Silver v. Auditing Div. of State Tax Com'n

• Decision Date: 30 August 1991
• Docket Number: No. 890138,890138
• Citation: 820 P.2d 912
• Parties: Dennis M. SILVER, SN 529-54-3166, Petitioner, v. AUDITING DIVISION OF the STATE TAX COMMISSION of Utah, Respondent.
• Court: Utah Supreme Court

Page 912

820 P.2d 912

Dennis M. SILVER, SN 529-54-3166, Petitioner, v. AUDITING DIVISION OF the STATE TAX COMMISSION of Utah, Respondent.

No. 890138.

Supreme Court of Utah.

Aug. 30, 1991.

Kent B. Alderman, Salt Lake City, for petitioner.

R. Paul Van Dam, Leon A. Dever, Salt Lake City, for State Tax Com'n.

ZIMMERMAN, Justice:

Dennis M. Silver petitions for review of a final decision of the Utah State Tax Commission ("the Commission") ordering him to pay a $1,000-per-year penalty for failing to file tax returns during the years 1978 to 1983. Silver claims that the penalty requires a showing of fraudulent intent and should not be imposed because the record contains no evidence that he had such an intent to evade the tax or filing requirement, as required by section 59-14A-92(5) of the Code. Utah Code Ann. § 59-14A-92(5) (Supp.1986). We agree. We reverse the Commission and find that the penalty was improperly assessed.

On August 16, 1984, Silver was ordered by Mr. Rodahl, a compliance auditor with the Commission, to file within thirty days state income tax returns for the years 1977 to 1983. On September 19, 1984, Rodahl extended the time for Silver to file the returns. Silver did not file by the expiration of this deadline. Several months passed without any communication between the Commission and Silver. During this period, Silver had difficulty in reconstructing past records and contacted an accountant and bookkeeper to help him prepare the returns.

On July 1, 1985, Silver's case was transferred from Rodahl to Ms. Milligan. She reviewed Silver's file, noted that the returns had not yet been filed, and initiated writ of mandate proceedings against Silver in the district court. The writ was issued, and Silver was required to file the returns by September 25, 1985. He did not meet the deadline. He sought and received two more extensions from Ms. Milligan. When he still had not filed at the expiration of the second of these deadlines, Milligan obtained an order from the district court directing him to file the returns by April 25, 1986, or be held in contempt of court.

On April 25th, Silver filed all the returns except the 1981 return, which was filed shortly thereafter. The Commission, acting under authority of section 59-14A-92(5) of the Code, imposed the $1,000 penalty on Silver for the late filing of each return, contending that Silver had acted with the intent to evade the filing requirement. Silver appealed to the full Commission. Silver also asked the Commission to waive the requirement contained in section 59-1-505 of the Code that before one can seek review of a commission penalty order, one must deposit the full amount of the penalty with the Commission. See Utah Code Ann. § 59-1-505 (1987). The Commission upheld the penalty assessments, reasoning that Silver's conduct and the lack of proper record keeping provided sufficient evidence to support the conclusion that he had no intention of filing during the years in question. The Commission also denied the waiver request.

Silver petitioned this court to review the order. Unable to pay the deposit required by section 59-1-505, Silver filed for bankruptcy protection. The Commission filed a claim against Silver's estate for the amount of the penalties. On Silver's motion, the bankruptcy court lifted the automatic stay to allow this court to rule on the state tax issues.

The Commission then filed a motion to dismiss the appeal for several reasons, including failure to comply with the deposit requirement of section 59-1-505. Silver opposed the motion, arguing that the deposit requirement is unconstitutional because it denies due process of law under the Utah State and United States Constitutions and access to the courts under article I, section 11 of the Utah Constitution. We denied the Commission's motion and reserved the ruling on the issues raised until after full presentation before this court.

On the merits, Silver argues that the penalties were imposed improperly. First, he argues that the statute requires a showing of "fraudulent" intent to evade. Second, and relatedly, he contends that the Commission failed to meet its evidentiary burden on intent. Third, he contends that the Commission did not follow the appropriate procedures in assessing the penalty. Our disposition of the first of these questions disposes of this matter.

Before addressing the issues on appeal, we must first consider the section 59-1-505 deposit requirement. By filing a claim in Silver's chapter 13 bankruptcy plan, the Commission has submitted itself to payment under the plan. The purpose of chapter 13 is to enable an individual with court supervision and protection to develop and perform under a plan for the repayment of debts over an extended period of time. In some cases, the plan will call for full payment; in others, it may offer creditors a percentage of their claims in full settlement. Whatever the nature of the Commission's ultimate claim, it has submitted itself to the chapter 13 process by filing a claim, and the tax penalty is subject to any confirmed plan and will be satisfied or discharged according to the plan. The bankruptcy court has approved the Commission's claim pending the outcome of these proceedings. We therefore find that the section 59-1-505 deposit requirement is satisfied by the Commission's claim in Silver's chapter 13 plan.

We next turn to the merits of the issues on appeal. They revolve around the meaning to be given section 59-14A-92(5) of the Code. Section 59-14A-92 gives the Commission authority to impose various penalties upon taxpayers who fail to do what is required of them under the law. Subpart (5) of section 59-14A-92 provides for a civil penalty of up to $1,000 for the failure to make a return if it is done with "intent to evade" the filing requirement. Specifically, it states:

(5) Any person who, with intent to evade any tax or any requirement of this chapter, or any lawful requirement of the State Tax Commission, fails to pay the tax, or to make, render, sign, or verify any return, or to supply any information, within the time required by or under this chapter, or who, with like intent, makes, renders, signs, or verifies any false or fraudulent return or statement, or supplies any false or fraudulent information, is liable to a civil penalty of not more than $1,000 to be recovered by the State Tax Commission in the same manner as provided in this chapter for the collection of delinquent taxes, and is also guilty of a class B misdemeanor and shall be fined not to exceed $500 or be imprisoned not to exceed three months, or both. The fines provided by this section shall be additional to all other penalties in this chapter.

Utah Code Ann. § 59-14A-92 (Supp.1986) (emphasis added).

Silver's first contention is that the Commission erred when it imposed a series of $1,000 penalties upon him for failing to file timely. He argues that before a penalty can be imposed under subpart (5), the Commission must find that the delinquent taxpayer acted with "fraudulent intent," that is, "intent to deceive" that goes beyond mere mistake, negligence, or gross negligence. See 37 C.J.S. Fraud § 22 (1943). Silver concedes that he did not intend to file returns, but that this state of mind was based on an understanding, apparently mistaken, that he was not obligated to file under state or federal law.

The Commission takes the position before this court that "no fraud or intent to defraud was alleged, no fraud needed to be shown, and no fraud penalty was imposed." It characterizes subpart (5) as imposing a "civil evasion penalty without regard to any ... intent to defraud." In the Commission's view, it is enough that Silver sought to evade what in fact were the law's filing requirements. Consistent with this position, the Commission, in its findings of fact, conclusions of law, and final decision below, characterized Silver's state of mind as one in which he had "no intention of filing returns or keeping the proper records to determine income for the years in question." Based upon this finding, the penalties were imposed.

Before addressing the question of the state of mind required by subpart (5) of 59-14A-92, we set out the appropriate standard of review. The interpretation of the language of section 59-14A-92 is a pure question of law upon which the technical expertise of the agency and its experience in administering the tax laws will be of no real assistance. Therefore, we give no deference to the Commission's decision that subpart (5) does not require fraudulent intent and review that determination for correctness. See Savage Indus., Inc. v. Tax Comm'n, 811 P.2d 664, 666-67 (Utah 1991); see also Chris & Dick's Lumber & Hardware v. Tax Comm'n, 791 P.2d 511, 513-14 (Utah 1990); Hurley v. Board of Review of Indus. Comm'n, 767 P.2d 524, 526-27 (Utah 1988).

Because this action was commenced before the effective date of the Utah Administrative Procedures Act ("UAPA"), Utah Code Ann. §§ 63-46b-1 through -22 (1990), we do not apply that statute, but we do note that the standard would be the same under UAPA as it is under pre-UAPA case law. Savage, 811 P.2d at 670.

Moving to the merits of Silver's claim, we address the proper construction of section 59-14A-92(5). We first look to the plain language of the statute as the best expression of legislative intent. Chris & Dick's, 791 P.2d at 514; Allisen v. American Legion Post No. 134, 763 P.2d 806, 809 (Utah 1988). In construing the statute, we follow the rule that the terms of a statute should not be interpreted in a piecemeal fashion, but as a whole. Amax Magnesium Corp. v. Tax Comm'n, 796 P.2d 1256 1258 (Utah 1990); Peay v. Board of Ed. of Provo City Schools, 14 Utah 2d 63, 66, 377 P.2d 490, 492 (1962). We also construe tax statutes liberally in favor of the taxpayer. Salt Lake County v. Tax Comm'n, 779 P.2d 1131, 1132 (Utah 1989); Builders Components Supply Co. v. Cockayne, 22 Utah 2d 172, 175...