Kearns v. State Tax Assessor

• Decision Date: 16 May 1995
• Citation: 658 A.2d 673
• Parties: Mark KEARNS v. STATE TAX ASSESSOR.
• Court: Maine Supreme Court

Page 673

658 A.2d 673

Mark KEARNS v. STATE TAX ASSESSOR.

Supreme Judicial Court of Maine.

Argued May 16, 1995 ^*.

Decided May 30, 1995.

Mark A. Kearns, Wells, pro se.

Dennis M. Doiron (orally), Asst. Atty. Gen., Augusta, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN and LIPEZ, JJ.

ROBERTS, Justice.

Mark Kearns, an officer and director of Atlantic Hospitality, Inc., appeals from a judgment entered in the Superior Court (York County, Perkins, A.R.J.) on Kearns's complaint for judicial review of an assessment against him personally for Atlantic's unpaid taxes for the period May through December 1989. Kearns contends that the court (1) misapplied 36 M.R.S.A. § 177(1) (1990) when it permitted the Assessor to assess him for penalties and interest related to Atlantic's unpaid taxes; and (2) erred by concluding that he was not the proper party to raise the issue of offsetting against his assessment an alleged prior overpayment of taxes by Atlantic. We affirm the judgment.

Contrary to Kearns's contentions, the version of section 177(1) in effect in 1989 permitted the assessment against him of not only the unpaid taxes of Atlantic, but also the penalties and interest related to those taxes. The applicable section provided in pertinent part:

All sales and use taxes collected by any person pursuant to Part 3 ... shall constitute a special fund in trust for the State Tax Assessor. The liability for the taxes shall be enforceable by assessment and collection ... against the person and against any officer, director, member, agent or employee of that person who, in that capacity, is responsible for the control or management of the funds or finances of that person or is responsible for the payment of that person's taxes.

For purposes of this statute, "tax" was defined as "the total amount required to be paid, withheld and paid over, or collected and paid over with respect to estimated or actual tax liability under this Title, including any interest or civil penalty relating thereto." 36 M.R.S.A. § 111(5) (1990) (emphasis added). Section 177 was later amended to add solid waste disposal fees pursuant to 36 M.R.S.A. §§ 4831-4834 (1990 & Supp.1994), as payments for which liability could be imposed on individuals responsible for making those payments. P.L.1991, ch. 546, § 1 (effective July 10, 1991). The amended statute accordingly permitted enforcement by assessment and collection of "the taxes or fees and any interest or penalty on taxes or fees." Id. Because this amendment for the first time made section 177 applicable to certain fees (which were not defined to include related interest and penalties), as opposed to only certain taxes,...