Are You Minding The Store? Executives Held Personally Liable For Unreported Sales Tax

Two recent decisions provide an important reminder for executives and tax managers of Internet retailers and remote sellers: Make sure that you: (1) understand your company’s sales and use tax obligations; (2) have a defensible position on state tax issues; and (3) pay attention to notices from state revenue departments, including those that come from outside your home state ― or you could find yourself subject to personal liability for unreported sales and use tax.

Most states’ tax laws deem sales/use taxes collected by a company to be held in trust for the state, and allow the state to impose personal liability upon responsible corporate officers for the failure to report and remit such “trust fund” taxes. Some state statutes go farther and impose liability on corporate officers for unreported tax.

In a New York State Tax Tribunal Decision (DTA No. 822971) issued on February 23, 2012, the CEO of a publicly-traded, online vendor of wireless phone devices and accessories was determined to be personally liable for unpaid sales tax, largely with respect to shipping and handling fees charged by his company on sales to consumers. The CEO argued that he could not be held personally liable because, among other things: (1) the company had a tax department that handled such matters, on which he relied, and that reported to the company’s CFO; (2) the company further relied upon outside accountants and auditors to ensure tax compliance; (3) the size of the company and number of transactions involved made monitoring them impossible for the company’s chief executive; and (4) the CEO did not sign the company’s sale tax returns. The Tax Tribunal rejected all of the CEO’s arguments, holding that he was a responsible officer with the power to exercise oversight over all functions related to sales tax compliance, and could not avoid liability by arguing that he relied upon others – even a full tax department and outside tax professionals – to ensure the company’s compliance.

In Eberhardt v. Michigan Department of Treasury, Michigan Court of Appeals No. 299532 (March 8, 2012), the Court upheld the imposition of personal liability against the sole shareholder and responsible corporate officer of an Indiana retailer of spas and related supplies, for unreported tax on sales to Michigan residents. The Department had previously issued an assessment for unpaid sales/use tax to company, which failed to respond. The Department subsequently assessed the shareholder for the amounts not paid by the company on the theory that he was personally liable as a responsible corporate officer. The appellant responded by arguing that the State of Michigan lacked jurisdiction to issue the earlier assessment to the company. The Michigan Tax Tribunal upheld the assessment, and the Court of Appeals affirmed. The Court found that the corporate officer was barred by the company’s failure to respond to the original sales tax assessment to raise the issue of lack of jurisdiction over the company as a defense. The Court therefore affirmed the imposition of liability of over $225,000 against the appellant.

These recent decisions should be a wake-up call for all corporate officers and tax managers – whether they work in a sole proprietorship, small private company, or even in a large, publicly traded company – to be certain that the they are confident the company’s state sales/use tax affairs are being handled appropriately, and tax counsel consulted where they have meaningful doubt or uncertainty regarding the company’s compliance. Failure to exercise proper oversight responsibility could mean the company’s tax liabilities become their own.

Obama Administration Releases Consumer Privacy Bill of Rights

In April 2011, Senators Kerry and McCain introduced a bill entitled the “Commercial Privacy Bill of Rights." As discussed in this space, the bill would have required online collectors of information to permit individuals to opt out of the collection of information about browsing and shopping activities and required affirmative consent (opt-in) for the collection of sensitive personally identifiable information, including email addresses. The bill’s introduction was met with significant hand-wringing by the online business community about the impact that it might have on the business practices of even the most reputable electronic merchants. The bill was referred to committee, and little has been heard about it since.

But the issue has not gone away. Apple, Google, Facebook, Path, UPromise, and others have all suffered embarrassing public relations setbacks as a result of the exposure of certain of their practices relating to the collection and use of user information.

In the meantime, the Obama Administration has shifted its focus to a (mostly) non-legislative solution to the perceived need for more robust protection of consumers’ online privacy. On February 23, 2012, the Obama administration published A Consumer Privacy Bill of Rights The Consumer Privacy Bill of Rights provides for industry self-regulation coupled with the prospect of government enforcement in the event that industry fails to do the things that it claims it will do. It would apply to “personal data,” broadly defined as any data that can be linked back to an individual.

More Cautionary Tales of State Tax Laws With Retroactive Effects

We have written before about retroactive tax laws, but there is reason for concern that the phenomenon of states resorting to retroactivity may be on the rise. In the most recent case to wind its way to the end of the state appeal process, the Michigan Court of Appeals upheld a statute that amended Michigan’s use tax code with an effective date 5 years prior to its enactment. General Motors Corp. v. Department of Treasury, 290 Mich. App. 355 (2010), appeal denied, 489 Mich. 991 (2011), and cert. denied, 132 S.Ct. 1143 (2012). The Michigan Supreme Court denied review in the case last year, and the U.S. Supreme Court refused to review the decision a few weeks ago, in late January 2012. The decision by the GM Court, which cited the Kentucky case discussed in our earlier blog post, Miller v. Johnson Controls, 296 S.W.3d 392 (Ky. 2009), rehearing denied (2009), and cert. denied, 130 S.Ct. 3324 (2010), suggests that the legal standard a state must satisfy to amend its tax law retroactively is, in many instances, not very exacting.

GM concerned a statute passed by the Michigan legislature to block the giant automaker (and potentially other companies) from obtaining a refund of use tax paid on “demonstration” vehicles driven temporarily by GM employees, but expressly held by GM in inventory for resale, and later sold to consumers. Over the years, GM had paid tens of millions of dollars in use tax based on the Michigan Department of Treasury’s enforcement position, asserted in audits of the company, that GM was required to self-assess and pay Michigan use tax as a result of its employees’ temporary use of the vehicles in the state.

However, in 2006, the Michigan Court of Appeals held (in a case involving auto dealerships) that such demonstration vehicles acquired and held for resale were not subject to use tax, and that interim employee use did not result in conversion of the autos’ use to a taxable use, as the Department argued. The Michigan Supreme Court affirmed the relevant portion of the Betten decision in 2007. Betten Auto Center, Inc. v. Department of Treasury, 272 Mich.App. 14, 20-22 (2006), aff’d in pertinent part, 478 Mich. 874 (2007).