Taxpayer is an Indiana company (also referred to as"Company"), which purchased and distributed cigarettes and othertobacco products ("OTPs") in Indiana. The Indiana Department ofRevenue ("Department") determined that Taxpayer failed to remit thetaxes on cigarettes which it purchased during July, August, and September 2011.The Department also determined that Taxpayer failed to remit the taxes on OTPswhich it purchased and distributed during January 1 through September 30, 2011.As a result, the Department assessed Taxpayer additional cigarette tax, othertobacco product tax, interest, and penalty. Taxpayer ceased its businessoperation in late 2011.
…
Taxpayer and the shareholders/officers stated that"Company admits the liabilities as described above and does not protestthem in this matter." Rather, the shareholders/officers contended, inrelevant part, that:
[T]he shareholders, officers and possible responsibleofficers of the corporation do protest the liability and do so because Ball v.Indiana Department of Revenue (563 N.E.2d 522) (1990) says that there is nonotice which is forwarded to responsible corporate officers since the Companyhas received a notice which is acknowledged herein. Thus, [theshareholders/officers] do hereby protest the liability as it may relate to thempersonally and in their capacity as officers [for] the Company. (Taxpayer andits shareholders' protest letter, page 2).
…
IC § 6-8.1-10-9 further provides, in relevant part, that:
(a) As used in this section:
(1) "Dissolution" refers to dissolution of acorporation under IC 23-1-45through IC 23-1-48,IC 23-17-23,or IC 23-17-24.
(2) "Liquidation" means the operation or act ofwinding up a corporation's affairs, when normal business activities haveceased, by settling its debts and realizing upon and distributing its assets.
(3) "Withdrawal" refers to the withdrawal of aforeign corporation from Indiana under IC 23-1-50or IC 23-17-26.
(b) The officers and directors of a corporation effecting dissolution,liquidation, or withdrawal shall do the following:
(1) File all necessary tax returns in a timely manner asrequired by this title.
(2) Make all tax payments due or determined due to thedepartment or a county treasurer in a timely manner as required by this title.
(3) File with the department a form of notification withinthirty (30) days of the issuance of a certificate of dissolution, decree ofdissolution, the adoption of a resolution or plan, or the filing of a statementof withdrawal. The form of notification shall be prescribed by the departmentand may require information concerning:
(A) the corporation's assets;
(B) the corporation's liabilities;
(C) details of the plan or resolution;
(D) the names and addresses of corporate officers, directors,and shareholders;
(E) a copy of the minutes of the shareholders' meeting atwhich the plan or resolution was formally adopted; and
(F) such other information as the department may require.
The department may accept, in lieu of its own form of notification,a copy of Form 966 that the corporation filed with the Internal RevenueService.
(c) Unless a clearance is issued under subsection (g), for aperiod of one (1) year following the filing of the form of notification withthe department, or the filing of all necessary tax returns as required by thistitle, including the final tax return, whichever is later, the corporateofficers and directors remain personally liable, subject to IC 23-1-35-1(e)or IC 23-17, for anyacts or omissions that result in the distribution of corporate assets inviolation of the interests of the state or a political subdivision (as definedin IC 36-1-2-13).An officer or director held liable for an unlawful distribution under thissubsection is entitled to contribution:
(1) from every other director who voted for or assented tothe distribution, subject to IC 23-1-35-1(e)or IC 23-17; and
(2) from each shareholder for the amount the shareholderaccepted.
(d) The corporation's officers' and directors' personalliability includes all taxes, penalties, interest, and fees associated with thecollection of the liability due the department or the county. In additionto the penalties provided elsewhere in this title, a penalty of up to thirtypercent (30 [percent]) of the unpaid tax may be imposed on the corporateofficers and directors for failure to take reasonable steps to set asidecorporate assets to meet the liability due the department or the county.
(i) This section does not limit the liability of aresponsible corporate officer for withheld income taxes or collected grossretail taxes.
(Emphasis added).
In this instance, Taxpayer/Company stated that it agreeswith the Department's proposed assessment concerning its tax liabilities and itdoes not protest the assessments against Taxpayer. Taxpayer'sshareholders/officers, however, assert that they should not be held personallyresponsible for Taxpayer/Company's tax liabilities because the tax liabilitiesat issue here are not "sales tax" or "withholding tax,"which specifically states that the responsible officers remain personallyliable.
The Department must respectfully disagree. IC § 6-8.1-10-9specifically states that a corporation's officers remain personally responsiblefor the corporation's tax liabilities, which include "all taxes,penalties, interest, and fees associated with the collection of the liabilitydue the department." The same provision also "does not limit theliability of a responsible corporate officer for withheld income taxes orcollected gross retail taxes." Since Taxpayer/Company admits its taxliabilities, its shareholders/officers remain personally responsible pursuantto IC § 6-8.1-10-9.
In short, the protest of Taxpayer/Company'sshareholders/officers is respectfully denied.
Hiç yorum yok:
Yorum Gönder