division testified that he had always realized that Towers operated on the leased departments system but that for some time he was unable, despite continual effort, to determine the identity of the lessees or to obtain registration from any.

The chief of the sales tax division said he was not originally aware that Towers operated through leased departments or that it was filing a consolidated return. When the matter came to his attention, an effort was made to have the concessionaires register. When asked if his office had agreed that Towers could continue to file and pay as it had, he testified: “Let me say it this way: * * * [Towers] assumed the authority to file and began filing that way. When the account was called to my attention, I did nothing to prevent them from so filing. I have no agreement with them or no formal understanding.”

In December 1960 Towers failed to timely pay over the taxes it had collected. The Comptroller’s office attempted to obtain a bond from Towers but then accepted its assurance that it would pay promptly thereafter. Rockower, operating through wholly owned corporate subsidiaries, began leasing the men’s wear departments in Towers stores in Maryland in February 1961 and by the time of the assessments here involved was leasing in eight Towers stores. Rockower Bros.-Md. Corp. ran the men’s wear departments at Dundalk, Brooklyn Park, Langley Park, Wheaton, and Liberty Road; Rockower-71 Corp. at Timouium; Rockower-78 Corp. at Suitland, and Rockower-Carrollton at Carrollton.

When Rockower first entered the Towers stores in early 1961, Towers sent it a sales tax registration form, requesting that it be completed and returned to Towers. Towers informed Rockower that it would take care of any necessary dealings with the Comptroller, including any registration required of Rockower, as well as that the Comptroller was accepting regularly a single master sales tax return. Rockower did not check the veracity or accuracy of this information. Later, however, Rockower did register for several locations because Towers requested it do so; it did not so register (prior to the assessments here involved) unless Towers asked it to. Rockower-Carrollton filed a registration application for its operation dated March 28, 1962. A note at the bottom (not on it when it was filed) stated: “Towers will remit sales tax * * *. B. C. L. [the initials of an auditor in the sales tax division].” Similar applications were sent in by Rockower-71 Corp. and Rockower-78 Corp. in mid 1962. Sales tax report forms were filed by the 78 Corp. for September through December 1962 and for the 71 Corp. for November 1962 through February 1963. No sales were reported and no taxes remitted by either corporation; the reports bore only the notation “all taxes collected and remitted by Towers.”

As it had from time to time previously (the earlier delays were explained as caused by problems of rapid growth), Towers was late in December in paying Rockower the eighty-nine and one-half per cent of gross sales which it owed it and toward the end of January 1963 Rockower got Towers to agree to adhere to' the provisions of the agreement between them for daily payments.

Unknown to Rockower, Towers did not pay over to> the Comptroller the sales taxes it had collected in December 1962. Rockower, in the words of the agreed statement of facts, “* * * made no attempt to see that these sales taxes were remitted to the State because Rockower believed that Towers had paid the sales taxes since they were trust funds in the hands of Towers.”

Rockower learned definitely that Towers was in financial difficulty early in February 1963, after the periods covered by the assessments here involved but before these assessments had been made. Rockower obtained a court order in New York on February 28, 1963 which directed Towers and a creditors’ committee for Towers to turn over to Rockower all “receipts” from sales of its merchandise (defined as including sales taxes) theretofore received and to deposit all Rockower “receipts” thereafter received in a Rockower bank account on a daily basis. From March 1, 1963 on, Rockower filed with and paid sales taxes to the Comptroller, as a vendor in each of its Maryland operations. Rockower recovered some $300,000 owed it by Towers for the period from December 1, 1962 to February 2, 1963 but could not obtain an additional $218,495.25 which Towers owed it for that period.

When the Comptroller discovered that Towers had not filed a report for December 1962, he demanded immediate payment of the taxes due, and ascertained the amount of sales for December 1962 and January 1963 and a list of the concessionaires at each Towers store. On February 28, 1963 the Comptroller made an assessment against “Rockower Bros. (Towers)” for sales taxes of $18,246.81 plus penalty of $5,645.44 and interest of $167.63, or a total of $24,059.88. Attached to the assessment was a worksheet which showed the sales taxes claimed to be-due for each of the eight Towers stores at which Rockower leased men’s wear departments. There followed a supplementary assessment directed to “Rockower Brothers,” dated April 2, 1963 for the days of February first and second, 1963, in the-amount of $312.18, plus penalty of $31.23 and interest of $1.56,. or a total of $344.97. Rockower made timely protests to both assessments, raising substantive and procedural grounds of defense, including the claims that there was no such taxpayer and' that subsidiaries of Rockower not named in the assessments operated leased departments in Maryland.

On April 15, 1963 the Comptroller filed a lien in the Circuit Court for Baltimore County against “Rockower Bros. Md. Corporation,” the corporation which operated in the Towers stores at Dundalk, Brooklyn Park, Langley Park, Wheaton, and Liberty Road, in the amount of $24,404.85. On the same day the Comptroller filed in the same court a lien against Rockower Bros.-71 Corporation, which operated at Timonium, for the-same amount. Writs of fi fa were issued under each of the liens and execution was made on goods of Rockower-7l Corp. at the store of Towers in Timonium which was then the only Towers store open.

On May 2, 1963, in order to obtain release of its merchandise and the liens (including another which had been filed in Montgomery County), Rockower paid the total amount of the •sales tax claimed — $18,558.99, after the Comptroller waived penalties of $5,676.67 and interest of $169.19 and agreed to consider the protests of Rockower, previously filed, as claims for refund.

After a hearing, the Comptroller denied the refund and on appeal to the Circuit Court for Baltimore County Judge Turn-bull affirmed for the reasons given in the opinion of the hearing officer of the Comptroller.

Rockower argues (1) that under the Retail Sales Tax Act Towers, not Rockower, was a vendor liable under the law for the collection and payment over to the Comptroller of sales taxes; (2) that if it be assumed that Rockower was a vendor, it was an involuntary trustee of the tax funds collected (Code (1957), Art. 81, §327, says in part “the tax shall be paid by the purchaser to the vendor as trustee for and on account of the State * * *”) and that as a trustee it is not an insurer or guarantor and is liable only for failure to exercise ordinary care and that it did not so fail; and (3) that the Comptroller should not be permitted to retain funds obtained as the result of assessment and collection procedures which violated the statutes.

We think Rockower was a vendor. Code (Supp. 1965), Art. 81, §324 (b), defines a vendor as “* * * any person selling property or rendering services upon the sale of which a tax is imposed under §325 of this subtitle.” Section 324 (d) of Art. 81 defines “sale and selling” to mean “* * * any transaction whereby title or possession, or both, of tangible personal property is or is to be transferred by any means whatsoever for a consideration * * Rockower argues that in the relationship that existed Towers was the vendor because “* * * the right to possession and title to the goods passed to the purchaser at the time payment was made by the purchaser to Towers, at Towers’ cash registers manned by Towers’ employees.” Assuming that neither title nor possession was transferred to a purchaser until Towers collected the purchase price at the checkout counter, Rockower’s argument merely confuses the time of passage of possession and title with the entity which makes the transfer. Towers was only a collecting agent for Rockower. Under paragraph one of the agreement between them, Rockower is leased space “for the sale at retail” of men’s wear. Another provision of the agreement is that Rockower shall purchase for its own account and on its own credit the merchandise it sells, and another provision is that Rockower shall use its own personnel to make the sales. The agreement defines “net sales” of Rockower to mean the “* * * total amount charged by the Licensee in connection with any and all sales of merchandise and service to patrons and customers * * Paragraph 4 of the agreement refers to monies “* * * from sales of merchandise in or emanating from said [licensee’s] department * * *.” Paragraph 6 states that Rockower is to be liable for and pay Maryland sales taxes. In paragraph 12 Rockower agrees to sell to all at one price and to “* * * sell its merchandise at a retail price as low or lower than substantially comparable merchandise sold in retail stores within a radius of twenty-five (25) miles of the LICENSOR’S store * *

It is clear that although Towers’ employees collected the purchase price of merchandise which Rockower sold, Towers never had either title or possession to transfer to a purchaser. When the merchandise which Rockower handled was on the counters and shelves in its alloted leased space in the Towers store, it was in Rockower’s possession and Rockower owned it. When a customer selected some of the merchandise to buy, it passed to his provisional possession for as long as he remained in the store and when he paid for it at the check-out counter, title and final possession passed from Rockower to unite in the customer. Towers did no more than afford Rockower a place and an opportunity to makes sales and, as its agent, collect the purchase price and the sales tax due on the price.

Rockower says that because the Comptroller allowed Towers to make returns of and pay sales taxes on all sales made in its stores Towers was the vendor in all such sales, particularly because (a) the Comptroller sought a bond from Towers; (b) he permitted it to deduct the two per cent of sales tax collections allowed to vendors for collecting and paying over those taxes; (c) he permitted Towers to collect sales taxes on the aggregate amount of sales; (d) he accepted payment of sales taxes from Towers creditors' committee for the period from February 2 to February 28, 1963; (e) only Towers collected sales taxes from purchasers — not Rockower — and only one who actually collects sales taxes has a trust res to hold, under the statute, “as trustee for and on account of the State”; and finally (f) Rule 66 of the Comptroller, that “every factor * * * or agent acting for any principal * * * or entrusted with possession of any personal property for the purpose of sale shall be responsible for the proper collection and remittance of the tax with respect to such sales * *

We see the answer to these contentions to be that the law clearly makes Rockower the vendor in the situation and environment here involved, and the fact that the Comptroller, although realizing that Towers was an agent of various actual vendors, allowed it to file sales tax returns and pay the tax as a de facto vendor cannot estop the State from later asserting Rockower’s actual status as a vendor under the statutes.⁴ As a vendor, Rockower is liable for taxes collected but not paid over by its agent.

“The State in collecting its taxes acts in a governmental, and not in a proprietary capacity.

* * *

“It seems to be universally recognized that, generally, a State cannot be estopped by the acts and conduct of its officers or agents in the performance of the governmental function of collecting taxes legally due. The reason for the rule is obvious: no administrative officer is vested with the power to abrogate the statute law of the State, nor to grant to an individual an exemption from the general operation of the law.” Comptroller v. Atlas Industries, 234 Md. 77, 84.

See also C. E. Weaver v. Comptroller, 235 Md. 15, 22. The Comptroller’s Rule 66 is not intended to transfer the liability imposed by statute on a vendor to an agent of a vendor — and if it was so intended it would be invalid as beyond the power of the Comptroller to- promulgate — but merely to supplement the legal liability of a vendor by imposing an additional liability upon a vendor’s agent.

We turn to Rockower’s contention that if it is held to have been a vendor it was an involuntary trustee whose liability is only to exercise due care, and that in the selection and retention of its agent (Towers) with respect to the taxes collected by Towers, it did exercise due care. We see obvious factual flaws in this proposition but since we think the statutes impose an absolute liability on a vendor to collect and pay over to the State the proper sales taxes, there is no need to detail them.

Code (19S7), Art. 81, §327 provides that the sales tax on each taxable event shall be stated and charged separately from the price and a separate record of the tax kept, and then concludes : “The tax shall be paid by the purchaser to the vendor as trustee for and on account of the State, and the vendor shall be liable for the collection thereof for and on account of the State.” Section 328 then provides that:

“the vendor and any officer of any corporate vendor shall be personally liable for the tax collected or required to be collected under this subtitle * * *. Any vendor who fails to collect the tax, and any officer of a corporate vendor which fails to collect the tax * * * shall, in addition to all other penalties, be personally liable to the State for the amount uncollected.”

Rockower’s argument is that the liability of a vendor or an officer of a corporate vendor is only that of an involuntary trustee because the words “personally liable” in §328 should be read as no more than coextensive with the words “as trustee” in §327. It says that to read §327 and §328 as imposing absolute liability on a vendor “* * * would be to invert the whole structure of the Maryland Retail Sales Tax Act by making the vendor, and not the purchaser, the person on whom the tax is imposed.” It is true that the sales tax act imposes primary liability on the purchaser to pay the tax and we have so held repeatedly, Comptroller v. American Cyanamid, 240 Md. , and cases cited, and, indeed, a possible ultimate liability. See §331 of Art. 81 of the Code, making the tax payable directly by a purchaser to the Comptroller if the purchaser has failed to pay the tax or a vendor has failed to collect the tax on a taxable transaction. Nevertheless, it was competent for the Legislature to provide that in given situations, such as the failure of a vendor to collect the tax or to pay over to the State the sales taxes collected or required to be collected, that the delinquent vendor be declared to be an alternate taxpayer, absolutely bound to see that the proper sales taxes reached the Comptroller, and we think the Legislature did so provide in various sections of the sales tax act particularly §327, §328 and §342. The provision in §327 that the vendor collects the tax as trustee standing alone would support Rockower’s position, but that provision must be read with other parts of the act to ascertain the true intention of the Legislature. Section 328 imposes on the vendor a personal liability for taxes collected or required to be collected. This to us clearly means a liability different from and greater than the liability the vendor would have as a trustee and imports an absolute obligation on a vendor to collect and pay over to the Comptroller the money collected from the purchaser if it is available or the proper amount of his own money if it is not. So read, §327 makes sales taxes collected by a vendor trust funds subject to the rules of law as to identifiable trust funds in the hands of bankruptcy trustees, receivers or depositaries, and §328 adds a further provision to insure the revenues of the State — the personal absolute liability of a vendor. This interpretation of §327 and §328 is supported by the provisions of §342 (Supp. 1965) which makes the sales tax from the time it is due “* * * a personal debt of the person liable to pay the same to the State of Maryland,” and the debt “* * * shall be a lien upon all the property, real and/or personal, of any person liable to pay the same to the State * * *.” A vendor is a person liable to pay sales taxes to the State in some situations and certainly making his obligation to pay a personal debt, subject to a lien on all his property, is entirely inconsistent with the theory that the vendor’s liability is only that of a trustee.

Courts in other states where the purchaser is made primarily liable for the payment of sales taxes have reached the same conclusion as have we as to the absolute liability of a delinquent vendor under statutes substantially the same as the Maryland sales tax act. See In Re Atlas Television Co. (N. Y.), 6 N. E. 2d 94, 96; City of Philadelphia v. Heinel Motors (Pa. Super.), 16 A. 2d 761, 766; State v. Woods (Ala.), 5 So. 2d 732, 736; Williams v. Bear’s Den, Inc. (Ga.), 104 S. E. 2d 230; White v. State (Wash.), 306 P. 2d 230, 235.

In Comptroller v. Atlas Industries, supra, we construed the sales tax act as imposing an absolute liability on a vendor who did not take a resale certificate and held that he could not escape this liability by showing the purchase was in fact made with intent to resell.

There is little substance to Rockower’s final contention that it must be refunded the taxes it paid to release liens against its subsidiaries because the assessment procedures which underlay the liens and the liens were irregular.

The taxes which Rockower paid to release the various liens were due by the various Rockower wholly-owned subsidiary corporations when the liens were filed, as this opinion shows. The chief claim of error is that Rockower-7l Corp. owed only $1,643.26 but that a lien claiming $24,404.85 was filed against its property. It may be assumed that if the goods levied on had been sold and Rockower-7l Corp. could have shown a separate corporate identity, it would have been entitled to receive a refund of all of the sales proceeds in excess of $1,643.26 and the expenses of sale. Neither Rockower, the parent corporation, nor the 71 Corporation chose to challenge the validity or propriety of the lien against the 71 Corporation but, rather, in at least partial consideration of the waiver by the State of interest and penalties of some $6,000, decided to pay the taxes its subsidiaries owed in order to release not only the 71 Corporation lien but all the liens against the property of other subsidiaries. It is not shown that any subsidiary paid more than it owed and, in any event, Rockower, the parent company, can control what is paid by each subsidiary. Rockower, having paid taxes which were due, may not now receive back those taxes in whole or in part because there may have been irregularities in the procedures which led to the payment.

Order affirmed, with costs.

1 . The written agreement between Towers and each licensee provided that the “LICENSEE shall purchase its merchandise for its department and for its own account. * * * in its own name and on its own credit, and [it] shall be paid for directly by LICENSEE, and LICENSEE agrees not to pledge the credit of LICENSOR [Towers]. [N]othing in this Agreement shall in any way be construed to constitute a co-partnership or joint venture * *

2 . The standard agreement provided:

“LICENSEE shall continuously conduct a retail business as above in said department in said store during the period of this agreement. LICENSEE shall maintain a full and complete line of new, seasonable, representative and saleable merchandise which shall be of such variety, size and character as to meet the demand of the store trade * * *.

“LICENSEE shall furnish and engage qualified and competent employees for the conduct of said department. All persons employed in and about or in connection with said business * * * shall be * * * recognized to be employees of LICENSEE * *

3 . The agreement provided:

“All monies from sales of merchandise in or emanating from said department shall be paid directly to and handled by LICENSOR’S cashiers, and a separate and distinct account shall be kept by LICENSOR of all such monies by means of a separate key on LICENSOR’S cash registers to identify all sales of merchandise in said department. LICENSEE agrees that the receipts (including checks accepted by LICENSOR) from the operation of said department, to be conducted by LICENSEE,, shall go through the regular channels of the business of LI-CENSOR, according to its usual and ordinary methods of doing. business, in the same manner as sales made by LICENSOR fqr its account in its general business, and shall be deposited .daily in the account which the LICENSEE maintains in a bank designated by LICENSOR, less 10*4%, subject to payment as herein provided. LI-CENSOR shall furnish to LICENSEE not later than Friday of each we?k? during the, term of this license, a statement of all such deposits and charges, together with duplicate deposit slips, for the preceding calendar week ending the preceding Saturday. LICENSOR shall deduct from the. next succeeding daily .deposit or deposits ,any sums due,from the LICENSEE to the LICENSOR as rental over the guaranteed minimum rental, the amount of any credits for merchandise returned by customers, and the amount of any and all other charges against LICENSEE’S .account mafle by LICENSOR in accordance with the terms of this license., At the time, of the rendition of said statement, LICENSOR shall deposit to the account of LICENSEE, as provided above, the balance due to LICENSEE thereunder after said deductions, if any.”

4 . We are not to be understood as approving or disapproving the action of the Comptroller in allowing Towers to treat all purchases by one customer in the same store as sales made by the same vendor.