Goldberg v. Administrative Hearing Commission of Missouri

• Decision Date: 12 November 1980
• Docket Number: No. 61649,61649
• Citation: 609 S.W.2d 140
• Parties: Gerald GOLDBERG, Director of Revenue, State of Missouri, Petitioner, v. ADMINISTRATIVE HEARING COMMISSION of MISSOURI, Michael C. Horn, Commissioner, and Armco, Inc., Respondents.
• Court: Missouri Supreme Court

Page 140

609 S.W.2d 140

Gerald GOLDBERG, Director of Revenue, State of Missouri, Petitioner, v. ADMINISTRATIVE HEARING COMMISSION of MISSOURI, Michael C Horn, Commissioner, and Armco, Inc., Respondents.

No. 61649.

Supreme Court of Missouri, En Banc.

Nov. 12, 1980.

Rehearing Denied Dec. 15, 1980.

John Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for petitioner.

W. H. Bates and William K. Waugh, III, Kansas City, for respondents.

WELLIVER, Justice.

This is a petition for review from a final decision of the Administrative Hearing Commission (hereinafter referred to as the "Commission") which set aside the director of revenue's (hereinafter referred to as "petitioner") assessment of an addition to tax for Armco, Inc.'s (hereinafter referred to as "respondent") late filing of its return and payment of withheld income taxes. Such a decision is reviewable by the court of appeals or this Court under § 161.337, RSMo 1978. ¹ In this instance, jurisdiction is in this Court under Mo.Const. art. V, § 3, because resolution of this case requires construction and not application of a revenue law. City of Willow Springs v. Missouri State Librarian, 596 S.W.2d 441, 442 (Mo. banc 1980). We hold that under § 143.751(3), the deficiency must be due to negligence or intentional disregard of rules and regulations before petitioner may assess five percent of the deficiency as a penalty or addition to the tax. We affirm the decision of the Administrative Hearing Commission.

The cause was submitted upon a stipulation of facts. As required by § 143.191-.261, respondent withheld income taxes in the amount of $177,547.84 from the October 1977 wages of its employees. After claiming the compensation deduction of $887.74 allowed under § 143.261, for collection and timely remittance of the tax, respondent mailed petitioner the sum of $176,660.10.

Under § 143.221, respondent was required to remit the tax to petitioner by the fifteenth day of November, 1977. Section 143.851, and petitioner's regulation 12 CSR 10-2.055(8)(E) provide that filing is timely if the return is properly addressed, stamped and posted in the United States mail on or before the due date.

Petitioner received respondent's return and payment in an envelope postmarked November 18, 1977, three days after the due date. On December 20, 1977, petitioner mailed to respondent a "Missouri Withholding Tax Notice of Adjustment", in which petitioner denied respondent the compensation deduction and assessed interest in the amount of $93.87. Petitioner also assessed a five percent addition to tax in the amount of $8,877.39. No statutory authorization for petitioner's actions was cited in the first notice of adjustment.

On December 28, 1977, respondent wrote petitioner asking for a clarification of petitioner's actions, and advised petitioner that the return was mailed on November 15, 1977. On March 3, 1978, petitioner mailed respondent a photostatic copy of the envelope in which the return and payment was received showing November 18, 1977, as the postmark date. Petitioner informed respondent by letter that,

In accordance with Sections 143.261, 143.731 ² and 143.741, RSMo 1972, and supplement thereto, all delinquent withholding returns are subject to a five percent (5%) per month not to exceed twenty-five percent (25%) addition to tax, one-half percent ( 1/2%) per month interest charge, and loss of the timely filing compensation.

Stipulation of Facts, Exhibit G. On March 22, 1978, in response to another inquiry by respondent, petitioner (then Director of Revenue Gerald Goldberg) wrote respondent as follows:

On the issue of additions to tax, there are two provisions which have potential applicability (Sections 143.741.1 and 143.751.3). Although the first provision (Section 143.741.1) will not apply upon a showing of reasonable cause, the second provision (Section 14.751.3) (sic) does not appear to have any exculpatory standard built into its language and seems to apply even though reasonable cause exists. Because of the interplay of these two sections, it has been the policy to impose a five percent (5%) addition to tax in all cases of delinquency and to withhold imposing the additional twenty percent (20%) addition to tax when there is a showing of reasonable cause or excusable neglect. While the five percent (5%) addition to tax may seem unreasonable, unduly harsh and unrealistic when it results in an increased liability of $8,877.39 for being three days late, we do not read the statutes as permitting any exercise of discretion on those grounds.

Stipulation of Facts, Exhibit I.

On July 5, 1978, petitioner issued a "Final Notice of Deficiency". ³ On August 31, 1978, respondent filed with petitioner a "Petition for Abatement of Missouri Income Tax", in which respondent protested assessment of the addition to tax and requested a hearing. On November 29, 1978, petitioner issued "Findings of Fact upon Reconsideration". Citing only § 143.741, petitioner concluded that respondent's late filing was not due to reasonable cause and held that the final "notices" of deficiency were correct. Respondent thereafter appealed to the Commission under § 161.273.

The facts presented to the Commission indicated that on an annual basis respondent's outgoing mail averages 30,000 pieces per day. During the week of November 14, 1977, the actual daily volume exceeded 34,500 pieces. Specific procedures are followed in the preparation and mailing of the 1200 payroll tax returns which respondent prepares annually and those procedures were followed in the mailing of this return. In 1977 alone, respondent had processed 3,771 of these filings and in a ten year period over 30,000. In only a few instances had timeliness of filing ever been questioned and in no instance had a penalty ever been assessed.

There is no dispute that this return was placed in the payment and mailing process in time to have been postmarked on November 15, in the usual and customary course of events. The Commission found that under these circumstances respondent had exercised ordinary business care and prudence in the preparation and mailing of its return and payment, and that in the normal course of events the return and payment would have been in the mail and postmarked November 15, 1977. The Commission held that § 143.751(3) requires that failure to file the return must be due to lack of reasonable cause, and the delinquency due to negligence or intentional disregard of rules and regulations, before petitioner may impose the five percent addition to tax. Petitioner then sought review in this Court under § 161.337.

Section 143.741(1), relating to failure to file returns provides:

In case of failure to file any return required under sections 143.011 to 143.996 on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return five percent of the amount of such tax if the failure is not for more than one month , (and five percent for each additional month not to exceed twenty-five percent total).

Section 143.751, provides:

1. If any part of a deficiency is due to negligence or intentional disregard of rules and regulations (but without intent to defraud) there shall be added to the tax an amount equal to five percent of the deficiency.

3. If any employer, without intent to evade or defeat any tax imposed by sections 143.011 to 143.996 or the payment thereof, shall fail to make a return and pay a tax withheld by him at the time required by or under the provisions of sections 143.011 to 143.996, such employer shall be liable for such taxes and shall pay the same together with interest thereon and the addition to tax provided in subsection 1 of this section, and such interest and addition to tax shall not be charged to or collected from the employee by the employer.

The Commission ruled that § 143.751(3), should be read to harmonize with the rest of the chapter on income taxation, and specifically with §§ 143.741 and 143.751(1), both of which permit a taxpayer to avoid the five percent addition to tax by showing reasonable cause or freedom from negligence or intent to disregard rules and regulations. The Commission found that the statutes "impose a 5% (addition to) tax for late filing or payment, respectively ," and that the "apparent intent" of the statutes is "to assess an additional 5% (addition to) tax only if the failure to comply is without reasonable cause." Finding reasonable cause in the instant case, the Commission held that respondent was not liable for the five percent addition to tax under either of the sections.

Petitioner contends that the decision of the Commission is unauthorized by law under § 161.338. Petitioner argues, that § 143.751(3), alone deals with the responsibilities of employers who withhold tax from employee's wages pursuant to Chapter 143, and that the Commission's construction of that section in conjunction with the other provisions of Chapter 143 was erroneous.

This Court's primary responsibility is to ascertain the intent of the general assembly from the language used, and to give effect to that intent. State v. Krause, 530 S.W.2d 684, 685 (Mo. banc 1975); Playboy Club, Inc. v. Myers, 431 S.W.2d 228, 231 (Mo.1968); Marty v. State Tax Commission, 336 S.W.2d 696, 699 (Mo.1960). We are bound by the rule that all statutes relating to taxation are to be strictly and narrowly construed against the taxing authority and in favor of the taxpayer. Cascio v. Beam, 594 S.W.2d 942, 945 (Mo. banc 1980); Wiethop Truck Sales, Inc. v. Spradling, 538 S.W.2d 585, 586-87 (Mo.1976); O'Dell v. Division of Employment Security, 376 S.W.2d 137, 141-42 (Mo.1964); State ex rel. Benson v. Union Electric Co., 359 Mo. 35, 220 S.W.2d 1, 3 (banc 1949); A. J. Meyer & Co. v. Unemployment...