Sanadco Inc., a Texas Corporation Mahmoud Ahmed Isba Broadway Grocery, Inc. And Shariz, Inc. v. Glenn Hegar, in His Individual and Official Capacity as Comptroller of Public Accounts Office of Comptroller of Public Accounts for the State of Texas And Ken Paxton, in His Official Capacity as Attorney General of the State of Texas

ACCEPTED
03-14-00771-CV
4924164
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/16/2015 4:46:10 PM
JEFFREY D. KYLE
CLERK

NO. 03-14-00771-CV
FILED IN
In The 3rd COURT OF APPEALS
AUSTIN, TEXAS

Third Court of Appeals 4/16/2015 4:46:10 PM
JEFFREY D. KYLE
AT AUSTIN, TEXAS Clerk

Sanadco Inc., Mahmoud A. Isba, Broadway Grocery, Inc., Shariz, Inc., Ruby
& Sons Store, Inc., and Rubina Noorani,
APPELLANTS
VS.

The Office of the Comptroller of Public Accounts; Glenn Hegar, in his
official capacity as Comptroller of Public Accounts for the State of Texas;
and Ken Paxton in his official capacity as Attorney General of the State of
Texas,
APPELLEES
__________________________________________________________
Appeal From Cause No D-1-GN-13-4352
The 200th District Court Of Travis County, Texas
The Honorable Charles Ramsay, Presiding
__________________________________________________________

ACCELERATED APPEAL FROM DENIAL OF
TEMPORARY INJUNCTION
___________________________________________________________

SAMUEL T. JACKSON
SBN 10495700
P.O. BOX 670133
ARLINGTON, TX 76003-0133
TEL: (512) 692-6260
FAX: (866) 722-9685
COUNSEL FOR APPELLANTS

ORAL ARGUMENT REQUESTED

ACCELERATED APPEAL, SANADCO, ET AL 1
 IDENTITY OF PARTIES AND COUNSEL

APPELLANTS:
Sanadco Inc., Mahmoud A. Isba, Broadway Grocery, Inc., Shariz, Inc., Ruby
& Sons Store, Inc., and Rubina Noorani

COUNSEL FOR APPELLANTS:
LAW OFFICE OF
SAMUEL T. JACKSON
P.O. Box 170633
Arlington, Texas 76003-0633
TEL: (512) 692-6260
FAX: (866) 722-9685
Email: jacksonlaw@hotmail.com

APPELLEES:
The Office of the Comptroller of Public Accounts; Glenn Hager, in his official
capacity as Comptroller of Public Accounts of the State of Texas; and Ken
Paxton, in his official capacity as Attorney General of the State of Texas

COUNSEL FOR APPELLEES:
JACK HOHENGARTEN
Assistant Attorney General
FINANCIAL LITIGATION DIVISION
P.O. Box 12548
Austin, TX 78711-2548
TEL: (512) 475-3503
FAX: (512) 477-2348/480-8327
Email: jack.hohengarten@oag.state.tx.us

ACCELERATED APPEAL, SANADCO, ET AL 2
§ 151.433 (b) (4) and Tex. Tax Code § 155.105. The data provided is commonly

referred to as HB 11 data, but no directives authorizing or implementing its use in

tax audits was included in the legislation. The first reports became available on

January 1, 2008.

AP122 Amendments

The Comptroller then amended AP92 with AP122 effective July 22, 2009,

again directed to “All Audit Personnel” entitled “Guidelines for Convenience Store

Audits.” It revised the audit procedures and determination of mark-up percentages

and incorporated HB11 data, directing that this data must be the starting point for all

convenience store audits whether used as internal control verification or as data used

to estimate the audit.

It instructed the auditors to use HB 11 data, available taxpayer records and

third party records to produce the most accurate audit results. All of these records

were required to be compared to each other for accuracy and consistency in

purchasing patterns. It mandated that the product mix of each convenience store be

considered, and industry averages were to be used in the absence of these records.

For periods prior to January 1, 2008 when HB 11 data was unavailable, estimated

taxable sales were based on the average taxable sales for the periods when records

became available.

ACCELERATED APPEAL, SANADCO, ET AL 15
 TABLE OF AUTHORITIES

Cases
Armadillo Bail Bonds v. State,
772 S.W.2d 193, 195 (Tex.App.-Dallas 1989), aff'd, 802 S.W.2d 237 (Tex.Crim.App. 1991)
.................................................................................................................................. 26
Beacon Nat'l Ins. Co. v. Montemayor,
86 S.W.3d 260, 269 (Tex.App.-Austin 2002, no pet.) .................................................... 30
City of Pasadena v. Gennedy,
125 S.W.3d 687, 691 (Tex. App.-Houston [1st Dist.] 2003, pet. denied) ........................ 36
City of San Antonio v. City of Boerne,
111 S.W.3d 22 (Tex. 2003) .......................................................................................... 36
Combs v. Entertainment Publ'ns, Inc,
292 S.W.3d 712, 721-22 (Tex.App.-Austin 2009, no pet) ........................................ 28, 29
Crane v. Richardson Bike Mart, Inc.,
295 S.W.3d 1, 5 (Tex. App.-El Paso 2009, no pet.) ........................................................ 38
Doan v. Christus Health ArkLa-Tex,
329 S.W.3d 907, 910 (Tex.App.-Texarkana 2010, no pet.) ............................................ 36
El Paso Hosp. Dist. v. Texas Health & Human Servs. Comm'n,
247 S.W.3d 709, 713 (Tex. 2008)........................................................................... 33, 39
Fulton v. Finch,
162 Tex. 351, 356, 346 S.W.2d 823, 827 (1961) (orig. proceeding) ................................. 38
Greene v. State,
324 S.W.3d 276, 288 (Tex.App.- Austin 2010, no pet.) ................................................. 36

ACCELERATED APPEAL, SANADCO, ET AL 4
Herrera v. State,
No. 03-01-00101-CV, 2002 WL 185476, at *1 n. 4, 2002 Tex.App..-Austin Feb. 7, 2002,
no pet.) ...................................................................................................................... 37
In re Garza,,
126 S.W.3d 268, 271 (Tex. App.-San Antonio 2003, orig. proceeding) .......................... 38
In re Humphreys,
880 S.W.2d 402, 404 (Tex. 1994)................................................................................. 36
Key Western Life Ins. Co. v. State Bd. of Ins.,
350 S.W.2d 839, 846 (Tex. 1961)................................................................................. 36
Logal v. United States,
195 F.3d 229, (5th Cir. 1999)....................................................................................... 38
Marble Falls v. Scott,
275 S.W.3d 558, 566 (Tex.App. [3rd] 2008) ................................................................. 34
Montemayor v. City of San Antonio Fire Dept.,
985 S.W.2d 549, 551 (Tex.App.-San Antonio 1998, pet. denied) ................................... 39
Picker, Inc. v. Reagan,
632 S.W.2d 674, 677 (Tex.App.-Tyler 1982, writ ref'd n.r.e.) ........................................ 40
Rutherford Oil v. Land Office of Texas,
776 S.W.2d 232, 235 (Tex.App.-Austin 1989 ......................................................... 25, 40
Southern Canal Co. v. State Bd. of Water Engineers,
318 S.W.2d 619; 159 Tex. 227 (Tex. 1958)................................................................... 37
State Bd. of Ins. v. Republic Nat'l Ins. Co.,
384 S.W.2d 369, 372 (Tex.Civ.App. — Austin 1964, writ ref'd n.r.e.)............................ 37
State v. Crawford,
262 S.W.3d 532 (Tex.App.-Austin 2008, no pet.) ......................................................... 38

ACCELERATED APPEAL, SANADCO, ET AL 5
 ARGUMENT

A final judgment is the lifeblood of debt collection. “Without a final judgment

nothing happens . . . [t]hus, absent entry of [a final] judgment, no execution can be

had and, therefore, collection of the judgment debt is postponed or denied.”

Armadillo Bail Bonds v. State, 772 S.W.2d 193, 195 (Tex.App.-Dallas 1989), aff'd,

802 S.W.2d 237 (Tex.Crim.App. 1991).

A debt owed to the State must be collected by the same rules governing other

civil actions. Id. Tex. Tax Code Ann. § 111.0081(c) provides that “the amount of a

determination made under this code is due and payable 10 days after it becomes

final”. Consequently, the tax amount does not become "due and payable" until after

the Comptroller's decision in the redetermination hearing becomes final. The

judgment in a redetermination hearing becomes "final" (and thus a party has

exhausted administrative remedies): (1) after the time to seek [judicial] review of

the agency decision expires, if no affected person seeks such review, or (2) after an

affected person who seeks judicial review exhausts the substantial-evidence review

avenues. Subaru of America v. David McDavid Nissan, 84 S.W.3d 212, 224 (Tex.

2002).

I. The trial court abused its discretion by refusing to enjoin the
enforcement of the audits because the auditing procedures were not

ACCELERATED APPEAL, SANADCO, ET AL 25
Other Authorities
Shannon and Ewbank, The Texas Administrative Procedure and Texas Register Act Since 1976 —
Selected Problems, 33 Baylor L.Rev. 393, 424 (1981) ....................................................... 40

Regulations
34 Tex. Admin. Code § 3.328 ................................................................................... 11, 31

Constitutional Provisions
Tex. Const. art. V, § 6 (a)..................................................................................................9

ACCELERATED APPEAL, SANADCO, ET AL 7
at *1 n. 4, 2002 Tex.App..-Austin Feb. 7, 2002, no pet.) (not designated for

publication) (identifying suit under section 111.010 as "de novo action by the State

to collect delinquent tax").

The sine qua non of a de novo trial is the nullification of the judgment of the

first tribunal and a retrial of the issues on which the judgment or order was founded.

When jurisdiction of the second tribunal attaches, the judgment of the first tribunal

is not merely suspended, but nullified. Texas Dept. of Public Safety v. Banks Transp.

Co., 427 S.W.2d 593, (Tex. Sup. 1968); Southern Canal Co. v. State Bd. of Water

Engineers, 318 S.W.2d 619; 159 Tex. 227 (Tex. 1958). Accordingly, “res judicata”

and “final judgment” are inapplicable in de novo proceedings because the original

administrative order that is the subject of appeal is nullified in a de novo proceeding.

State Bd. of Ins. v. Republic Nat'l Ins. Co., 384 S.W.2d 369, 372 (Tex.Civ.App. —

Austin 1964, writ ref'd n.r.e.).

Consequently, the filing of the petition for review nullified the administrative

judgment, leaving nothing for the Comptroller to enforce pending entry of a final

judgment in the petition for review, and such enforcement activity was illegal and

premature. In the absence of a final judgment in the redetermination hearing, no tax

has yet been imposed and no tax is “due and payable” upon which a delinquency

may be predicated.

ACCELERATED APPEAL, SANADCO, ET AL 37
 nontaxable items

If a taxpayer is reporting under one of these methods and qualifies for the use of the method, the
audit procedure is to verify returns and computations based on the method being used.

Purchase invoices must be maintained for at least four years to verify a grocer's sales tax returns
regardless of the method chosen for reporting purposes.

The use of an optional special reporting method does not relieve the seller from the obligation
and duty of collecting tax in the specific manner as prescribed in the statute and in accordance
with the bracket system (TEX. TAX CODE ANN. 151.415).

Method B - Purchase Ratio Method
This method may be used by a grocer for reporting purposes only, and eligibility is restricted to:

 Any retail grocer
 Any vendor who maintains a separate grocery department with separate records which
may be audited by the Comptroller, as applies to the grocery department only
 Any vendor whose taxable receipts from the sale of taxable items are less than ten
percent of his total receipts

NOTE: Under the current definition of a retail grocer, most convenience stores
and many grocers do not qualify. However, the Comptroller still allows
them to use this method.

The following steps are used under this method:

 Determine the total sum of merchandise purchased for resale during the preceding
calendar or fiscal year
 Determine the total sum of taxable merchandise purchased during the preceding calendar
or fiscal year
 Divide the total amount of taxable merchandise purchased by the total merchandise
purchased for resale to obtain a percentage relationship
 Multiply the percentage obtained times the total sales for the reporting period to obtain
the taxable sales
 Items which are purchased tax-free and used by the taxpayer (and which are subject to
sales/use tax) must be included on the return as taxable purchases

An audit of a taxpayer who uses the purchase ratio method to compute taxable sales will
generally be limited to verification of reported amounts based on summary records and
computation procedures. The verification procedures should include:
 STATEMENT OF JURISDICTION

The Court of Appeals is authorized to exercise jurisdiction in this cause
pursuant to TEX. CONST. ART. V, § 6 (a); TEX. GOV’T CODE ANN. § 22.220 (a), and
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (a) (4).

ISSUES PRESENTED

Issue No. 1. Does the trial court abuse its discretion by refusing to enjoin
the Comptroller from enforcing administrative judgments for sales and
use taxes if the audit is void and unenforceable, because the audit
procedures were not adopted pursuant to the requirements of the
Administrative Procedure Act?

Issue No. 2. Does the trial court abuse its discretion by refusing to enjoin
the Comptroller from enforcing administrative judgments for sales and
use taxes before the judgments become final?

Issue No. 3. Does the trial court abuse its discretion by refusing to enjoin
the Comptroller from enforcing administrative judgments for sales and
use taxes before the petitions for declaratory judgment pursuant to Tex.
Gov’t Code Ann. § 2001.038 are determined?

ACCELERATED APPEAL, SANADCO, ET AL 10
Staff submitted the following exhibits in SOAH Docket No. XXX-XX-XXXX.26:

1. Texas Notification of Personal Liability for Fraudulent Tax Evasion;

2. Audit Exam, including correspondence and e-mail communications from the
Revenue Accounting Division; the Calculated Message, Adjustment, and
Allocation Reports; Tax Summary, Status, Balance, Audit, and Tax Allocation
Basis Inquiries; and Personal Liability Fraudulent Tax Evasion Worksheet;

3. Sales and use tax returns for report periods April 2007, May 2008,
December 2008, February 2008, and January 2009; and

4. State Filings: Statement of Change of Registered Office/Agent, dated
May 5, 2006; and Texas Franchise Tax Public Information Reports signed
May 10, 2006, March 13, 2008, and February 26, 2009.

Staff attached to its Response to Petitioner's Post-Hearing Brief the following exhibits:

6. Copy of Memorandum Opinion issued in Sanadco, Inc. v. Comptroller of Pub.
Accounts, No. 03-11-00462-CV, 2013 Tex. App. LEXIS 12013 (Tex. App.-
Austin September 26, 2013, no pet. h.); and

7. Appellee's Motion for Rehearing and Reconsideration en bane filed in
Sanadco, Inc.

Petitioner SI produced during the hearing its responses to Staff s Second Set of
Interrogatories, Requests for Admissions, and Requests for Production. Petitioner did not
offer any other evidence during the hearing, but did attach to its Post-Hearing Brief the
following exhibits:

1. The Examination performed by the Comptroller's Business Activity Research
Team (BART) for the exam period January 1, 2008, through March 31, 2009,
including, the Accounts Examiner Coversheet; correspondence and e-mail
communications from BART; the Texas Notification of Exam Results; the
Message, Adjustment, and Allocation Reports; Petitioner's Alcohol and Tobacco
Purchases for January 2008 through March 2009; and ITS Work Manager
Comments;

2. Plaintiff's Original Petition, Sanadco, Inc., 2013 Tex. App. LEXIS 12013;

3
 verification through this same method. Additional taxes will not be assessed
nor any refunds/credits will be allowed because this method differs from the
amount that would have been paid under any other reporting method; and

Commingled Receipts Method (Method E) (Tax Code § 151.416)
Tax collected is commingled with the receipts from the sales of both
taxable and nontaxable items.
This method is available to grocers who establish an accounting system
in which sales tax collected is commingled with the receipts from the sale of
taxable items. Method E establishes a method of backing out the tax from the
gross sales.
An examination of the records of a taxpayer using this method will
include:
 A verification of gross sales;
 Verification that tax is included in gross sales;
 Confirmation that the taxable or nontaxable sales are accurate through
use of one of the other special reporting methods; and
 Confirmation of the mathematical accuracy of computations.

NOTE: Under the current definition of a retail grocer, most convenience stores
and many grocers do not qualify. However, the Comptroller still allows them
to use this method.
(Comptroller Audit Manual, Grocery Stores Ch. 4, Rev. Sept. 2004.)1

If a taxpayer is reporting under one of these methods and qualifies for the use

of the method, the audit procedure was to verify returns and computations based on

1
The 2004 version is no longer available on the Comptroller’s website. A copy of the 2004 Manual
is attached as Exhibit A. The comptroller revised this manual in February 2013, and again in
September 2014, found at http://www.window.state.tx.us/taxinfo/audit/grocery/grocery.pdf. A
manual specifically for convenience store audits was added in September 2014 found at
http://www.window.state.tx.us/taxinfo/audit/convenience/convenience.pdf

ACCELERATED APPEAL, SANADCO, ET AL 12
the method being used. See Id. These statutory references and administrative

regulations are currently in effect.

Amended Auditing Procedures

AP92 Amendments

On August 17, 2004, the Comptroller responded to “concern about the lack of

uniformity in estimated convenience store audits” by issuing a memorandum

directed to “All Audit Personnel”, implementing new comprehensive policies and

procedures for convenience store audits entitled Audit Policy 92 (AP92). The

subject of the memo was “Alternative Audit Methods, Mark-up Percentages &

Product Mix Percentages for Convenience Store Audits.” Mark-up and product-mix

percentages were developed utilizing data from the Texas Petroleum Marketers and

Convenience Store Association (TPCA), Robert Morris & Associates Annual

Financial Statements (RMA), and National Association of Convenience Stores

(NACS). These mark-up percentages and product mix percentages were used when

necessitated by lack of reliable records.

The Comptroller instituted two methods by which to perform an audit in cases

where records were determined to be unavailable, inadequate or unreliable:

1. Mark-up method:
Purchase information is obtained from the taxpayer and/or vendors. A
mark-up is established by performing a shelf test. The resulting mark-up is

ACCELERATED APPEAL, SANADCO, ET AL 13
 applied to the purchase information received from the taxpayer and/or third
party vendors.

2. Average taxable sales method:
This method was only to be used when purchase invoices for all
categories of purchases could not be obtained from the vendor. For example,
beer invoices are obtainable; no other purchase invoices are available; taxable
sales should be estimated using the appropriate percentage(s) from the
attachment. (Note: The auditor should always request and utilize actual
taxpayer purchase invoices to determine specific product categories if the
taxpayer records are reliable).”

The memo directed all auditors, inter alia, to conduct shelf tests during

convenience store audits if the taxpayer were still in business, and use the

percentages designated in the memo as the mark-up for beer and tobacco products if

store records were unavailable, inadequate, or unreliable, and if the actual mark-up

percentage could not be ascertained by other means. The auditors were instructed

that if they did not use the mark-up method, to document why this method was not

used.

Effective September 1, 2007, the Texas Legislature enacted legislation

directing each wholesaler or distributor of beer, wine, malt liquor or tobacco

products to file a report with the Comptroller detailing the monthly net sales made

to the retailer by the wholesaler or distributor, including the quantity and units of

beer, wine, malt liquor and tobacco products sold to the retailer. See (Tex. Tax Code

ACCELERATED APPEAL, SANADCO, ET AL 14
§ 151.433 (b) (4) and Tex. Tax Code § 155.105. The data provided is commonly

referred to as HB 11 data, but no directives authorizing or implementing its use in

tax audits was included in the legislation. The first reports became available on

January 1, 2008.

AP122 Amendments

The Comptroller then amended AP92 with AP122 effective July 22, 2009,

again directed to “All Audit Personnel” entitled “Guidelines for Convenience Store

Audits.” It revised the audit procedures and determination of mark-up percentages

and incorporated HB11 data, directing that this data must be the starting point for all

convenience store audits whether used as internal control verification or as data used

to estimate the audit.

It instructed the auditors to use HB 11 data, available taxpayer records and

third party records to produce the most accurate audit results. All of these records

were required to be compared to each other for accuracy and consistency in

purchasing patterns. It mandated that the product mix of each convenience store be

considered, and industry averages were to be used in the absence of these records.

For periods prior to January 1, 2008 when HB 11 data was unavailable, estimated

taxable sales were based on the average taxable sales for the periods when records

became available.

ACCELERATED APPEAL, SANADCO, ET AL 15
 EXHIBIT C

SANADCO ORDER DENYING MTN FOR REHEARING
 II. REASONS FOR DECISION

A. Evidence

In addition to the pleadings filed by the parties while the case was pending before the
Comptroller, Staff presented the following exhibits:

1. 60-Day Notification Letter;
2. Texas Notification of Audit Results;
3. Penalty and interest waiver worksheet;
4. Audit Report; and
5. Audit Plan (including the Referral for Additional Penalty).

Petitioner submitted the following exhibits:

1. Order for Continuance and Abating Case, D-1-GV-13-000433 (126th District Court,
Travis County);
2. Order addressing Plea to the Jurisdiction, D-1-GV-13-000754 (200th District Court,
Travis County); and
3. State Officials' Motion for Protection and to Stay All Discovery, D-1-GN-13-004352
(200th District Court, Travis County).

The exhibits were admitted into the record without objection.

B. Staff Agreed Adjustments

Staff did not agree to make any adjustments to the audit.

C. Facts Established by the Evidence

Petitioner owns and operates a convenience store in San Antonio, Texas. The store
sells beer, tobacco products, and other items commonly found in convenience stores.
Mr. Shafeeq Khimani is Petitioner's president. Staff conducted an audit to verify
Petitioner's compliance with Texas sales and use tax laws in the audit period May 1, 2008
through December 31, 2011.

2
 Plaintiff, BROADWAY GROCERY INC., is engaged in a contested case

proceeding before SOAH regarding an alleged sales and use tax deficiency in Docket

Number XXX-XX-XXXX.26, TCPA HRG No. 109,293, and timely filed a Request for

Redetermination on July 30, 2012. SOAH held a hearing on August 1, 2014, and the

Comptroller rendered her decision on October 31, 2014 (Exhibit D). The timely

motion for rehearing was denied on December 2, 2014 (Exhibit E), thus exhausting

the administrative remedies. Plaintiff had previously joined in the request for judicial

review and declaratory judgment on March 13, 2014 in Cause No. D-1-GN-13-

004352 (CR, p. 266), thereby filing its timely request for judicial review. Id.

Plaintiff, SHARIZ, INC. is engaged in a contested case proceeding before SOAH

regarding an alleged sales and use tax deficiency in TCPA HRG No. 108,636 but,

on motion by the Tax Division (Exhibit F), the Comptroller dismissed Plaintiff’s

cause without a hearing for lack of prosecution on September 5, 2014. (Exhibit G).

Plaintiff’s timely motion for rehearing was filed on September 25, 2014 and denied

by the Comptroller on October 9, 2014 (Exhibit H), thereby exhausting its

administrative remedies. Plaintiff had previously joined in the request for judicial

review and declaratory judgment on March 13, 2014 in Cause No. D-1-GN-13-

004352 (CR, p. 266), thereby filing its timely request for judicial review. Id.

ACCELERATED APPEAL, SANADCO, ET AL 18
11. Using the vendor data for purchases of beer, tobacco, and soda, and Petitioner's invoices
for purchases of candy and general merchandise, the auditor calculated a product-mix
ratio for beer and tobacco sales to all taxable sales (74.4490%).

12. Taxable sales were estimated by dividing estimated beer and tobacco sales by the
calculated product mix.

13. Petitioner was allowed 5% for spillage and undocumented losses, and allowances were
also applied for food stamp sales in the months where records were available (August
2010 through the end of the audit period). Credit for reported taxable sales was then
applied in computing the additional taxable sales for the audit period.

14. On July 17, 2012, Staff issued Petitioner a Texas Notification of Audit Results assessing
tax, a 10% late penalty, an additional 50% penalty, and interest accrued to the account.

15. The overall audit error rate was 34.99%.

16. Petitioner requested redetermination.

17. The vendor reported data utilized within the audit is frequently referred to as "HB 11
data." The reference relates to the fact that statutes that require vendors to report the data
to the Comptroller were enacted as part of Tex. House Bill 11, 80th Leg., R. S., 2007.

18. Prior to the passage of HB 11, Staff issued a memorandum titled Audit Policy 92 (AP
92), which provided guidance to auditors in performing convenience store audits.

19. After HB 11 was enacted Staff issued another memo to update the procedures. It was
entitled Audit Policy 122 (AP 122). The new memo requires auditors to use HB 11data
information.

20. AP 92 and AP 122 were recently reviewed by the Austin Third Court of Appeals. See
Sanadco, Inc. v. Office of the Comptroller of Public Accounts, 03-11-00462-CV, 2013
Tex. App. LEXIS 12013 (Tex. App.-Austin Sept. 26, 2013, no pet. h.).

21. In Sanadco, the taxpayer asserted (among other things) that AP 92 and AP 122 were
administrative rules that were not promulgated in compliance with the requirements of
the Administrative Procedures Act. The Comptroller argued that the memos are simply
statements regarding the internal management of the agency and that they do not impose
any duties or requirements on convenience-store owners. The court held that "the
directives in AP 92 and AP 122 are in fact rules," and for that reason "we must also
conclude that the district court had jurisdiction" over the claim.

22. On October 3, 2013, the Comptroller filed a Motion for Rehearing and Reconsideration
in Sanadco.

8
 The Comptroller’s Decision was not issued until August 8, 2014, and would not

become final until September 2, 2014. Payment would therefore become due on

September 22, 2014 unless a motion for rehearing was filed, but the Comptroller

initiated enforcement proceedings against Mahmoud Isba on June 17, 2014 when

they demanded a bond in the amount of $9,000.00 for his failure to post a previously

unrequested bond. (Exhibit M).

Isba’s timely motion for rehearing, filed on September 1, 2014 was denied on

September 16, 2014 (Exhibit L), and payment became due on October 4, 2014. Isba,

however, filed a timely petition for judicial review and declaratory judgment by

joining Cause No. D-1-GN-13-004352 on October 17, 2014. (Exhibit N).

Having paid the prior tax assessment in full (Exhibit O), and perfected his appeal

to district court, Isba refused to post the bond. As a result, his sales tax permit was

cancelled on December 3, 2014 after a hearing in which the Comptroller was advised

that he had already paid off the prior assessment and that the most recent assessment

was currently on appeal in district court. (Exhibit P).

On December 5, 2014, the Comptroller seized $56.00 in cash and Isba’s credit

card machine and valued it at $0.00. He was also notified that his property and

inventory would be seized and that he owed a total of $78,025.36 in delinquent taxes,

ACCELERATED APPEAL, SANADCO, ET AL 20
Bank of America account, and that $10,011.40 was paid to the Comptroller on that

date. (Exhibit T). The Comptroller never notified Plaintiff of these transactions.

Shariz, Inc.

On or about January 28, 2015, the Comptroller left a “Notice of Official

Visit” demanding that Shariz, Inc. contact them no later than January 30, 2015.

(Exhibit U).

The Comptroller conducted each of these collection attempts while the

plaintiffs’ petitions for judicial review and declaratory judgments remained pending

and no final judgments had been entered.

On August 6, 2014, Plaintiffs filed their application for temporary injunctions

to enjoin the Comptroller from continuing these premature collection efforts, and the

trial court denied the application on November 13, 2014, from which this accelerated

appeal ensued.

ACCELERATED APPEAL, SANADCO, ET AL 22
 SUMMARY OF ARGUMENTS

Plaintiffs are convenience store owners engaged in administrative

proceedings following sales and use tax audits conducted by the Comptroller of

Public Accounts and the timely filing of requests for redetermination hearings before

SOAH. They timely filed petitions for judicial review of the Comptroller’s adverse

decisions, and declaratory judgment actions pursuant to Tex. Gov’t Code Ann. §

2001.038 to determine the validity of the audits. Despite the pendency of these

petitions, the Comptroller has engaged in enforcement activities to coerce payment

of the alleged sales and use tax deficiencies, including suspension of their sales and

use tax permits, freezing and levying on financial accounts, confiscation of business

assets and inventory, and forced closure of the businesses. Plaintiffs assert that these

collection efforts are premature because they are not supported by final judgments.

They first contend that the audits supporting the judgments are invalid and

unenforceable because the comptroller failed to adopt the auditing procedures in

accordance with the Administrative Procedure Act (APA). A rule is invalid and

unenforceable unless it is promulgated and adopted in accordance with the

requirements of the APA. Tex. Gov’t. Code Ann. §§ 2001.035, 2001.004 and

2001.005. The comptroller failed to comply with the adoption procedures as

ACCELERATED APPEAL, SANADCO, ET AL 23
29. Plaintiffs seek to void the underlying audit, alleging that the auditor acted
fraudulently by his unauthorized use of AP 92 and AP 122 as well as HB 11 despite
the recent Third Court of Appeals opinion that these documents were “invalid
rules” and therefore void and unenforceable because they were not formally
adopted pursuant to the mandatory provisions of the Administrative Procedures
Act. See, Sanadco, Inc. v. Comptroller of Public Accounts, 03-11-00462 (Tex. App. –
Austin 2013); LEXIS 12013 at *13 (Tex. App.—Austin Sept 26, 2013).

30. Plaintiffs also seek to void the underlying audit, alleging that the
Comptroller engaged in ultra vires conduct by failing to perform the purely
ministerial act of promulgating AP 92 and AP 122 as administrative rules, and
subsequently acting without legal authority by implementing the illegal and
unauthorized memos as agency policy and procedure.

31. Plaintiffs further seek to void all instances in which the Comptroller
imposed the additional 50% fraud penalty upon the mere finding of
“underreporting” instead of the statutorily required finding of fraud or willful
intent to evade the tax. In doing so, the Comptroller has engaged in conduct in
excess of her statutory authority by substantially reducing her burden of proof and
shifting that burden to the taxpayer by requiring him to prove that his conduct was
not willful or intentional. Plaintiffs allege that this is ultra vires conduct and is
outside the Comptroller’s statutory authority.

32. SOAH has acknowledged that the foregoing issues are beyond the
jurisdictional authority of the Administrative Law Judge and have therefore
refused to address them within the parameters of a contested case proceeding. See,
Comptroller’s Decision No. 106,516 (2013) (The ALJ does not have jurisdiction to
consider whether Audit Policy Memorandums 92 and 122 constitute rules as
defined by the Administrative Procedure Act.); Comptroller’s Decision No. 106,516
(2013) (Petitioner also contends the 50% additional penalty should be deleted
because the statute authorizing the additional penalties is unconstitutional and
because there was no intent to evade the tax. However, it is well settled that
neither the Comptroller nor the ALJ has jurisdiction to consider the validity or
constitutionality of a statute.); See also, Comptroller’s Decision Nos. 103,683,
103,961(2011), 104,445, 105,726 (2012).

Page 7 of 26
 sales journals or Z-tapes. See SOAH Docket No. XXX-XX-XXXX.26; Hearing No.
104,037.

68. A court will find a rule unconstitutionally vague, in violation of due process,
if it does not give fair notice of what conduct may be punished, and invites
arbitrary and discriminatory enforcement by its lack of guidance for those charged
with its enforcement. U.S.C.A. Const. Amend. 14. Vista Healthcare V. Texas, 03-09-
00178-CV (Tex.App.-Austin 8-26-2010). This statute fails to establish guidelines
for its application and does not give fair notice to the taxpayer of the prohibited
conduct, lending itself to discriminatory enforcement. It is therefore
unconstitutionally vague and must be stricken.

69. Plaintiffs seek a declaratory judgment against the Office of the Comptroller
of Public Accounts, Susan Combs, in her official capacity as Comptroller of Public
Accounts for the State of Texas and Gregg Abbott, in his official capacity as the
Attorney General for the State of Texas, pursuant to the Uniform Declaratory
Judgments Act, Tex. Civ. Prac. & Rem. Code ANN. § 37.004 et seq., construing Tex.
Tax Code § 111.0042, declaring that this statute is unconstitutional on its face and
as applied to Plaintiffs because it is, by its nature, a denial of substantive and
procedural due process and is constitutionally vague because it permits the audit
to be made merely on undefined subjective criteria, and without providing any
guidelines for the administration thereof.

COMPLAINT VII

Tex. Tax Code §111.022, authorizing a Jeopardy Determination without guidelines,
is Unconstitutional on its face and as applied.

70. Plaintiffs incorporate the preceding paragraphs by reference as if the same
were set forth fully and verbatim herein.

71. Tex. Tax Code § 111.022 authorizes the Comptroller to impose an
additional 10% jeopardy determination penalty against a deficiency
determination, which comes due immediately, if she “believes” that the collection
of a tax required to be paid to the state or the amount due for a tax period is
jeopardized by delay.

72. The statute is purely discretionary because it establishes no parameters by
which the Comptroller is to make this determination except for her undefined

Page 15 of 26
 adopted in accordance with the Administrative Procedure Act and
were invalid and unenforceable.

The Comptroller’s memos implementing Audit Policy Memoranda 92 and 122

(AP 92 and AP 122) effective August 17, 2004, and July 22, 2009 respectively, are

agency rules as defined by Gov’t Code § 2001.003 (6). See, Sanadco, Inc. v. Office

of Comptroller of Public Accounts of Texas, No. 03-10-00462-CV, 2013 Tex. App.

LEXIS 12013 at * 13 (Tex. App.—Austin Sept. 26, 2013)3. The use of these rules

or their threatened application interfere with or impair, or threaten to interfere with

or impair, a legal right or privilege of the Plaintiffs in that they subject them to

potential loss of his business, his license, illegal tax assessments and subjecting his

property to liens and potentially to forcible sale.

AP 92, AP 122 and HB 11 constitute agency rules as defined by the

Administrative Procedures Act (APA). They are statements of general applicability

relating to all convenience store audits; that implemented agency policy to add

uniformity to the audits; and described the procedure or practice requirements of the

3
In Sanadco, this court held that AP92, AP122 and HB11 were rules under the Administrative
Procedure Act, and remanded the case to the trial court for further proceedings. On Rehearing, the
court withdrew its opinion on other grounds, finding that the trial court was without jurisdiction
over Sanadco’s claims because it had not exhausted its administrative remedies. The court,
however, did not revisit its holding regarding the validity of the rule. The case is now pending
filing of a Further Motion for Rehearing by the Appellants, Sanadco, Inc.
ACCELERATED APPEAL, SANADCO, ET AL 26
agency by implementing the use of HB 11 and the percentages for mark-ups and

product mixes incorporated in AP 92 and AP 122.

ACCELERATED APPEAL, SANADCO, ET AL 27
 A. The Memoranda are Rules as Defined by the APA.

To establish entitlement to a declaratory judgment pursuant to Gov’t Code §

2001.038, the challenged procedure or document must be a rule as defined by the

Administrative Procedure Act (APA). Gov’t Code § 2001.003(6). The jurisdictional

inquiry concerns whether the Comptroller's memos constitute rules under the

APA and, if so, whether that rule or its threatened application interferes with or

impairs Plaintiffs’ legal rights or privileges. Combs v. Entertainment Publ'ns, Inc.,

292 S.W.3d at 720. It is undisputed that neither AP92 or AP122 were promulgated

pursuant to APA requirements, and Appellants assert that AP92, AP122 and HB 11

are each rules meeting the requirements of Gov’t Code § 2001.003 (6), but are

invalid because they were not promulgated in accordance with the requirements of

Gov’t Code §§ 2001.023-.037. The dispositive issue is therefore whether these

memoranda are rules as defined by the APA.

Section 2001.003 (6) of the APA defines a rule as:

(A) a state agency statement of general applicability that:
(i) implements, interprets, or prescribes law or policy; or
(ii) describes the procedure or practice requirements of a state agency;
(B) includes the amendment or repeal of a prior rule; and
(C) does not include a statement regarding only the internal
management or organization of a state agency and not affecting private rights
or procedures.
Gov’t Code § 2001.003(6)

ACCELERATED APPEAL, SANADCO, ET AL 28
General Applicability

These mandatory procedures are clearly intended to apply, and are applied to

all convenience stores across the state, and therefore unquestionably meet the criteria

of “general applicability.” See Texas Alcoholic Beverage Comm'n v. Amusement &

Music Operators of Tex., Inc., 997 S.W.2d 651, 660 (Tex.App.-Austin 1999, pet.

dism'd w.o.j.) (holding that statements contained in agency memoranda were rules

because they imposed binding instructions affecting private rights of all similarly

situated persons). Although the directives bind agency auditors to apply these

procedures, it is not directed only" to "the internal management or organization of a

state agency." Id.; See APA § 2001.003(6)(c). Rather, it imposes the Comptroller's

prospective, blanket application of these procedures, affecting the private rights of

convenience store owners throughout the state. Id; Combs v. Entertainment

Publ'ns, Inc, 292 S.W.3d 712, 721-22 (Tex.App.-Austin 2009, no pet) (construing

agency letters as "rules" because they were not directed "only" to "the internal

management or organization of a state agency," but expressed an intent to apply this

interpretation to all brochure-fundraising firms). Compare with Beacon Nat'l Ins.

Co. v. Montemayor, 86 S.W.3d 260, 269 (Tex.App.-Austin 2002, no pet.) (declining

to view agency correspondence as stating rule when policy was directed only at

plaintiff and did not implicate rights of any party other than plaintiff).

ACCELERATED APPEAL, SANADCO, ET AL 29
Implement and Describe Agency Procedures

The memoranda also satisfy the literal requirements of the APA definition. They

are clearly an agency statement. They implement and describe the Comptroller’s

auditing procedures or practice requirements in great detail requiring specific

methodology for each phase of the audit. It provides alternative procedures in the

event of insufficient record keeping by the taxpayer and supplies a previously non-

existent source for calculating mark-up percentages and product mixes, mandating

their use. Further, it supplies a new source of information to document the purchase

of beer and cigarettes from the wholesalers pursuant to HB 11, insisting that this

information be the starting point for each audit. Moreover, they do not constitute

statements regarding only the internal management or organization of the

Commission because they adversely affect each convenience store owners’ private

rights to equitable audits.

There are no requirements about which there can be any bona fide disagreement.

AP122 specifically clarifies that “it only updates our procedures,”; the language is

mandatory--(“the following guidelines must be used”; “a shelf test must be

conducted”; “HB 11 data must be the starting point for convenience store audits”),

and the “AP” designation in the memos refer to “Audit Policy” memos which clearly

prescribe procedure requirements for the agency for statewide application. To argue

ACCELERATED APPEAL, SANADCO, ET AL 30
that these memos are not a statement of the agency’s policy, of general applicability,

which describe its procedures and practice requirements, and constitute an

amendment to a prior rule for the conduct of convenience store audits, is at best

fallacious.

Amended or Repealed Rule 3.328

Prior to AP92 there were no policies or procedures directed specifically at the

conduct of convenience store audits. At best, auditors could refer to the provisions

of 34 Tex. Admin. Code § 3.328 entitled “Optional Reporting Methods for Grocers

and Other Vendors” which provided several alternatives by which grocery and

convenience stores could determine tax liability, but provided little or no guidance

in performing audits of these enterprises. Following the implementation of AP92,

this administrative rule was completely abandoned although the statutory and

regulatory provisions remain unchanged. Thus, AP92 and AP122 are, at minimum,

amendments to that rule, and AP122 amends AP92 and therefore meet the

requirements as an amendment or repeal of a prior rule as set forth in Gov’t Code §

2001.003 (6) (B).

AP92 may either be considered the implementation of new auditing procedures

specifically directed at convenience stores, or as an amendment to Rule 3.328. Either

way, it concisely fits the parameters of the statute. AP122 is unquestionably an

ACCELERATED APPEAL, SANADCO, ET AL 31
amendment to AP92 because the Comptroller designates it as such (“This does not

replace AP92; it only updates our procedures to fully utilize data available to us”).

B. The Audits are Invalid and the Court May Render
Judgment

A rule is invalid and unenforceable unless it is promulgated and adopted in

accordance with the requirements of the APA. Tex. Gov’t. Code Ann. §§ 2001.035,4

2001.0045 and 2001.0056. The comptroller never adopted AP 92 nor AP 122 as

mandated by the APA and are therefore invalid and unenforceable when applied to

4
§ 2001.035. Substantial Compliance Requirement; Time Limit on Procedural Challenge
(a) A rule is voidable unless a state agency adopts it in substantial compliance with Sections
2001.0225 through 2001.034.
5
§ 2001.004 Requirement to Adopt Rules of Practice and Index Rules, Orders, and Decisions
In addition to other requirements under law, a state agency shall:
(1) adopt rules of practice stating the nature and requirements of all available formal and informal
procedures;
(2) index, cross-index to statute, and make available for public inspection all rules and other written
statements of policy or interpretations that are prepared, adopted, or used by the agency in
discharging its functions; and
(3) index, cross-index to statute, and make available for public inspection all final orders,
decisions, and opinions.
6
§ 2001.005 Rule, Order, or Decision Not Effective Until Indexed
(a) A state agency rule, order, or decision made or issued on or after January 1, 1976, is not valid
or effective against a person or party, and may not be invoked by an agency, until the agency has
indexed the rule, order, or decision and made it available for public inspection as required by this
chapter.
(b) This section does not apply in favor of a person or party that has actual knowledge of the
rule, order, or decision.
ACCELERATED APPEAL, SANADCO, ET AL 32
convenience store audits. In the absence of enforceable audits, there is nothing upon

which to base the enforcement activities.

It is uncontroverted that the procedures mandated by the memoranda were

applied in all of the audits performed on the convenience stores or that they were

implemented without compliance with the appropriate APA procedures.

Accordingly, the Court may enter an order reversing the trial court’s order denying

the temporary injunction, and render judgment prohibiting the Comptroller from

further enforcement activities or use of these procedures in future audits until they

have complied with the APA requirements. See El Paso Hosp. Dist. v. Texas Health

& Human Servs. Comm'n, 247 S.W.3d 709, 715 (Tex. 2008). The court should

further render judgment that all audits performed pursuant to the procedures

mandated by AP92 and AP122, including the use of HB 11 data, are invalid pursuant

to Gov't Code § 2001.035, Gov’t Code § 2001.004 and Gov’t Code § 2001.005,

and prohibit enforcement of the resulting tax liabilities, including all taxes,

penalties and interest.

II. The trial court abused its discretion by refusing to enjoin the
enforcement of the administrative judgments because the petitions
for judicial review nullified the judgments.

ACCELERATED APPEAL, SANADCO, ET AL 33
 The Comptroller sought illegal enforcement of the taxpayers’ alleged sales tax

liabilities while the administrative redetermination was pending judicial review.

Relators assert that the Comptroller’s decisions could not become final until those

proceedings had run their course, and the Comptroller exceeded his statutory

authority by his attempts to enforce the orders before they became final.

A. The Petitions for Review were Timely Filed

The Administrative Procedure Act (APA) authorizes a person who has

exhausted his administrative remedies to request judicial review if he is aggrieved

by a final decision in a contested case. Tex. Gov’t Code Ann. § 2001.171. The

petition seeking judicial review, filed before Relators had exhausted their

administrative remedies, became timely after the administrative remedies were

finally exhausted. These prematurely filed appeals ripened upon exhaustion of the

administrative remedies. See, e.g., Subaru of Am., Inc. v. David McDavid Nissan,

Inc., 84 S.W.3d 212, 227-28 (Tex. 2002) (op. on reh'g) (where judicial review is

requested prematurely for claims over which the trial court could exercise partial

jurisdiction, the court may abate proceedings and await exhaustion of the

administrative claims.). Marble Falls v. Scott, 275 S.W.3d 558, 566 (Tex.App. [3rd]

2008).

ACCELERATED APPEAL, SANADCO, ET AL 34
 Where, as here, the appealing parties bring claims over which a trial court has

jurisdiction, in addition to seeking judicial review of an administrative decision, the

court may abate the claims to allow an opportunity to cure. See, e.g., Subaru of Am.,

Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 227-28 (Tex. 2002) (op.on

reh'g). Consequently, upon the filing of the petition for declaratory judgment

pursuant to Tex. Gov’t Code Ann. § 2001.038, the trial court assumed jurisdiction

of the statutory claims alleged in the petition. Moreover, it has the authority to

exercise jurisdiction over those claims, and the proceedings must be abated pending

exhaustion of remedies. When exhaustion occurred, the prematurely filed petitions

for judicial review became ripe.

B. The Comptroller’s Decision Has Been Nullified

The Administrative Procedure Act (APA) provides that when "the manner of

review authorized by law for the decision in a contested case … is by trial de novo,

the reviewing court shall try each issue of fact and law … as though there had not

been an intervening agency action or decision." Tex. Gov't Code Ann. § 2001.173

(a) (West 2000). A de novo hearing has been defined as "a new and independent

action in which the whole case is gone into as if no trial whatever had been had in

the court below." Trial de novo is not an "appeal", but is a new and independent

ACCELERATED APPEAL, SANADCO, ET AL 35
action. Key Western Life Ins. Co. v. State Bd. of Ins., 350 S.W.2d 839, 846 (Tex.

1961).

Appellants’ petition for judicial review pursuant to Tex. Gov’t Code Ann. §

2001.173 and Tex. Gov’t Code § 2001.174 is for a de novo hearing to determine the

validity of the deficiency assessments sought to be collected by the Comptroller in

the contested proceeding. More importantly, because the only question before the

District Court concerns a matter of statutory construction, the review of the court's

construction of the relevant statutes is de novo. See City of San Antonio v. City of

Boerne, 111 S.W.3d 22, 25 (Tex. 2003). When the only issue under review involves

a pure question of law, the standard of review is de novo. In re Humphreys, 880

S.W.2d 402, 404 (Tex. 1994); City of Pasadena v. Gennedy, 125 S.W.3d 687, 691

(Tex. App.-Houston [1st Dist.] 2003, pet. denied); Doan v. Christus Health ArkLa-

Tex, 329 S.W.3d 907, 910 (Tex.App.-Texarkana 2010, no pet.).

Further, in suits filed pursuant to Tex. Tax Code Ann. §111.010, officers and

directors are entitled to a full and complete hearing on their tax liability in district

court. See Tex. Tax Code Ann. § 111.010 (West 2008) (authorizing attorney general

to file suit to recover taxes). The case is tried de novo. Greene v. State, 324 S.W.3d

276, 288 (Tex.App.- Austin 2010, no pet.) (111.010 allows for a de novo review of

the party's tax liability), Herrera v. State, No. 03-01-00101-CV, 2002 WL 185476,

ACCELERATED APPEAL, SANADCO, ET AL 36
at *1 n. 4, 2002 Tex.App..-Austin Feb. 7, 2002, no pet.) (not designated for

publication) (identifying suit under section 111.010 as "de novo action by the State

to collect delinquent tax").

The sine qua non of a de novo trial is the nullification of the judgment of the

first tribunal and a retrial of the issues on which the judgment or order was founded.

When jurisdiction of the second tribunal attaches, the judgment of the first tribunal

is not merely suspended, but nullified. Texas Dept. of Public Safety v. Banks Transp.

Co., 427 S.W.2d 593, (Tex. Sup. 1968); Southern Canal Co. v. State Bd. of Water

Engineers, 318 S.W.2d 619; 159 Tex. 227 (Tex. 1958). Accordingly, “res judicata”

and “final judgment” are inapplicable in de novo proceedings because the original

administrative order that is the subject of appeal is nullified in a de novo proceeding.

State Bd. of Ins. v. Republic Nat'l Ins. Co., 384 S.W.2d 369, 372 (Tex.Civ.App. —

Austin 1964, writ ref'd n.r.e.).

Consequently, the filing of the petition for review nullified the administrative

judgment, leaving nothing for the Comptroller to enforce pending entry of a final

judgment in the petition for review, and such enforcement activity was illegal and

premature. In the absence of a final judgment in the redetermination hearing, no tax

has yet been imposed and no tax is “due and payable” upon which a delinquency

may be predicated.

ACCELERATED APPEAL, SANADCO, ET AL 37
 A void order has no force or effect and confers no right; it is a nullity. See

In re Garza,, 126 S.W.3d 268, 271 (Tex. App.-San Antonio 2003, orig.

proceeding). Where the trial court (in this case the administrative judge) did

not have jurisdiction to render a judgment, the proper practice is for the

reviewing court to set the judgment aside and dismiss the cause. Fulton v.

Finch, 162 Tex. 351, 356, 346 S.W.2d 823, 827 (1961) (orig. proceeding) (If the

trial court lacks jurisdiction, the appellate court only has jurisdiction to set

the judgment aside and dismiss the cause.); Crane v. Richardson Bike Mart,

Inc., 295 S.W.3d 1, 5 (Tex. App.-El Paso 2009, no pet.).

Accordingly, the collection activity is void and the comptroller should

dismiss the underlying administrative judgment and reimburse Appellants for the

illegally collected funds, and the results of said activity should be nullified. State v.

Crawford, 262 S.W.3d 532, 546 (Tex.App.-Austin 2008, no pet.).

ACCELERATED APPEAL, SANADCO, ET AL 38
 III. The trial court abused its discretion by refusing to enjoin the
comptroller’s enforcement activity because the petition for
declaratory judgment entitled Appellants to a final declaration of
a rule's validity before the rule is applied.

Appellants filed a declaratory judgment action pursuant to Tex. Gov’t Code §

2001.038, alleging the invalidity of agency rules. Gov’t Code § 2001.038 represents

an express legislative grant of subject-matter jurisdiction, so that valid claims raised

pursuant to that provision are not barred by sovereign immunity. See Id; El Paso

Hosp. Dist. v. Texas Health & Human Servs. Comm'n, 247 S.W.3d 709, 713 (Tex.

2008); Tex. Dep't of Protective and Regulatory Servs. v. Mega Child Care, Inc., 145

S.W.3d 170, 191-192 (Tex 2004).

Declaratory-judgment actions are intended to determine the rights of parties

when a controversy has arisen, before any wrong has actually been committed, and

are preventative in nature. Montemayor v. City of San Antonio Fire Dept., 985

S.W.2d 549, 551 (Tex.App.-San Antonio 1998, pet. denied). A person seeking a

declaratory judgment need not have incurred actual injury. City of Waco V. Texas

Natural Resource Conservation Commission, 83 S.W.3d 169, 175 (Tex.App.-Austin

2002); Texas Dept. of Banking v. Mount Olivet Cemetery Ass'n, 27 S.W.3d 276, 282

(Tex.App.-Austin 2000, pet. denied). Courts have also issued declaratory judgments

construing a statute before the statute is violated. See The Pea Picker, Inc. v. Reagan,

ACCELERATED APPEAL, SANADCO, ET AL 39
632 S.W.2d 674, 677 (Tex.App.-Tyler 1982, writ ref'd n.r.e.) (trial court had power

to construe Open Meetings Act and determine whether notice must be given and

when meeting is required to be open).

A rule may be challenged, "If it is alleged that the rule, or its threatened

application, interferes with or impairs, or threatens to interfere with or impair, the

legal rights or privileges of the plaintiff." This language makes it clear that the

purpose of this statute is to obtain a final declaration of a rule's validity before the

rule is applied. See Shannon and Ewbank, The Texas Administrative Procedure and

Texas Register Act Since 1976 — Selected Problems, 33 Baylor L.Rev. 393, 424

(1981).

Appellants pleaded that the rules in question impair or threaten to impair its

legal rights. Having complied with the statute's condition, Appellants were entitled

to a declaratory judgment regarding the rules' validity before the rule’s application.

Rutherford Oil v. Land Office of Texas, 776 S.W.2d 232, 235 (Tex.App.-Austin

1989). Accordingly, the trial court abused its discretion by refusing to enjoin the

comptroller from engaging in enforcement activities before an adjudication of the

validity of the rule.

ACCELERATED APPEAL, SANADCO, ET AL 40
 PRAYER FOR RELIEF

WHEREFORE PREMISES CONSIDERED, Appellants pray that this

Court will reverse the trial court’s order denying the temporary restraining order

and render judgment that the audits were invalid, and unenforceable, and order the

comptroller to cease its enforcement efforts and reimburse all funds and property

collected from the Appellants. In the alternative, Appellants pray the court to

reverse the judgment of the trial court and remand it for further

proceedings. Appellants pray for such other and further relief in law and in

equity to which they may show themselves entitled.

Respectfully submitted,

Law Office of
Samuel T. Jackson
PO Box 170633
Arlington, TX 76003-0633
Tel: (512) 692-6260
Fax. 866-722-9685
ATTORNEY FOR
APPELLANTS

By: /s/ Samuel T. Jackson
Samuel T. Jackson
Texas Bar No. 10495700

ACCELERATED APPEAL, SANADCO, ET AL 41
 CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), because it contains 6,063 words,
excluding any parts exempted by Tex. R. App. P. 9.4(i)(1), as counted by the
computer program used to prepare this document.

CERTIFICATE OF SERVICE
I hereby certify by my signature above that a true and correct copy of the
above and foregoing instrument was served on the parties or their attorneys via
facsimile, certified mail, return receipt requested, and/or hand delivery on April
16, 2015 in accordance with the Texas Rules of Appellate Procedure, to the
following:

JACK HOHENGARTEN
Assistant Attorney General
FINANCIAL LITIGATION
DIVISION
P.O. Box 12548
Austin, TX 78711-2548
TEL: (512) 475-3503
FAX: (512) 477-2348/480-8327
Email: jack.hohengarten@oag.state.tx.us
ATTORNEY FOR DEFENDANTS

ACCELERATED APPEAL, SANADCO, ET AL 42
 VERIFICATION

STATE OF TEXAS §
§
COUNTY OF TARRANT §

BEFORE ME, the undersigned authority, personally appeared
Samuel T. Jackson, who, being by me duly sworn, on his oath
deposed and stated the following:
I, SAMUEL T. JACKSON, am over 18, of sound mind and
otherwise capable of making this affidavit. I am the attorney
representing Sanadco Inc. and Mahmaud A. lsba, Et Al, Appellants
in this accelerated appeal and Defendants in the court below. I have
prepared Appellants' brief and the appendix and hereby certify that
all of the documents in the attached appendix are true and correct
copies of the documents filed with the Office of the Comptroller
of Public Accounts in the underlying administrative proceedings
as those documents exist in my files or were transferred to us by
opposing counsel. I swear under oath and upon personal
knowledge that the factual

ATTORNEY FOR APPELLANTS
SUBSCRIBED AND SWORN TO BEFORE ME on the 13th day of April 2015,
to certify which witness my hand and official seal.

APPENDIX
Appendix
Exhibit
ACCELERATED APPEAL, SANADCO, ET AL 43
1. Order Denying Plaintiffs’ Declaratory Judgment and Application for
Temporary Injunction

A. Grocery Store Manual-2004
B. Sanadco’s Comptroller Decision
C. Sanadco Order Denying Motion for Rehearing
D. Broadway Comptroller Decision
E. Broadway Order Denying Motion for Rehearing
F. Tax Division’s Motion to Dismiss Shariz, Inc.
G. Comptroller’s Decision, Shariz, Inc.
H. Order Denying Motion for Rehearing, Shariz, Inc.
I. Request for Redetermination Hearing, Ruby & Sons
J. Request for Redetermination Hearing, Isba
K. Comptroller’s Decision, Isba
L. Denial of Motion for Rehearing, Isba
M. Request for Bond, Isba
N. Petition for Judicial Review, Isba
O. Payment, Isba
P. Cancellation of Permit, Isba
Q. Enforcement Activity, Isba
R. Collection Letter, Broadway
S. IBC Notice of Freeze, Broadway
T. Bank of America Alert, Broadway
U. Notice of Visit, Shariz, Inc.

ACCELERATED APPEAL, SANADCO, ET AL 44
ACCELERATED APPEAL, SANADCO, ET AL 45
 EXHIBIT 1

ORDER DENYING TEMPORARY INJUNCTION
 EXHIBIT A

GROCERY STORE MANUAL-2004
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Grocery Stores Manual

Grocery Stores
Revised 09/2004

Chapter IV — Special Reporting Methods
 Method B - Purchase Ratio Method
 Method C - 15% of Gross Sales
 Audit Procedure - 15% Method
 Method E - Commingled Receipts

Three special reporting methods are available to retail grocers as outlined in the sales tax statute
(TEX. TAX CODE ANN. 151.412, 151.413 and 151.416) and State Sales and Use Tax Rule
3.328 (Optional Reporting Methods for Grocers and Other Vendors).

The special reporting methods are commonly referred to as the:

 Purchase Ratio Method (Method B)

- A percentage ratio of taxable items purchased to total items purchased is applied to
gross sales to determine taxable sales

 15% Method (Method C)

- A retail grocer whose gross receipts do not exceed $100,000 per calendar year may
report and pay tax based on 15% of gross receipts

 Commingled Receipts Method (Method E)

- Tax collected is commingled with the receipts from the sales of both taxable and
 nontaxable items

If a taxpayer is reporting under one of these methods and qualifies for the use of the method, the
audit procedure is to verify returns and computations based on the method being used.

Purchase invoices must be maintained for at least four years to verify a grocer's sales tax returns
regardless of the method chosen for reporting purposes.

The use of an optional special reporting method does not relieve the seller from the obligation
and duty of collecting tax in the specific manner as prescribed in the statute and in accordance
with the bracket system (TEX. TAX CODE ANN. 151.415).

Method B - Purchase Ratio Method
This method may be used by a grocer for reporting purposes only, and eligibility is restricted to:

 Any retail grocer
 Any vendor who maintains a separate grocery department with separate records which
may be audited by the Comptroller, as applies to the grocery department only
 Any vendor whose taxable receipts from the sale of taxable items are less than ten
percent of his total receipts

NOTE: Under the current definition of a retail grocer, most convenience stores
and many grocers do not qualify. However, the Comptroller still allows
them to use this method.

The following steps are used under this method:

 Determine the total sum of merchandise purchased for resale during the preceding
calendar or fiscal year
 Determine the total sum of taxable merchandise purchased during the preceding calendar
or fiscal year
 Divide the total amount of taxable merchandise purchased by the total merchandise
purchased for resale to obtain a percentage relationship
 Multiply the percentage obtained times the total sales for the reporting period to obtain
the taxable sales
 Items which are purchased tax-free and used by the taxpayer (and which are subject to
sales/use tax) must be included on the return as taxable purchases

An audit of a taxpayer who uses the purchase ratio method to compute taxable sales will
generally be limited to verification of reported amounts based on summary records and
computation procedures. The verification procedures should include:
  An examination of the taxpayer's worksheets which were prepared to compute total
purchases and segregate taxable and nontaxable item purchases - worksheet amounts for
total purchases should be traced to summary records (purchases journal, cost of goods
sold section of the Federal Income Tax Return, etc.)
 Tracing purchase invoices for sample periods to verify proper inclusion and segregation -
sample periods should include entire purchase cycles (weeks, months, etc.)
 Comparing the purchasing patterns with the purchase invoices for the sample period -
vendors may need to be contacted to verify purchases
 Verifying any adjustments to taxable and gross purchases which would include:
o Operating supplies
o Wrapping and packaging items
o Trading stamps
o Finance, insurance, and other charges
o Inventory variances
 Method of inventory - actual physical inventory, gross profit method
 Valuation of inventory - retail value, cost
 Segregation by product line or department
o Base stock inventories for new stores or departments
o Interstore transfers
o Personal purchase/use items (employee gifts, etc.)
o Unusual losses due to theft, spoilage, fire, or other reasons which can be
supported by police/fire reports, insurance claims, inventory studies, etc.
o Significant purchase discounts and allowances which could include cash
discounts, volume rebates, quantity discounts, promotional allowances, etc. -
since these discounts can apply to taxable/nontaxable grocery items as well as
non-grocery items, a segregation test of the discounts may have to be done
 Cash discount - reduction from invoice price allowed for prompt payment
 Volume rebate or quantity discount - an allowance or reduction of the
price for volume purchases based on the number of units sold or purchased
during a promotional period. The allowance is directly related to units sold
or purchased although the grocer may incur some additional promotional
expense. The retail price of the product may or may not be lowered during
the promotional period. This term does not include display or other
merchandising plan allowances or payments which are based on
agreements not related to volume of purchases, or cooperative advertising
allowances, which are based on national line rate advertising and are also
not related to volume or purchases and sales. Cooperative advertising
allowances are intended to reimburse a grocer for a portion of his
advertising costs for a particular product or products.

NOTE: Some of the discounts listed above may not be reflected on the purchase
invoice but rather may be listed as a separate credit memo.

 Verification of gross receipts which may have to include adjustments for the following;
o Sales tax included in reported gross sales
 EXAMPLE: Gross sales including tax = $104,950
  Tax collected is unknown as taxpayer's cash register only accounts
for total sales amount which may include any tax collected
 The percentage relationship of taxable purchases to total purchases
is determined by the auditor to be 60%
 Taxable percentage .60
 Applicable tax rate X.0825
 ------
 Subtotal .0495
 +1.000
 ------
 Total 1.0495
 Gross Sales including sales tax$ 104,950
 Divided by percentage 1.0495
 Gross sales excluding sales tax $100,000
 Multiplied by taxable percentage .60
 Audited taxable sales $ 60,000
 Audited taxable sales of $60,000 x .0825 - $4,800 sales tax
collected
o Delivery charges
o Vending machine sales
o Sales of food for immediate consumption
o Meat processing revenue
o Commission receipts which may result from:
 Money orders
 Gasoline sales
 Leased departments
 Amusement machines
 Vending machines
 Movie rentals on a commission basis
o Any departments where records are separately maintained
o Video rentals
o Rentals of equipment, such as steam-cleaning machines
o Deposits on returnable items
o Coupon handling fees
o Verification of any deductions for bad debts
o Any adjustments for other items noted

NOTE: The receipts for the above-listed items must be deducted from Gross
Sales/Total Receipts before applying the applicable taxable percentage.

If the preliminary tests indicate that the taxpayer's worksheet amounts (total purchases and
nontaxable purchases) are correct, only the proper application and mathematical accuracy of
reported amounts needs to be verified.

If the preliminary tests indicate that the taxpayer's worksheet amounts are not correct, then the
tests should be expanded to determine if the potential audit adjustment warrants the additional
time to perform the fieldwork.
NOTE: For audit purposes only, the Comptroller permits a 5% theft and
spoilage allowance on gross taxable sales. This should be taken into
consideration when determining a potential audit adjustment. The
application of the 5% allowance will be discussed later.

Exams and schedules prepared by auditors utilizing the purchase ratio method of auditing
grocery stores/convenience stores will be discussed later in this manual.

Method C - 15% of Gross Sales
Under this method, a grocer may report and pay tax based on taxable sales equaling 15% of the
gross sales. However, eligibility for the use of this method is restricted to:

 Retail grocers, as previously defined, and whose gross receipts do not exceed $100,000
per calendar year
 A retail grocer with one or more outlets, if all outlets under the same ownership qualify
and if the combined gross sales of all the outlets do not exceed $100,000 per calendar
year

NOTE: If more than 5% of the receipts consist of sales of tangible personal
property (beer & wine, cigarettes, gasoline, etc.), the grocer is not
eligible for Method C.

The grocer's eligibility will be determined on a calendar year-by-calendar year basis.

The State Sales and Use Tax Statute Sec. 151.413 and State Sales and Use Tax Rule 3.328
provide the following procedures and requirements to be followed by a taxpayer who elects to
use this method:

 Gross sales per report period are multiplied by 15% to obtain the taxable sales
 A grocer who elects to report under this method must continue to do so for three years
unless the gross sales for a calendar year exceeds $100,000
 When the receipts of a grocer who elects to use this method exceeds $100,000 for a
calendar year, the grocer is ineligible to continue reporting under this method on the first
day of the calendar month after the month in which the limitation is exceeded
o EXAMPLE: Grocers using this method will be quarterly filers. If a grocer
exceeds the $100,000 limit in October, the fourth quarter report is not eligible for
the 15% method. In addition, the grocer is liable for assessment of all back tax,
penalty, and interest under actual percentage for the other quarterly period of the
calendar year.

If a retail grocer is eligible for filing under this method and actually files using the 15% method,
any audits performed will be limited to verification through this same method. Additional taxes
will not be assessed nor any refunds/credits will be allowed because this method differs from the
amount that would have been paid under any other reporting method. This holds true if
comparing taxes collected to taxes reported as in the example below. However, computational,
transposition, and carry-forward errors may be adjusted for, such as using an incorrect or
incomplete sales figure or multiplying by a wrong percentage.

o EXAMPLE: Taxpayer's gross sales for a report period equals $20,000. Utilizing the 15%
method, the taxpayer reported $3,000 as taxable sales and paid tax of $247.50 (@8 1/4%).
Taxpayer's sales journal states that $200 sales tax was collected. The taxpayer is not due a
refund.

This method cannot be substituted for another method previously elected, and it is prospective.

Audit Procedure - 15% Method
An audit of a retail grocer electing to report taxable receipts using this method will be limited to
determining whether or not the grocer is eligible to use this method and the accuracy of the tax
reports.

The following criteria must be considered for audit purposes:

 The taxpayer must meet the definition of a "retail grocer" as covered above in the
manual's introduction.
o Sales of items other than food (not for immediate consumption), household
supplies, and nondurable household goods must not exceed five percent of gross
sales - such items include:
 Beer and wine
 Gasoline (not on commission)
 Hardware
 Automotive parts
 Fishing/hunting supplies
 Souvenirs/curios
 Cigarettes, cigars, tobacco products
 Gross sales must not exceed $100,000 per calendar year, even though the taxpayer may
not have been in business for the full year
 The method must be continuously used for three years unless the taxpayer becomes
ineligible

Audit assessments will be based on the actual percentage of taxable sales for any calendar
year(s) in which the taxpayer is not eligible. If an audit of a taxpayer who has not elected to use
the 15% method discloses that the taxpayer could have used the method for any or all years in
the audit period, the taxpayer will not be allowed to amend prior reports nor will the audit be
performed using the method for any years in the audit period.
Method E - Commingled Receipts
A third method is provided by the statute and in Rule 3.328 for grocers who establish an
accounting system in which sales tax collected is commingled with the receipts from the sale of
taxable items. Method E establishes a method of backing out the tax from the gross sales.

The formula to be used to determine taxable sales using this method is:

Gross sales including tax

----------------------------
Taxable sales including tax

The taxable sales amount including tax is then divided by 1.00 plus the applicable tax rate
decimal factor to derive taxable sales excluding tax.

Taxable sales = Taxable sales
-------------
1 + Tax Rate excluding tax

An examination of the records of a taxpayer using this method will include:

 A verification of gross sales
 Verification that tax is included in gross sales
 Confirmation that the taxable or nontaxable sales are accurate through use of one of the
other special reporting methods
 Confirmation of the mathematical accuracy of computations

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 EXHIBIT B

SANADCO COMPTROLLER DECISION
 S U S A N
TE X A S C 0 M PT R 0 L L E R O j P U B L IC A C C 0 LI N T S

C 0M B S P.O. Box 13528 .AUSTIN, TX 7871 1-.3528

June 16, 2014

Mr. Samuel T. Jackson
Law Office of Samuel T. Jackson
P.O. Box 170633
Arlington, TX 76003-0633

Re: Sanadco, Inc. Mahmoud Ahmed Isba
Hearing No. 106,815 Hearing No. 107,006
Taxpayer No. xxxxxxxxxxx Taxpayer No. xxxxxxxxxxx

The Comptroller's Decision (Decision) for the above-referenced hearings, which resulted
in tax liabilities, is enclosed. The Decision includes the Comptroller's ruling on all
timely filed exceptions to the Proposal for Decision issued on December 12, 2013.
Except for minor changes to correct typographical or clerical errors, the Decision is
identical to the Proposal for Decision.

Unless a motion for rehearing is filed by July 9, 2014, the Decision will become final.
Your total liabilities resulting from the hearings are shown in Attachments A to the
Decision; please note, however, that additional daily interest will continue to accrue until
you have paid the total liabilities and any additional accrued interest. Your total
liabilities, plus any additional accrued interest is due twenty days after the Decision
becomes final. If you fail to timely file a motion for rehearing or pay the total liabilities,
as well as any additional accrued interest, within twenty days after the date the Decision
becomes final, an additional 10% penalty will be assessed on the tax due and interest will
continue to accrue.

A motion for rehearing can only be filed with the Special Counsel for Tax Hearings at
P.O. Box 13528, Austin, Texas 78711-3528 or by facsimile at 512-936-6190. However, a
copy must be filed with the Assistant General Counsel in the Administrative Hearings
Section. If you have any questions about the procedures for filing a motion for rehearing
or a waiver of the right to file a motion for rehearing, you may contact the Assistant
General Counsel, Isreal Miller, by calling toll-free 800-531-5441, extension 3-4612. The
regular number is 512-463-4612.

Chris Kadas
Special Counsel for Tax Hearings

cc: Isreal Miller, Representing Tax Division EXHIBIT B
Sanadco, Inc.
Mahmoud Ahmed Isba

WWW.WINDOW.STATE.TX.US 51 2·463·4000 • TOLL FREE: I·800- 531·544 I • FAX: 5 1 2·463·4965
 SOAH DOCKET NO. XXX-XX-XXXX.26
CPA HEARING NO. 106,815

RE: SANADCO, INC. § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
TAXPAYER NO: xxxxxxxxxxx § SUSAN COMBS
§ Texas Comptroller of Public Accounts
AUDIT OFFICE: Fort Worth 2I40 §
§ ISREAL MILLER
AUDIT PERIOD: February 1, 2007 § Representing Tax Division
THROUGH June 30, 2009 §
§ SAMUEL T. JACKSON
Sales And Use Tax/RDT § Representing Petitioner

SOAH DOCKET NO. XXX-XX-XXXX.26
CPA HEARING NO. 107,006

RE: MAHMOUD AHMED !ISBA § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
TAXPAYER NO: xxxxxxxxxxx § SUSAN COMBS
§ Texas Comptroller of Public Accounts
AUDIT OFFICE: Advanced Processes 2S52 §
§ ISREAL MILLER
AUDIT PERIOD: May 1, 2007 § Representing Tax Division
THROUGH June 30, 2009 §
§ SAMUEL T. JACKSON
Sales And Use Tax/RDT § Representing Petitioner

COMPTROLLER'S DECISION

Sanadco, Inc. (Petitioner SI) was audited for sales and use tax compliance by the Tax
Division of the Texas Comptroller of Public Accounts (Staff) and assessed tax, a 10% penalty,
an additional 50% penalty, and accrued interest. Staff also assessed personal liability against
Mahmoud Ahmed Isba (Petitioner Isba) under Tax Code § 111.0611 as the president of
Petitioner SI. Petitioners contest their audit assessments on the same grounds, including the
contentions that the audit assessment is void and unenforceable because the estimate was based
on audit procedures that constituted invalid rules, and that the present audit overlaps a previous
final audit assessment. Staff rejects the Petitioners' contentions. In the Proposal for Decision,
the Administrative Law Judge (AU) recommends that the corporate assessment against
Petitioner SI should be affirmed, except that the markup percentage used in calculating the
estimated tobacco sales should be adjusted and that the additional fraud penalty should be
applied only to the report periods February 1, 2007, through April 30, 2008. The ALl also
recommends that the personal liability assessment against Petitioner Isba should be limited to the
report periods May 1, 2007, through April 30, 2008.

I. PROCEDURAL HISTORY, NOTICE AND JURISDICTION

On May 10, 2013, Staff referred the cases to the State Office of Administrative Hearings
(SOAH) for oral hearings. AU Peter Brooks ordered the cases joined because the cases involve
related parties, and common facts and issues of law. Staff was represented by Assistant General
Counsel Isreal Miller, and Petitioners were represented by Attorney Samuel T. Jackson. The
case convened on September 9, 2013. The AU closed the record on November 12, 2013. There
are no contested issues of notice or jurisdiction. Therefore, these matters are set out in the
Findings of Fact and Conclusions of Law.

II. REASONS FOR DECISION

A. Evidence Presented

Staff submitted the following exhibits in SOAH Docket No. XXX-XX-XXXX.26:

1. 60-Day Letter;

2. Texas Notification of Audit Results;

3. Penalty and Interest Waiver Worksheet;

4. Audit Report; and

5. Audit Plan, which includes Audit Referral Report for Additional Penalty.

2
Staff submitted the following exhibits in SOAH Docket No. XXX-XX-XXXX.26:

1. Texas Notification of Personal Liability for Fraudulent Tax Evasion;

2. Audit Exam, including correspondence and e-mail communications from the
Revenue Accounting Division; the Calculated Message, Adjustment, and
Allocation Reports; Tax Summary, Status, Balance, Audit, and Tax Allocation
Basis Inquiries; and Personal Liability Fraudulent Tax Evasion Worksheet;

3. Sales and use tax returns for report periods April 2007, May 2008,
December 2008, February 2008, and January 2009; and

4. State Filings: Statement of Change of Registered Office/Agent, dated
May 5, 2006; and Texas Franchise Tax Public Information Reports signed
May 10, 2006, March 13, 2008, and February 26, 2009.

Staff attached to its Response to Petitioner's Post-Hearing Brief the following exhibits:

6. Copy of Memorandum Opinion issued in Sanadco, Inc. v. Comptroller of Pub.
Accounts, No. 03-11-00462-CV, 2013 Tex. App. LEXIS 12013 (Tex. App.-
Austin September 26, 2013, no pet. h.); and

7. Appellee's Motion for Rehearing and Reconsideration en bane filed in
Sanadco, Inc.

Petitioner SI produced during the hearing its responses to Staff s Second Set of
Interrogatories, Requests for Admissions, and Requests for Production. Petitioner did not
offer any other evidence during the hearing, but did attach to its Post-Hearing Brief the
following exhibits:

1. The Examination performed by the Comptroller's Business Activity Research
Team (BART) for the exam period January 1, 2008, through March 31, 2009,
including, the Accounts Examiner Coversheet; correspondence and e-mail
communications from BART; the Texas Notification of Exam Results; the
Message, Adjustment, and Allocation Reports; Petitioner's Alcohol and Tobacco
Purchases for January 2008 through March 2009; and ITS Work Manager
Comments;

2. Plaintiff's Original Petition, Sanadco, Inc., 2013 Tex. App. LEXIS 12013;

3
 3. Defendant's First Amended Answer and Counterclaim, Sanadco, Inc., 2013 Tex.
App. LEXIS 12013; and

4. Counter-Defendant's Original Answer and Jurisdictional Plea, Sanadco, Inc.,
2013 Tex. App. LEXIS 12013.

There were no evidentiary objections, and each of the listed documents is admitted as
part of the contested case record.

The only witness testimony presented during the contested case hearing was that of
Dennis Eastman, the audit supervisor who supervised the Comptroller auditor who performed
Petitioner Si's audit. Staff presented the testimony of Mr. Eastman.

B. Adjustments

Staff has not agreed to adjust any of the contested audit assessments.

C. Facts Established and Issues Presented

Petitioner SI operated a convenience store in Fort Worth, Texas, during the audit period
February 1, 2007, through June 30, 2009. Petitioner SI no longer owns the convenience store.
Petitioner SI was subjected to a desk audit performed by BART for the exam period of
January 1, 2008, through March 31, 2009. It was assessed a tax liability of $23,593.60,
consisting of tax, the 10% standard penalty, the additional 50% penalty, and accrued interest.
The exam was prompted 1 by a comparison of Petitioner Si's alcohol and tobacco purchases for
the exam period reported by Petitioner SI's tobacco and alcohol vendors pursuant HB 11.2 The
HB 11 tobacco and alcohol purchases for the exam period exceeded the reported taxable sales for
the same period by $268,056 to $76,976. BART relied on the HB 11 data and the Comptroller's
Audit Division Policy Memo 122 (AP 122) in estimating the assessment. Petitioner SI did not

1
Petitioner's Exhibit 1, letter dated July 2, 2009, from BART advising Petitioner SI of assessment.
2
Wholesalers and distributors of beer, wine, malt liquor, cigarettes, cigars, and tobacco products are required to
submit electronic reports, on a monthly basis, to the Comptroller. These electronic reports are required by Tex. Tax
Code Ann. §§ 151.462, 154.212, and 155.105, which were enacted as part of Tex. H.B. 11, 80th Leg., RS. (2007).
The vendor records are commonly referred to as HB 11 records.

4
file a request for redetermination contesting the assessment, consequently, the assessment
became final. The sales and use tax delinquency was certified to the Attorney General.3 The
Attorney General filed a lawsuit seeking to collect the delinquency from Petitioners SI and Isba.4
Petitioners filed various counterclaims against the Comptroller. However, the trial court
dismissed Petitioners' counterclaims for lack of jurisdiction. Petitioners appealed the dismissal.
The appeals court sustained Petitioners' claim that the Comptroller's directives in AP 92 and AP
122 were in fact rules and also concluded that the trial court had jurisdiction over Sanadco's
claim that AP 92 and AP 122 were invalid rules and that, therefore, the trial court erred in
dismissing this counterclaim. See Sanadco, Inc., 2013 Tex. App. LEXIS 12013, at *21-22.

Staff subsequently conducted an audit of Petitioner SI's sales and use tax compliance for
the audit period February 1, 2007, through June 30, 2009. Petitioner SI did not respond to the
auditor's requests for records.5 The auditor issued a Notification of Estimation Procedures for
State Tax Audit (Notification of Estimation) dated January 27, 2011, advising Petitioner SI that
the audit would be estimated using HB 11 data, and that the AP 122 procedures would be
followed.6 When the auditor initiated the audit fieldwork Petitioner SI no longer operated the
convenience store. Therefore, the auditor could not perform a shelf test and instead used the
industry average markup percentages of 118.44% and 124.07% respectively for tobacco and
alcohol purchases set out in AP 122.7 The auditor totaled the tobacco and alcohol purchases
made by Petitioner SI using the HB 11 data for the report periods January 1, 2008, through
June 30, 2009. The total alcohol and tobacco purchases were multiplied by their respective
markup percentages. 8 No product-mix percentage was calculated, because no purchase invoices
were available. Therefore, the standard AP 122 product-mix percentage of 54% for tobacco and
alcohol products was applied to arrive at estimated taxable sales. The auditor afforded a 5%
allowance for spoilage and theft, and credit was given for reported taxable sales. The adjusted
taxable sales were then reduced by the amounts assessed in the BART exam for the report
periods January 1, 2008, through March 31, 2009, and the resulting additional taxable sales were

3
Petitioner's Exhibit 2, Texas Certificate to Attorney General of Sales and Use Tax Delinquency.
4
Petitioner's Exhibit 2, Plaintiff's Original Petition.
5
Staff s Exhibit 4 (Petitioner SI), Audit Report.
6
Id.
7
Id., and Staff's Exhibit 4 (Petitioner SI), Exam 20B.
8
Id.

5
then multiplied by the applicable tax rates to arrive at the tax due for the period January 1, 2008,
through June 30, 2009.9

As there was no HB 11data available for the periods preceding January 1, 2008, the
auditor estimated the additional taxable sales for the report periods January 1, 2008, through
June 30, 2009 by first determining the average monthly net estimated taxable sales. The post-
December 31, 2007, total net estimated taxable sales of $728,443.17 were divided by the
18 report periods to arrive at a monthly average of $40,469.06. 10 The additional taxable sales for
the pre-January 1, 2008, report periods were calculated by giving credit for the taxable sales
reported to the Comptroller and applying the 5% allowance for spoilage and theft. The resulting
additional taxable sales were then multiplied by the applicable tax rate to determine the tax due
for this part of the audit period. 11

Since no contact was made during the audit with an officer, owner, or representative of
Petitioner SI, the auditor did not record in the Audit Plan or in the Audit Referral Report for
Additional Penalty any information regarding the role played by an officer, director, owner, or
employee of Petitioner SI in the operation of the store or in the preparation and filing of the sales
and use tax returns and the remittance of sales and use tax payments. The only substantive
information regarding Petitioner Isba's activities is found in Petitioner Si's responses to Staff s
Second Set of Interrogatories, Requests for Admissions and Requests for Production.
Petitioner SI admitted that Petitioner Isba signed checks for remitting sales and use tax payments
during the audit period. 12 Petitioner Isba is identified as the person responsible for depositing the
store's sales proceeds, ordering the store's inventory, and paying for the store's inventory
13
purchases. Petitioner Isba was also identified as the person who received the monthly bank
statements. 14 However, according to Petitioner Si's answers to the interrogatories,
Petitioner Isba's responsibility for these tasks ended when, on May 1, 2008, he entered into an
agreement to sell Sanadco, Inc. to his employees, Yassien Siam and Sandra Salazar. Mr. Siam

9
Staff s Exhibit 3 (Petitioner SI), Audit Report, Exam 20.
10
Staff's Exhibit 4 (Petitioner SI), Audit Report, Exam 20B.
11
Staff's Exhibit 3 (Petitioner SI), Audit Report, Exam 20.
12
Petitioner Si's Admission No. 2.
13
Petitioner Si's Answers to Interrogatories Nos. 4, 5, and 6.
14
Petitioner Si's Answer to Interrogatory No. 7.

6
thereafter assumed responsibility for these tasks from May 1, 2008, until the end of the audit
period.

Petitioner SI, in the responses to Staff s Interrogatory No. 1,stated that Petitioner Isba
was the sole owner, officer, or manager through May 1, 2008. Petitioner Isba signed
Petitioner Si's 2006 Texas Franchise Tax Public Information Report (PIR) as president of
Sanadco. 15 The PIR is dated May 10, 2006. Although Petitioner Si's 2008 PIR identified
Petitioner Isba as the corporate president, the form is signed by a Mike Isba.16 The PIR is dated
March 13, 2008. The 2009 PIR identifies Petitioner Isba as the president, but it bears the
signature Isba, without a given name. 17 The PIR is dated February 26, 2009.

On April 1, 2011, Staff issued to Petitioner SI a Texas Notification of Audit Results
assessing tax, the standard 10% penalty, the additional 50% fraud penalty, and accrued interest,
totaling $112,381.02, with $64,336.87 attributable to tax. The overall error rate for Petitioner SI
was 66.45%, which was calculated by dividing the tax assessed by the sum of the tax reported
and assessed. 18 Petitioner SI timely requested redetermination.

Staff also issued a jeopardy determination on March 30, 2011, against Petitioner Isba,
pursuant to Tax Code § 111.0611, assessing personal liability for the tax liability of Petitioner SI
for the period May 1, 2007, through June 30, 2009. 19 The personal liability assessment consisted
of tax, the standard 10% penalty, the additional 50% penalty, and accrued interest through the
date of notification. The personal liability assessed against Petitioner Isba totaled $95,620.96,
with $55,168.87 attributable to tax. Petitioner Isba timely requested redetermination.

Both Petitioners SI and Isba contested their assessments on the same grounds:

1. The imposition of additional fraud penalties should be deleted because Petitioner
provided substantial records, and the underpayment was not the result of fraud or
a knowing or willful intent to evade taxes;
15
Staff s Exhibit 4 (Petitioner Isba).
16 Id.
17 Id.
18
Petitioner Si's Penalty and Interest Waiver Worksheet.
19
Staff s Exhibit 1 (Petitioner Isba). Texas Notification of Personal Liability.

7
 2. The auditor was not authorized to engage in estimating procedures because
Petitioner maintained the required records, and the available records were not
inadequate;

3. The auditor's exclusive use of HB 11 information and estimated markups to
determine the tax liability for beer and cigarettes, when Petitioner had
documentation regarding the actual purchases and markups, was improper;

4. The auditor's calculations regarding markups were well beyond national averages
and those contemplated under AP 122;

5. The imposition of additional penalties for the jeopardy determination was flawed,
because the statute authorizing such penalties is unconstitutionally vague for its
failure to establish guidelines for its imposition;

6. The audit should be revised to exclude previously audited inventory;

7. The audit is void as unenforceable because it was based on audit procedures that
constitute invalid rules; and

8. The subject audit overlaps a previous final audit, consisting of a BART exam for
the period January 1, 2008, through March 31, 2009.

D. Analysis and Recommendation

1. SOAH Docket No. XXX-XX-XXXX.2626 (Petitioner SI)

When records are inadequate to reflect the taxpayer's business operations, the
Comptroller is authorized to estimate a taxpayer's liability based on the best information
available. Tex. Tax Code Ann. § l 1l.0042(d). An estimated audit was appropriate in this case
because Petitioner SI did not have complete records. The Comptroller has held that estimated
audits based on HB 11 vendor records and AP 122 procedures meet the best information
available requirement when taxpayer records are incomplete or unreliable. See Comptroller's
Decision No. 103,892 (2011). The evidence that Staff submitted establishes that the audit was
based on the best information available and that established audit procedures were followed.
Consequently, the audit is entitled to a presumption of correctness. Petitioners, therefore, bear
the burden of proof to show by a preponderance of the evidence that the audit results are
incorrect. 34 Tex. Admin. Code § l.40(2)(B).

8
 Several of the contentions are based on Petitioners' claim that there were sufficient
records available for the auditor to perform an audit without relying on HB 11 data and the
AP 122 estimating procedures. The audit work papers do not support Petitioners' assertion that
records were provided to the auditor. The auditor issued letters (dated October 22, 2009, and
July 28, 2010) requesting the records required to conduct the audit, including purchase invoices
and sales records, but there was no response. 20 The failure to produce records is also referenced
in the Notification of Estimation and 60-day letter issued by the auditor.21 Moreover, Petitioner
during the SOAH contested case hearing did not offer any of the records it claimed it had
available.

Petitioners also asserted that the markup percentages used by the auditor exceeded the
national averages and those contemplated by AP 122. The auditor used the markup percentage
of 124.07% designated in AP 122 for alcohol purchases. 22 AP 122 expressly provides that the
average convenience store markup percentage of 124.07% assigned to 2007 is to be used for
subsequent years until new markup percentages are available. The same provision applies for
tobacco products. The markup percentage of 118.02% assigned to 2007 is to be used for
subsequent years until new markup percentages are available. The auditor, instead, used the
markup percentage of 118.44% that is reserved for 2006.23 No explanation was found in the
audit work papers or in Staff s pleadings for deviating from this directive. Consequently, the
AU finds that the auditor erred and recommends that the correct markup percentage of 118.02%
should be used in marking up the tobacco purchases to calculate estimated tobacco sales. The
application of the correct markup percentage will have only a minor effect on the calculation of
the estimated tobacco sales. The adjusted estimated tobacco sales total $100,550.67 versus the
$100,908.51 resulting from the markup of 118.44%. The AU calculated that the application of
the correct markup percentage for tobacco products would reduce the assessment of tax from
$64,336.90 to approximately $64,305.00.

20
Staff's Exhibit 4 (Petitioner SI), Audit Report, Exhibits II and III.
21
Staff's Exhibit 1 (Petitioner SI), Sixty-Day Letter and Staff's Exhibit 4 (Petitioner SI), Audit Report, Exhibit I.
22
Staff s Exhibit 4 (Petitioner SI), Exam 20B.
23 Id.

9
 Next Petitioners assert that the audit assessment should be disregarded because it is based
on invalid estimating procedures. Petitioners rely on the appellate court's recent decision in
Sanadco, Inc., 2013 Tex. App. LEXIS 12013. However, any precedential value placed on the
decision is premature, as the decision has not become final. Appellee has filed motions for
en bane reconsideration and for rehearing. The court has yet to rule on the motions. The
appellate court's decision becomes final when the court's plenary power expires. See Oscar
Renda Contracting, Inc. v. H&S Supply Co., 195 S.W. 3d 772 (Tex. App.-Waco 2006, pet.
denied). And the court will lose plenary power 30 days after the court overrules the motion for
rehearing and en bane reconsideration. Tex. R. App. P. 19.l(b).

Petitioners also contend that the subject audit should be restricted to the report periods
that fall outside of the BART exam period of January 1, 2008, through March 31, 2009. Thus,
according to Petitioners, the audit assessment should be restricted to the report periods
February 1, 2007, through December 31, 2007, and April 1, 2009, through June 30, 2009.
Petitioners, in effect, are arguing that Staff is estopped from rearguing the liability due during the
period previously examined by BART. However, a party seeking to assert the bar of collateral
estoppel must establish that: "(1) the facts sought to be litigated in the second action were fully
and fairly litigated in the first action; (2) those facts were essential to the judgment in the first
action; and (3) the parties were cast as adversaries in the first action." Sysco Food Servs. v.
Trapnell, 890 S.W.2d 796, 801 (Tex. 1994), citations omitted; and Also see Comptroller's
Decision No. 100,190 (2012).

The BART exam of Petitioner Si's convenience store differs in several significant ways
from the subsequent sales and use tax audit of the same convenience store. As the BART exam
focused exclusively on Petitioner Si's alcohol and tobacco sales and purchases, no product-mix
percentage was applied. However, a product-mix percentage was needed when Petitioner SI was
subsequently audited for sales of other products such as candy, soft drinks, food and general
merchandise. In addition Petitioner SI was afforded a 5% allowance for spoilage and theft in the
sales and use tax audit. The same facts were not essential to the judgment in each contested tax
case. Thus, the Comptroller was not estopped by the results of the BART exam from
subsequently performing a sales and use tax audit of the same taxpayer, especially since the

10
taxable sales determined in the BART exam were deleted from the calculation of additional
taxable sales in the sales and use tax audit See Comptroller's Decision Nos. 107,579 (2013) and
104,445 and 105,726 (2012).

The Comptroller is authorized to assess an additional 50% penalty under Tex. Tax Code
Ann. § 111.061(b) if she determines that a taxpayer committed fraud or had the intent to evade
tax. Staff has the burden of establishing by clear and convincing evidence that the fraud penalty
applies. See 34 Tex. Admin. Code § l.40(l)(B). Clear and convincing evidence is proof that will
produce a firm belief or conviction as to the truth of the allegations sought to be established, but
which need not be unequivocal or undisputed. See Comptroller's Decision No. 37,946 (2000);
State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam), on remand , 441 U.S. 418.

As noted above, the overall error rate for the audit period is 66.45%. The revised overall
error rate decreased, almost unperceptively, to 66.44% once the error rate is recalculated using
the assessed tax amount of $64,305.24 In prior Comptroller decisions gross underreporting of
taxable sales, defined as an error of 25% or greater, has been found sufficiently indicative of
intent to evade the tax to warrant assessment of the fraud penalty, particularly when there were
other factors or no plausible explanation. See, e.g., Comptroller's Decision No. 43,248 (2004).
Also see Tex. Tax Code Ann. § 1l1.205(b).

Such gross underreporting, however, is not in and of itself sufficient to justify imposition
of the fraud penalty on corporate taxpayers. In the case of corporate taxpayers, the Comptroller
recognizes that a corporation is a separate legal entity that is controlled by its officers and
directors and that the requisite intent of a corporation is determined from the actions of the
officers or directors. When an officer is proven to have been directly involved in the fraudulent
activities, the additional penalty against a corporation has been upheld, because a corporate
officer's fraudulent actions can be attributed to the corporation. See Comptroller's Decision
Nos. 105,148 & 104,471 (2011), 44,891 (2005) and 44,528 (2005). The question is to what
degree Petitioner Isba, the company's president, was aware or should have been aware of the
underreporting of tax. See e. g., Comptroller's Decision No. 103,204 and 104,238 (2012).

24
The recalculated formula is assessed tax ($64,305) ..;. sum of the assessed tax and reported tax ($96,790.61).

11
 The only substantive evidence in the record directly establishing the extent of
Petitioner lsba's involvement in the operation and management of the convenience store, in the
preparation and filing of the sales and use tax returns, and remittance of the tax payments during
the audit period is found in the answers propounded to Staff s discovery. There also are the five
checks remitting payment signed by Petitioner Isba that were proffered by Staff.25 The AU,
based solely on the statements made in response to Staff s discovery, finds that Petitioner Isba
purchased and paid for the taxable inventory, made the daily deposits, and received the bank
statements, signed the sales tax returns, and paid the sales and use taxes. The AU, therefore,
concludes that Petitioner Isba was involved in, aware of, or should have been aware of the
underreporting of sales tax. However, the same information that supports this conclusion
expressly limits Petitioner Isba's involvement to the period preceding May 1, 2008, when he
entered into an agreement to sell the business and one of the buyers assumed responsibility for
performing these tasks. Staff has not addressed or refuted any part of Petitioner SI's responses to
its discovery requests, including the statements limiting Petitioner Isba's involvement to the
report periods preceding May 1, 2008.

The AU concludes that the record is sufficient to establish, by clear and convincing
evidence, fraudulent actions on the part of Petitioner lsba that are attributable to the company,
but only for the period February 1, 2007, through April 30, 2008. The AU therefore
recommends that the additional 50% fraud penalty should be dismissed for the period
May 1, 2008, through the end of the audit period.

Petitioners also argue that the imposition of additional penalties for jeopardy
determination are unconstitutional vague. The ALJ lacks the jurisdiction to consider Petitioner's
contention regarding the constitutionality of the jeopardy determination statute. The courts have
ruled that the Comptroller lacks jurisdiction to rule on the constitutionality of a statute that she
administers. See Tex. State Bd. of Pharmacy v. Walgreen Tex. Co., 520 S.W.2d 845 (Tex. Civ.
App.--Austin 1975, writ ref d n.r.e.). Also see Comptroller's Decision No. 105,821 (2013).

25
Staff s Exhibit 4 (Petitioner lsba).

12
 2. SOAH Docket No. XXX-XX-XXXX.26 (Petitioner Isba)

Tax Code § 111.0611 imposes personal liability on an officer, manager, or director of a
corporation who "as an officer, manager, director, or partner, took an action or participated in a
fraudulent scheme or fraudulent plan to evade the payment of taxes." The personal liability is
for taxes, penalties, including an additional 50% penalty, and interest that are due from the
corporation. Actions that indicate a fraudulent scheme or fraudulent plan to evade the payment
of taxes include filing, or causing to be filed, a fraudulent tax return or report with the
Comptroller on behalf of the business entity, or filing, or causing to be filed, a tax return or
report with the Comptroller on behalf of the business entity that contains an intentionally false
statement that results in the amount of the tax due exceeding the amount of tax reported by
25% or more. Tex. Tax Code Ann. § 111.0611(b)(l), (3).

The same facts that the ALJ relied on in recommending imposition of the additional
50% penalty support upholding the assessment of personal liability. First, there was an overall
gross underreporting of the tax, which resulted, even after taking into account the adjustment
recommended by the ALJ, in an error rate of 66.45%. Moreover, the record establishes that
Petitioner lsba was involved in the operation and management of the store and in the signing of
the sales and use tax returns and remittance of the tax payments. He ordered and paid for the
taxable inventory, deposited the store's receipts, received the bank statements, and signed both
the sales tax returns and the checks remitting payments to the Comptroller. However, the
evidence establishes this involvement by clear and convincing evidence only for the period
February 1, 2007 through, April 30, 2008. This record is sufficient to affirm the personal
liability assessment for the period May 1, 2007, through April 30, 2008, and the ALJ
recommends that the personal liability assessment should be dismissed for the period May 1,
2008, through June 30, 2009.

3. Recommendations

The ALJ recommends that the audit assessment against Petitioner SI should be affirmed,
but subject to the recommended adjustments correcting the calculation of estimated tobacco sales

13
and limiting the additional penalty to the period February 1, 2007, through April 30, 2008. In the
case of the personal liability assessment against Petitioner Isba, the AU recommends that the
assessment should be affirmed subject to the recommended adjustment in the underlying corporate
assessment and recommended dismissal of the personal liability assessment for the
period May 1, 2008, through June 30, 2009.

III. FINDINGS OF FACT

1. Sanadco, Inc. (Petitioner SI) operated a convenience store in Fort Worth, Texas, during
the audit period February 1, 2007, through June 30, 2009.

2. Petitioner SI was subjected to a desk audit performed by the Business Activity Research
Team (BART) of the Texas Comptroller of Public Accounts (Comptroller) for the exam
period of January 1, 2008, through March 31, 2009, and assessed a tax liability of
$23,593.60, consisting of tax, the 10% standard penalty, the additional 50% penalty, and
accrued interest.

3. The BART exam was prompted by a comparison of Petitioner Si's alcohol and tobacco
purchases for the exam period reported by Petitioner SI's tobacco and alcohol vendors
under HB 11.

4. Wholesalers and distributors of beer, wine, malt liquor, cigarettes, cigars, and tobacco
products are required to submit electronic reports, on a monthly basis, to the Comptroller.
These electronic reports are required by Tex. Tax Code Ann. §§ 151.462, 154.212, and
155.105, which were enacted as part of Tex. H.B. 11, 80th Leg., R.S. (2007). The vendor
records are commonly referred to as HB 11 records.

5. The HB 11 tobacco and alcohol purchases for the exam period exceeded the reported
taxable sales for the same period by $268,056 to $76,976. BART relied on the HB 11
data and the Comptroller's Audit Division Policy Memo (AP) 122 in estimating the
assessment.

6. Petitioner SI did not file a request for redetermination contesting the assessment,
consequently, the assessment became final and the sales and use tax delinquency was
certified to the Attorney General. The Attorney General filed a lawsuit seeking to collect
the delinquency from Petitioner SI and Mahmoud Ahmed Isba (Petitioner Isba). See
Sanadco, Inc. v. Comptroller of Pub. Accounts, No. 03-11-00462-CV, 2013 Tex. App.
LEXIS 12013 (Tex. App. - Austin September 26, 2013, no pet. h.).

7. Petitioners filed various counterclaims against the State. However, the trial court
dismissed Petitioners' counterclaims for lack of jurisdiction, which decision Petitioners
appealed. The appeals court sustained Petitioners' claim that the Comptroller's directives

14
 in AP 92 and AP 122 were in fact rules and also concluded that the trial court had
jurisdiction over Sanadco's claim that AP 92 and AP 122 were invalid rules and that,
therefore, the trial court erred in dismissing this counterclaim. See Sanadco, Inc.,
2013 Tex. App. LEXIS 12013, at *21-22.

8. Petitioner SI was audited by the Comptroller' Tax Division (Staff) for sales and use tax
compliance for the audit period, and the auditor estimated the audit due to incomplete
records.

9. Petitioner SI did not respond to the auditor's requests for records. The auditor issued a
Notification of Estimation Procedures for State Tax Audit dated January 27, 2011,
advising Petitioner SI that the audit would be estimated using HB 11 data, and that the
AP 122 procedures would be followed.

10. When the auditor initiated the audit fieldwork, Petitioner SI no longer operated the
convenience store. Therefore, the auditor could not perform a shelf test and instead used
the industry average markup percentages of 118.44% and 124.07% respectively for
tobacco and alcohol purchases set out in AP 122.

11. The auditor totaled the tobacco and alcohol purchases made by Petitioner SI using the
HB 11 data for the report periods January 1, 2008, through June 30, 2009. The total
alcohol and tobacco purchases were marked up by their respective markup percentages.

12. The standard AP 122 product-mix percentage of 54% for tobacco and alcohol products
was applied to arrive at estimated taxable sales, because no purchase records were
available.

13. The auditor afforded a 5% allowance for spoilage and theft to determine net estimated
taxable sales. Credit was given for reported taxable sales.

14. The resulting adjusted taxable sales were then reduced by the amounts assessed in the
BART exam for the report periods January 1, 2008, through March 31, 2009 to arrive at
the additional taxable sales.

15. The additional taxable sales were multiplied by the applicable tax rates to determine the
tax due for the report periods from January 1, 2008, through June 30 2009.

16. As there was no HB 11 data available for the periods preceding January 1, 2008, the
auditor estimated the additional taxable sales for this period by first determining the
average monthly net estimated taxable sales for the report periods January 1, 2008,
through June 30, 2009. The post-December 31, 2007, total net estimated taxable sales of
$728,443.17 were divided by the 18 report periods to arrive at a monthly average of
$40,469.06.

15
17. The additional taxable sales for the pre-January 1, 2008, report periods were calculated
by reducing the average monthly net estimated taxable sales by the taxable sales reported
to the Comptroller.

18. A 5% allowance for spoilage and theft was applied to determine the additional taxable
sales.

19. The resulting additional taxable sales were then multiplied by the applicable tax rate to
determine the tax due for pre-January 1, 2008, part of the audit period.

20. Petitioner Isba was the president of Petitioner SL

21. Petitioner Isba signed checks for remitting sales and use tax payments during the audit
period.

22. Petitioner Isba was responsible for depositing the store's sales proceeds from
February 27, 2007, through April 30, 2008.

23. Petitioner Isba was responsible for depositing the store's sales proceeds from
February 27, 2007, through April 30, 2008.

24. Petitioner Isba was responsible for ordering the store's inventory from February 27, 2007,
through April 30, 2008.

25. Petitioner Isba was responsible for payment of the store's inventory purchases from
February 27, 2007, through April 30, 2008.

26. Petitioner Isba was the person who received the monthly bank statements from
February 27, 2007, through April 30, 2008.

27. Petitioner lsba's responsibility for these tasks ended on May 1, 2008, when he entered
into an agreement to sell the company to his employees Yassien Siam and
Sandra Salazar.

28. Mr. Siam assumed responsibility for these tasks from May 1, 2008, until the end of the
audit period.

29. On April 1, 2011, the Staff issued to Petitioner SI a Texas Notification of Audit Results
assessing tax, the standard 10% penalty, the additional 50% fraud penalty, and accrued
interest, totaling $112,381.02, with $64,336.87 attributable to tax.

30. Petitioner SI timely requested redetermination.

31. Staff also issued a jeopardy determination on March 30, 2011, against Petitioner Isba,
pursuant to Tax Code § 111.0611, assessing personal liability for the tax liability of
Petitioner SI for the period May 1, 2007, through June 30, 2009.

16
32. The personal liability assessment consisted of tax, the standard 10% penalty, the
additional 50% penalty, and accrued interest through the date of notification. The
personal liability assessed against Petitioner Isba totaled $95,620.96, with $55,168.87
attributable to tax.

33. Staff referred the cases to the State Office of Administrative Hearings for oral hearings.
Staff issued Notices of Hearing that contained a statement of the date, time, and place of
the hearings, a statement of the nature of the hearings; a statement of the legal authority
and jurisdiction under which the hearings were to be held; a reference to the particular
sections of the statutes and rules involved; and a short, plain statement of the matters
asserted.

34. The Administrative Law Judge (AU) ordered the cases joined.

35. The AU convened the hearing on August 12, 2013

36. The AU ordered the record closed on November 12, 2013.

37. The correct markup percentage that the auditor should have applied to the tobacco
purchases was 118.02%, which AP 122 directs should be used for years following 2007.

38. Applying the corrected markup percentage to the tobacco purchases produced estimated
tobacco sales of $100,550.67 (versus the $100,908.51 resulting from a markup of
118.44%).

39. The application of the corrected markup percentage to tobacco purchases reduced the
assessment of tax from $64,336.90 to approximately $64,305.

40. The original overall error rate for Petitioner Si's audit was 66.45%.

41. The AU has recalculated the error rate using the reduced principal amount of tax due.
The recalculated audit error rate is 66.44%, which was calculated by dividing the tax
assessed ($64,305) by the sum of the assessed tax and reported tax ($96,790.61).

IV. CONCLUSIONS OF LAW

1. The Comptroller has jurisdiction over this matter pursuant to Texas Tax Code ch. 111.

2. The State Office of Administrative Hearings has jurisdiction over matters related to the
hearing in this matter, including the authority to issue a proposal for decision with
findings of fact and conclusions of law pursuant to Texas Government Code ch. 2003.

3. Staff provided proper and timely notice of the hearing pursuant to Texas Government
Code ch. 2001.

17
4. The Comptroller is authorized to use the best information available to estimate a
taxpayer's liability when records are incomplete or unreliable. Tex. Tax Code Ann.
§ ll l.0042(d) and 34 Tex. Admin Code § 3.281(c).

5. Petitioner SI must show by a preponderance of the evidence that the audit was in error.
34 Tex. Admin. Code § l.40(2)(B).

6. The audit of Petitioner SI was performed based on the best information available.

7. The auditor erred in not using the correct percentage of 118.02% in marking up the
tobacco purchases in order to estimate tobacco sales. See AP 122.

8. The calculation of additional taxable sales should be adjusted by using the correct
markup percentage of 118.02% in marking up tobacco purchases.

9. The Comptroller is authorized to impose an additional 50% penalty if the failure to pay
tax or file a report when due was a result of fraud or an intent to evade the tax. Tex. Tax
Code Ann. § 111.061(b).

10. Staff bears the burden of proof to show by clear and convincing evidence that
Petitioner SI acted with intent to evade tax. 34 Tex. Admin. Code § l.40(1)(B).

11. Petitioner SI had the intent to evade tax required by Tex. Tax Code Ann. § ll l.061(b)(l),
but only for the report periods February 1, 2007, through April 30, 2008.

12. The record establishes by clear and convincing evidence that the gross underreporting of
tax was due to the intent to evade tax and that the imposition of the additional 50%
penalty was warranted, but only for the report periods February 1, 2007, through April
30, 2008. Tex. Tax Code Ann. § ll l.061(b)(l).

13. The additional 50% penalty should be deleted for the report periods May 1, 2008, through
June 30, 2009.

14. The assessment against Petitioner SI should be affirmed except for the adjustments
recommended in Conclusions of Law Nos. 8 and 13.

15. Texas Tax Code § 111.0611 imposes personal liability on an officer, manager, or director
of a corporation who "as an officer, manager, director, or partner, took an action or
participated in a fraudulent scheme or fraudulent plan to evade the payment of taxes."
The personal liability is for taxes, penalties, including an additional 50% penalty and
interest that are due from the corporation. Tex. Tax Code Ann. §111.0611(a).

16. Actions that indicate a fraudulent scheme or fraudulent plan to evade the payment of
taxes include filing, or causing to be filed, a fraudulent tax return or report with the
Comptroller on behalf of the business entity, or filing, or causing to be filed, a tax return

18
 or report with the Comptroller on behalf of the business entity that contains an
intentionally false statement that results in the amount of the tax due exceeding the
amount of tax reported by 25% or more. Tex. Tax Code Ann. § ll l.06ll(b)(l), (3).

17. Staff established that Petitioner lsba was personally liable under Texas Tax Code
§ 111.0611 for the assessment made against Petitioner SI, but only for the report periods
May 1, 2007, through April 30, 2008.

18. The personal liability assessment against Petitioner Isba for report periods May 1, 2008,
through June 30, 2009, should be deleted.

19. The assessment against Petitioner Isba should be upheld, subject to the deletion
recommended in Conclusion of Law No. 18 and to the adjustment to the underling
corporate tax assessment against Petitioner SI recommended in Conclusion of Law No. 8.

19
Hearing Nos. 106,815 and 107,006

ORDER OF THE COMPTROLLER

On December 12, 2013, the State Office of Administrative Hearings' Administrative Law
Judge (AU), Peter Brooks, issued a Proposal for Decision in the above-referenced matters to
which Tax Division filed Exceptions on December 17, 2013. The Comptroller has considered
the Exceptions and the AU' s recommendation letter. The Comptroller has determined that the
AU' s Proposal for Decision, except for minor changes to correct typographical or clerical errors,
should be adopted without change and this Decision represents the ruling thereon.

The above Decision resulting in Petitioners' liabilities as set out in Attachments A, which
are incorporated by reference, is approved and adopted in all respects. The Decision becomes
final twenty days after the date Petitioners receive notice of this Decision, and the total sum of
the tax, penalty, and interest amounts is due and payable within twenty days thereafter. If such
sum is not paid within such time, an additional penalty of ten percent of the taxes due will
accrue, and interest will continue to accrue. If either party desires a rehearing, that party must
file a motion for rehearing, which must state the grounds for rehearing, no later than twenty days
after the date Petitioners receive notice of this Decision. Notice of this Decision is presumed to
occur on the third day after the date of this Decision.

Signed on this id'day of June 2014.

SUSAN COMBS
Texas Comptroller of Public Accounts

20
00-739

(Rev 9 -96/9)

TEXAS NOTIFICATION OF HEARINGS RESULTS - Attachment A STATEMENT DATE
June 17, 2014

Taxpayer Number Audit Period Hearing Number
xxxxxxxxxxx 2/1/07 THRU 6/30/09 106815

Type of Tax
Limited Sales, Excise, and Use

FIGURES WERE AMENDED

STATE LOCAL TOTAL
TAX $48,676.69 $15,576.62 $64,253.31
PENALTY 18,768.89 6,006.07 24,774.96
INTEREST THRU STATEMENT DATE 13.787.27 4 411.94 18,199.21

TOTAL DUE AS OF STATEMENT DATE $81,232.85 $25,994.63 $107,227.48

Additional 50% Penalty is waived per the Proposal for Decision. Interest will continue to accrue at $ 7.48 per day
after 6/17/14 through the date of payment.

A 10% penalty will be assessed on tax still due 43 days after the Order of the Comptroller (TEX. TAX CODE ANN.
SEC. 111.0081 (c).

For payment information call 1-800-531-5441, ext. 3-3900 toll free nationwide, or call 512/463-3900.

Make your check payable to STATE COMPTROLLER and mail to Comptroller of Public Accounts, 111 E. 1ylh
Street, Austin, Texas 78774-0100.

* Per annum interest rates are subject to change on January 151 of each year. For more interest rate
information, refer to Publication 98-304, call 1-877-447-2834, or refer to
http://www.window.state.tx.us/taxinfo/int rate.html

(Cut And Return Bottom Portion With Payment)

00-240
TEXAS NOTIFICATION OF HEARING RESULTS Hearing Number
- Attachment A 106815
STATEMENT DATE
June 17, 2014

Type of Tax
Limited Sales, Excise, and Use

Taxpayer Name & Mailing Address
SANADCO, INC.
xxxxxxxxxxxxxxxxxx
xxxxxxxxxx TX xxxxxxxxxx Amount of Your Payment

*Tcode *Taxpayer Number *Period *Audit *Type *State Amount *Type *Local Amount
26040 xxxxxxxxxxx 0906 001 02 81232.85 04 25994.63
 Sanadco, Inc.
Arlington, TX
Taxpayer Number xxxxxxxxxxx

AMENDED AUDIT REPORT

The audit was amended in accordance with Hearing No. 106,815 and Proposal for
Decision dated December 12, 2013.

Tatiana Romanova
Auditor
 Sanadco, Inc.
Arlington, TX
Taxpayer Number xxxxxxxxxxx

AMENDED INDEX TO WORKING PAPERS

DESCRIPTION PAGES

Adjustment Report 1

Tax Adjustment Summary 1

EXAM 20 ADDITIONAL TAXABLE SALES (0702 THRU 0804)-
AMENDED

Exam Summary - Detail 1
Detail Report 1
Exam 20A -Additional Taxable Sales Calculation - Amended 1
Exam 20B - Estimated Taxable Sales Calculation - Amended 1

EXAM 21 ADDITIONAL TAXABLE SALES (0805 THRU 0906) -
AMENDED

Exam Summary - Detail 1
Detail Report 1
Exam 21A - Additional Taxable Sales Calculation - Amended 1
 DATE: 05/15/2014 STATE OF TEXAS PAGE 1
PGM : T73725 COMPTROLLER OF PUBLIC ACCOUNTS TYPE: 1
USER: ADRI455 ADJUSTMENT REPORT WI 5009996522172

TAX TYPE: SALES AND USE TAX

TAXPAYER NAME: SANADCO, INC. TAXPAYER NUMBER: 3-20141-4515-8
ADDRESS: xxxxxxxxxxxxxxxxx CALCULATION DATE: 05-15-2014
xxxxxxxxxx, TX PERIODS: 0702 THRU 0906
xxxxxxxxxx

CR. ADJUST:
FILING APPLIED/ ADJUSTED ADJUSTED ADJUSTED BALANCE
PERIOD TAX PENALTY INT/CR. INT TRANSFERRED TAX PENALTY INT/CR.INT DUE

0702 3'091.04 309.10 1,135.92 .00 3,091.04 309.10 1,135.92 4,536.06
0703 3,048.64 304.86 1,097.93 .00 3,048.64 304.86 1,097.93 4,451.43
0704 3,019.67 301.97 1,063.77 .00 3,019.67 301.97 1,063.77 4,385.41
0705 3,001.45 300 .14 1,033.78 .00 3,001.45 300.14 1,033.78 4,335.37
0706 3,014.72 301.47 1,016.19 .00 3,014.72 301.47 1,016.19 4,332.38
0707 3,009.04 300.90 990.64 .00 3,009.04 300.90 990.64 4,300.58
0708 3,025.21 302.52 972.20 .00 3,025.21 302.52 972.20 4,299.93
0709 3,036.76 303.68 951.28 .00 3,036.76 303.68 951.28 4,291.72
0710 3,053.75 305.37 933.72 .00 3,053.75 305.37 933.72 4,292.84
0711 3,073.06 307.31 920.23 .00 3,073.06 307.31 920.23 4,300.60
0712 3,103.42 310.34 905.54 .00 3,103.42 310.34 905.54 4,319.30
0801 489.51 48.95 139.74 .00 489.51 48.95 139.74 678.20
0802 671.04 67.10 187.33 .00 671.04 67.10 187.33 925.47
0803 1,001.98 100.20 272.49 .00 1,001.98 100.20 272.49 1,374.67
0804 1,060.02 106.00 280.86 .00 1,060.02 106.00 280.86 1,446.88
0805 1,687.79 168.78 436.17 .00 1,687.79 168.78 436.17 2,292.74
0806 1,571.03 157.10 395.01 .00 1,571.03 157.10 395.01 2,123.14
0807 1,904.37 190.44 465.52 .00 1,904.37 190.44 465.52 2,560.33
0808 1,684.29 168.43 399.58 .00 1,684.29 168.43 399.58 2,252.30
0809 1,658.84 165.88 383.07 .00 1,658.84 165.88 383.07 2,207.79
0810 1,359.23 135.92 307.04 .00 1,359.23 135.92 307.04 1,802.19
0811 1,289.17 128.92 286.56 .00 1,289.17 128.92 286.56 1,704.65
0812 1,794.21 179.42 392.34 .00 1,794.21 179.42 392.34 2,365.97
0901 1,108.03 110.80 238.55 .00 1,108.03 110.80 238.55 1,457.38
0902 1,419.06 141.91 300.89 .00 1,419.06 141.91 300.89 1,861.86
0903 1,776.94 177.69 370.36 .00 1,776.94 177.69 370.36 2,324.99
0904 3,803.69 380.37 779.06 .00 3,803.69 380.37 779.06 4,963.12
0905 3,426.40 342.64 689.02 .00 3,426.40 342.64 689.02 4,458.06
0906 3,070.95 307.09 607.53 .00 3.070.95 301.09 607.53 3,985.57

TOTAL 64,253.31 6,425.30 17,952.32 .00 64,253.31 6,425.30 17,952.32 88,630.93

ADDITIONAL PENALTY WAS ASSESSED ON 05-15-2014 18,349.66 18,349.66

YOUR NEW BALANCE: $ 64,253.31 24,774.96 17,952.32 106,980.59

ADDITIONAL INTEREST OF 7.481655 PER DAY ACCRUES ON A TAX BALANCE OF $ 64,253 .31 FROM 05-16-2014 THRU PAYMENT DATE

AMOUNT ACCRUING INTEREST AT VARIABLE RATE IS 64,253.31.*

* PER ANNUM INTEREST RATES ARE SUBJECT TO CHANGE ON JANUARY lST OF EACH YEAR. FOR INTEREST INFORMATION, REFER TO
PUBLICATION 98-304, OR CALL 1-877-447-2834, OR GO TO HTTP://WWW.WINDOW.STATE.TX.US/TAXINFO/INT_RATE.HTML
----------------------------------------------"' '" "' ' Tatiana Romanova - 04/08/2014
SANADCO, INC.
TP#: xxxxxxxxxxx
FORT WORTH, TX
TAX ADJUSTMENT SUMMARY
Page 1of 1
Total
State City Transit County SPD Combined
Exam Exam Name Exam Category
4,448.38 2,224.24 0.00 2,224.24 0.00 36,699.31
20 ADDITIONAL TAXABLE SALES (0702 Sales 27,802.45
THAU 0804) - AMENDED
3,339.88 1,669.94 0.00 1,669.94 0.00 27,554.00
21 ADDITIONAL TAXABLE SALES (0805 Sales 20,874.24
THAU 0906) - AMENDED
$ 7,788.26 $ 3,894.18 $ 0.00 $ 3,894.18 $ 0.00 $ 64,253.31
Total Tax Adjustment: $ 48,676.69
- -

Tax on Sales: 64,253.31

Total Tax Adjustment: $ 64,253.31
SANADCO, INC. Tatiana Romanova - 04/08/2014
TP#: xxxxxxxxxxx
FORT WORTH, TX
EXAM SUMMARY - DETAIL Page 1of 1

EXAM: 20 ADDITIONAL TAXABLE SALES (0702 THAU 0804) - AMENDED
Taxable Tax Rate Tax Adjustment (2)

Amount (1
STATE 27,802.45
0.06250
0.0625000 444,839.14
$ 27,802.45

TOTAL AUTHORITY: STATE

CITY
0.01000 4,448.38
0.0100000 444,839.14
$ 4,448.38

TOTAL AUTHORI TY: CITY

TRANSIT
0.00500 2,224.24
0.0050000 444,839.14
$ 2,224.24

TOTAL AUTHORITY: TRANSIT

SPD
0.00500 2,224.24
0.0050000 444,839.14
$ 2,224.24

TOTAL AUTHORITY: SPD
TOTAL TAX ON EXAM 20 $ 36,699.31

Total Tax Adjustment for each Authority forwarded to
Tax Adjustment Summary.

(1) Taxable Amounts for each tax rate are totaled and forwarded from the Detail Report.
(2) Tax Adjustment equals Taxable Amount times Tax Rate. Tax Adjustment amounts are reflected on a summary
level and may vary due to rounding. Actual Tax Adjustments are calculated and applied on a report period basis.
SANADCO, INC. Tatiana Romanova - 04/08/2014
FORT WORTH, TX TP#: xxxxxxxxxxx
DETAIL REPORT - EXAM 20 ADDITIONAL TAXABLE SALES (0702 THRU 0804) - AMENDED Page 1 of 1

ID Name Location Reference Description Comment Taxable Amt Tax Date S City County Transit SPD Comb FN
4059T- 1 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 37.467.09 3,091.03 02101/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 2 UNKNOWN FORT WORTH E*M 20A ADDITIONAL AP 122/HB11 36,953.09 3,048.63 03101/2007 Y FORTWO NONE SCCFOR MTAFOA NONE
TAXABLE SALES ESTIMATE
4059T- 3 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 36,602.09 3,019.67 04/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 4 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 36,381.09 3,001.44 05/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 5 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 1221HB11 36,542.09 3,014.72 06/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 6 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 36.473.09 3,009.03 07/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 7 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 36,669.09 3,025.20 08/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 8 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 1221HB11 36,809.09 3,036.75 09/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 9 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 37,015.09 3,053.74 10/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 10 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 37,249.09 3,073.05 11/01/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 11 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 1221HB11 37,617.09 3,103.41 12101/2007 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 12 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 1221HB11 5,933.49 489.51 01/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 13 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 8,133.68 671.03 02101/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 14 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 12,145.15 1,001.97 03101/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE
4059T- 15 UNKNOWN FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 12,848.83 1,060.03 04/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
TAXABLE SALES ESTIMATE

Estimate Exam Summary Total $444,839.14 $36,699.21 Taxable Amount Forwarded to Exam Summary - Detail

Exam Comment:
THIS EXAM CONTAINS ADDITIONAL TAXABLE SALES FOR THE PERIODS FOR WHICH ASSESSMENT OF ADDITIONAL PENALTY WAS UPHELD IN ALJ'S DECISION. IT IS
SEPARATED FROM THE PERIODS FOR WHICH THE ADDITIONAL PENALTY WAS WAIVED.
Sanadco, Inc. Exa m 20A TNR
Fort Worth, TX TP # xxxxxxxxxxx
Additional Taxable Sales Calculation - AM ENDED Page 1of 1

A B c D E F
Average Estimated Estimated
Estimated Taxa ble Taxable Sales after Total Estimated Reported Taxable After BART Additional
Period Sales Allowa nce Taxable Sales Taxa ble Sales Reported Assessment Taxa ble Sales
From Exa m 20B Exam 20B A+B History C-D BART E-F
0702 40,434.09 40,434.09 2,967.00 37,467.09 37,467.09
0703 40,434.09 40,434.09 3,481.00 36,953.09 36,953.09
0704 40,434.09 40,434.09 3,832.00 36,602.09 36,602.09
0705 40,434.09 40,434.09 4,053.00 36,381.09 36,381.09
0706 40,434.09 40,434.09 3,892.00 36,542.09 36,542.09
0707 40,434.09 40,434.09 3,961.00 36,473.09 36,473.09
0708 40,434.09 40,434.09 3,765.00 36,669.09 36,669.09
0709 40,434.09 40,434.09 3,625.00 36,809.09 36,809.09
0710 40,434.09 40,434.09 3,419.00 37,015.09 37,015.09
0711 40,434.09 40,434.09 3,185.00 37,249.09 37,249.09
0712 40,434.09 40,434.09 2,817.00 37,617.09 37,617.09
0801 13,846.76 13,846.76 2,571.00 11,275.76 5,342.27 5,933.49
0802 18,958.98 18,958.98 2,431.00 16,527.98 8,394.30 8,133.68
0803 28,258.26 28,258.26 2,561.00 25,697.26 13,552.11 12,145.15
0804 29,942.78 29,942.78 3,589.00 26,353.78 13,504.95 12,848.83
Totals 444,774.99 91,006.78 535,781.77 50,149.00 485,632.77 40,793.63 444,839.14

Note: periods 0702 though 0804 are subject to the additiona l pena lty per AU's decision and th us are separated from the periods
on which additional penalty will be waived.
Sanadco, I nc. Exa m 20B TNR
Fort Worth, TX TP # xxxxxxxxxxx
Estimated Taxa ble Sales Ca lcu lation - AM EN DE D Page 1of 1
A B c D E F G H I J
Estimated Estimated
Alcohol Alochol Estimated Tobacco Tobacco Estimated Alcohol and Estimated Taxable Sales
Period Pu rchases Ma rkup Alcohol Sales Pu rchases Ma rku p Tobacco Sales Tobacco Sales Product Mix Taxa ble Sales after Allowance
AP 122 A8 ii AP 122 AP 122
From HB 11Reports Ma rkup AxB Reports Markup Dx E C+F Prod uct Mix G/ H I x .95
0801 5,092.00 124.07% 6,317.64 1,316.00 118.02% 1,553.14 7,870.79 54.00% 14,575.53 13,846.76
0802 6,247.00 124.07% 7,750.65 2,564.00 118.02% 3,026.03 10,776.69 54.00% 19,956.83 18,958.98
0803 7,648.00 124.07% 9,488.87 5,570.00 118.02% 6,573.71 16,062.59 54.00% 29,745.53 28,258.26
0804 9,644.00 124.07% 11,965.31 4,283.00 118.02% 5,054.80 17,020.11 54.00% 31,518.72 29,942.78
0805 17,590.00 124.07% 21,823.91 4,503.00 118.02% 5,314.44 27,138.35 54.00% 50,256.21 47,743.40
0806 18,495.00 124.07% 22,946.75 1,992.00 118.02% 2,350.96 25,297.70 54.00% 46,847.60 44,505.22
0807 20,908.00 124.07% 25,940.56 3,981.00 118.02% 4,698.38 30,638.93 54.00% 56,738.76 53,901.82
0808 16,052.00 124.07% 19,915.72 6,050.00 118.02% 7,140.21 27,055.93 54.00% 50,103.57 47,598.39
0809 16,247.00 124.07% 20,157.65 5,505.00 118.02% 6,497.00 26,654.65 54.00% 49,360.47 46,892.45
0810 12,920.00 124.07% 16,029.84 4,817.00 118.02% 5,685.02 21,714.87 54.00% 40,212.72 38,202.08
0811 12,145.00 124.07% 15,068.30 4,576.00 118.02% 5,400.60 20,468.90 54.00% 37,905.36 36,010.10
0812 17,194.00 124.07% 21,332.60 6,346.00 118.02% 7,489.55 28,822.15 54.00% 53,374.34 50,705.63
0901 9,989.00 124.07% 12,393.35 4,572.00 118.02% 5,395.87 17,789.23 54.00% 32,943.01 31,295.86
0902 13,322.00 124.07% 16,528.61 5,307.00 118.02% 6,263.32 22,791.93 54.00% 42,207.27 40,096.91
0903 14,367.00 124.07% 17,825.14 9,045.00 118.02% 10,674.91 28,500.05 54.00% 52,777.86 50,138.97
0904 20,247.00 124.07% 25,120.45 4,495.00 118.02% 5,305.00 30,425.45 54.00% 56,343.43 53,526.26
0905 17,558.00 124.07% 21,784.21 5,862.00 118.02% 6,918.33 28,702.54 54.00% 53,152.86 50,495.21
0906 16,736.00 124.07% 20,764.36 4,414.00 118.02% 5,209.40 25,973.76 54.00% 48,099.55 45,694.57
Totals 252,401.00 313,153.92 85,198.00 100,550.68 413,704.60 766,119.63 727,813.65
Average Monthly Estimated Taxable Sales = Estimated Taxable Sales after a llowance I Months With Available Information
Average Monthly Estimated Taxable Sales = 40,434.09

Additional Taxa ble Sales for the period of 0702 through 0804 will be forwarded to Exa m 20A.
Additional Taxa ble Sales for the period of 0805 through 0804 will be forwarded to Exa m 21A.
*Average Monthly Estimated Taxable Sales will be forwarded to Exam 20A
SANADCO, INC. Tatiana Romanova - 04/0812014
TP#: xxxxxxxxxxx
FORT WORTH, TX
EXAM SUMMARY - DETAIL Page 1of 1

EXAM: 21 ADDITIONAL TAXABLE SALES (0805 THAU 0906) - AMENDED
Taxable Tax Rate Tax Adjustment (2)

Amount (1
STATE 20,874.24
0.06250
0.0625000 333,987.89
$ 20,874.24

TOTAL AUTHORITY: STATE

CITY
0.01000 3,339.88
0.0100000 333,987.89
$ 3,339.88

TOTAL AUTHORITY: CITY

TRANSIT
0.00500 1,669.94
0.0050000 333,987.89
$ 1,669.94

TOTAL AUTHORITY: TRANSIT

SPD
0.00500 1,669.94
0.0050000 333,987.89 $ 1,669.94

TOTAL AUTHORI TY: SPD
TOTAL TAX ON EXAM 21 $ 27,554.00

Total Tax Adjustment for each Authority forwarded to
Tax Adjustment Summary.

(1) Taxable Amounts for each tax rate are totaled and forwarded from the Detail Report.
(2) Tax Adjustment equals Taxable Amount times Tax Rate. Tax Adjustment amounts are reflected on a summary
level and may vary due to rounding. Actual Tax Adjustments are calculated and applied on a report period basis.
 Tatiana Romanova • 04/0812014
SANADCO, INC.
TP#: xxxxxxxxxxx
FORT WORTH, TX
Page 1 of 1
DETAIL REPORT · EXAM 21 ADDITIONAL TAXABLE SALES (0805 THAU 0906) ·AMENDED

Taxable Amt Tax Date S City County Transit SPD Comb FN
ID Name Location Reference Description Comment
1,687.79 05/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
EXAM 20A ADDITIONAL AP 122/HB11 20,458.12
4059T- 16 UNKNOWN FORT WORTH
TAXABLE SALES ESTIMATE
1,571.04 06/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
Elql.M 20A ADDITIONAL AP 122/HB11 19,042.88
4059T- 17 UNKNOWN FORT WORTH
TAXABLE SALES ESTIMATE NONE
23,083.17 1,904.36 07/01/2008 Y FORTWO NONE SCCFOR MTAFOR
FORT WORTH EXAM20A ADDITIONAL AP 122/HB11
4059T- 18 UNKNOWN TAXABLE SALES ESTIMATE
1,684.28 08/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
EXAM20A ADDITIONAL AP 122/HB11 20,415.56
4059T- 19 UNKNOWN FORT WORTH
TAXABLE SALES ESTIMATE SCCFOR MTAFOA NONE
AP 122/HB11 20,107.07 1,658.83 09/01/2008 Y FORTWO NONE
FORT WORTH EXAM 20A ADDITIONAL
4059T- 20 UNKNOWN TAXABLE SALES ESTIMATE
1,359.23 10/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
FORT WORTH EXAM 20A ADDITIONAL AP 122/HB11 16,475.47
4059T- 21 UNKNOWN TAXABLE SALES ESTIMATE
1,289.18 11/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
FORT WORTH EXAM20A ADDITIONAL AP 122/HB11 15,626.37
4059T- 22 UNKNOWN TAXABLE SALES ESTIMATE
1,794.21 12/01/2008 Y FORTWO NONE SCCFOR MTAFOR NONE
FORT WORTH EXAM20A ADDITIONAL AP 122/HB11 21,748.06
4059T- 23 UNKNOWN TAXABLE SALES ESTIMATE
1,108.03 01/01/2009 Y FORTWO NONE SCCFOR MTAFOR NONE
FORT WORTH EXAM20A ADDITIONAL AP 122/HB11 13,430.65
4059T- 24 UNKNOWN TAXABLE SALES ESTIMATE
1,419.06 02/01/2009 Y FORTWO NONE SCCFOR MTAFOR NONE
EXAM20A ADDITIONAL AP 122/HB11 17,200.72
FORT WORTH
4059T- 25 UNKNOWN TAXABLE SALES ESTIMATE
1,776.95 0310112009 Y FORTWO NONE SCCFOR MTAFOR NONE
EXAM20A ADDITIONAL AP 122/HB11 21,538.78
FORT WORTH
4059T- 26 UNKNOWN TAXABLE SALES ESTIMATE
3,803.68 04/01/2009 Y FORTWO NONE SCCFOR MTAFOR NONE
EXAM20A ADDITIONAL AP 122/HB11 46,105.26
FORT WORTH
4059T- 27 UNKNOWN TAXABLE SALES ESTIMATE
3,426.41 05101/2009 Y FORTWO NONE SCCFOR MTAFOR NONE
EXAM 20A ADDITIONAL AP 122/HB11 41,532.21
FORT WORTH
4059T- 28 UNKNOWN TAXABLE SALES ESTIMATE NONE
3,070.94 06/01/2009 Y FORTWO NONE SCCFOR MTAFOR
ADDITIONAL AP 122/HB11 37,223.57
FORT WORTH EXAM 20A TAXABLE SALES ESTIMATE
4059T- 29 UNKNOWN

- - -
$333,987.89 $27,553.99 Taxable Amount Forwarded to Exam Summary - Detail
Detail Exam Summary Total

Exam Comment:
THIS EXAM CONTAINS ADDITIONAL TAXABLE SALES FOR THE PERIODS FOR WHICH ADDITIONAL PENALTY WILL BE WAIVED PER ALJ'S DECISION.
oo-739
Re"9 -9619) p.E.S\.ll\S • p.,ttacnmen\ A
TEXAS NOT\f\CATION OF HE.AP.\NGS

iype onax
SALES. exc\SE ANO use.

FIGURES WERE UPHELD • I

·11b edited when theY become available. You

::;: .:: : ::. ::::::: : ::: I:;;::;: :.::;"' llY (S12)......... '"'·-on·on
TOTAL DUE AS OF STATEMENT DATE
al

updated statements.
llMIBll•through the date of payment. * )
l918per day after
(Interest will continue to accrue at

A 10% penalty will be assessed on taX •till due 43 days atter th•Order ot lhe comptroller (TEX. TAX CODE

1-800-531-5441. 3-3900
ANN. SEC. 111.0081 (c).
For payment Information catl ext. toil tree nationwide. or call 5121463-3900-

Make your check payable to STATE COMPTROLLER and mailto Comptroller ol Public AccounlS, 111 E. 11"

Stree\, Austin,Texas 78774-0100.

1
; er anum interest rates are subject to cha
= i=r t Publication 98-304, call !977
: - a3r4y st of each year. For more interest ra\e
w.s ate.tx.us/taxinfo/int_rate.html ' or refer to
(

'
 EXHIBIT C

SANADCO ORDER DENYING MTN FOR REHEARING
 HEARING NO. 106,815

RE: SANADCO, INC. § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
TAXPAYER NO: xxxxxxxxxxx § SUSAN COMBS
§ Texas Comptroller of Public Accounts
AUDIT OFFICE: Fort Worth 2I40 §
§ ISREAL MILLER
AUDIT PERIOD: February 1, 2007 § Representing Tax Division
THROUGH June 30, 2009 §
§ SAMUEL T. JACKSON
Sales And Use Tax/ROT § Representing Petitioner

HEARING NO. 107,006

RE: MAHMOUD AHMED ISBA § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
TAXPAYER NO: xxxxxxxxxxx § SUSAN COMBS
§ Texas Comptroller of Public Accounts
AUDIT OFFICE: Advanced Processes 2S52 §
§ ISREAL MILLER
AUDIT PERIOD: May 1, 2007 § Representing Tax Division
THROUGH June 30. 2009 §
§ SAMUEL T. JACKSON
Sales And Use Tax/RDT § Representing Petitioner

ORDER DENYING MOTION FOR REHEARING

On July 8, 2014, Petitioners timely filed a Motion for Rehearing concerning the June 16,
2014 Comptroller's Decision issued in the above-referenced matter. On July 8, 2014, the Tax
Division filed its Reply opposing Petitioners' Motion.

Having considered Petitioners' Motion and the Tax Division's Reply, it is concluded that
the Motion for Rehearing does not raise any legal or factual grounds that would affect the
decision of the Comptroller. It is accordingly ORDERED that the Motion for Rehearing be, and
is hereby, DENIED.

The Comptroller's Decision becomes final on the date of this Order Denying Motion for
Rehearing, and the total sum of the tax, penalty, and interest is due and payable within twenty
(20) days thereafter. If such sum is not paid timely, an additional penalty of ten percent of the
taxes due will accrue and interest will continue to accrue until the taxes owed are paid.

EXHIBIT C
Sanadco, Inc. and Mahmoud Ahmed Isba
Hrg. Nos. 106,815 and 107,006
Page 2

All parties of record are being notified by copy of this Order.

Signed on this \ .:s-tlaay of July 2014.

SUSAN COMBS
Comptroller of Public Accounts
 EXHIBIT D

BROADWAY COMPTROLLER DECISION
 S U S A N
TE x A s c 0 M p T R 0 L L E R 0I p u B L Ic A c c 0 u N T s
C 0 M B S P.O. Box 13528 .AUSTIN, TX 7871 h3528

October 31, 2014

Mr. Samuel T. Jackson
Law Office of Samuel T. Jackson
P.O. Box 170633
Arlington, Texas 76003-0633

Re: Broadway Grocery, Inc.
Hearing No. 109,293
Taxpayer No. xxxxxxxxxxx

The Comptroller's Decision (Decision) for the above-referenced hearing, which resulted
in a tax liability, is enclosed. Except for minor changes to correct typographical or
clerical errors, the Decision is identical to the Proposal for Decision issued on August 8,
2014.

Unless a motion for rehearing is filed by November 24, 2014, the Decision will become
final. Your total liability resulting from the hearing is shown in Attachment A to the
Decision; please note, however, that additional daily interest will continue to accrue until
you have paid the total liability and any additional accrued interest. Your total liability,
plus any additional accrued interest is due twenty days after the Decision becomes final.
If you fail to timely file a motion for rehearing or pay the total liability, as well as any
additional accrued interest, within twenty days after the date the Decision becomes final,
an additional 10% penalty will be assessed on the tax due and interest will continue to
accrue.

A motion for rehearing can only be filed with the Special Counsel for Tax Hearings at
P.O. Box 13528, Austin, Texas 78711-3528 or by facsimile at 512-936-6190. However, a
copy must be filed with the Assistant General Counsel in the Administrative Hearings
Section. If you have any questions about the procedures for filing a motion for rehearing
or a waiver of the right to file a motion for rehearing, you may contact the Assistant
General Counsel, Isreal Miller, by calling toll-free 800-531-5441, extension 3-4612. The
direct number is 512-463-4612.

Chris Kadas
Special Counsel for Tax Hearings
EXHIBIT D
cc: Isreal Miller, Representing Tax Division
Broadway Grocery, Inc.

WWW.WINDOW.STATE.TX. US 51 2·463·4000 • TOLL FREE: I 800·53 I·5441 • FAX: !5 1 2·453·495!5
 SOAH DOCKET NO. XXX-XX-XXXX.26
CPA HEARING NO. 109,293

RE: BROADWAY GROCERY, INC. § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
TAXPAYER NO: xxxxxxxxxxx §
§ SUSAN COMBS
AUDIT OFFICE: San Antonio 2I60 § Texas Comptroller of Public Accounts
§
AUDIT PERIOD: May 1, 2008 § ISREAL MILLER
THROUGH December 31, 2011 § Representing Tax Division
§
Sales And Use Tax/RDT § SAMUEL T. JACKSON
§ Representing Petitioner

COMPTROLLER'S DECISION

The Tax Division (Staff) of the Texas Comptroller of Public Accounts (Comptroller)
audited Broadway Grocery, Inc.'s (Petitioner) convenience store business for compliance with
sales and use tax laws and made an assessment that includes a 50% additional penalty. Petitioner
requested a redetermination of the audit assessment, raising contentions with regard to the
average mark-up percentages applied in the audit and arguing that the audit should be cancelled
or abated because it is based on improperly promulgated administrative rules. Petitioner also
contends that the 50% additional penalty, the 10% late-filed penalty, and the accrued interest
should be deleted. In the Proposal for Decision (PFD), the Administrative Law Judge (AU)
recommends that the assessment, including the 50% penalty, be affirmed.

I. PROCEDURAL IDSTORY, NOTICE, AND JURISDICTION

Staff referred the contested case to the State Office of Administrative Hearings and, on
January 27, 2014, issued a Notice of Hearing to Petitioner. Petitioner was represented by Samuel
T. Jackson, Law Office of Samuel T. Jackson. Staff was represented by Assistant General
Counsel Isreal Miller. AU Trevor Moore closed the contested case record at the conclusion of
the hearing on August 1, 2014. There are no issues of notice or jurisdiction; therefore, those
matters are set out in the Findings of Fact and Conclusions of Law without further discussion.
 II. REASONS FOR DECISION

A. Evidence

In addition to the pleadings filed by the parties while the case was pending before the
Comptroller, Staff presented the following exhibits:

1. 60-Day Notification Letter;
2. Texas Notification of Audit Results;
3. Penalty and interest waiver worksheet;
4. Audit Report; and
5. Audit Plan (including the Referral for Additional Penalty).

Petitioner submitted the following exhibits:

1. Order for Continuance and Abating Case, D-1-GV-13-000433 (126th District Court,
Travis County);
2. Order addressing Plea to the Jurisdiction, D-1-GV-13-000754 (200th District Court,
Travis County); and
3. State Officials' Motion for Protection and to Stay All Discovery, D-1-GN-13-004352
(200th District Court, Travis County).

The exhibits were admitted into the record without objection.

B. Staff Agreed Adjustments

Staff did not agree to make any adjustments to the audit.

C. Facts Established by the Evidence

Petitioner owns and operates a convenience store in San Antonio, Texas. The store
sells beer, tobacco products, and other items commonly found in convenience stores.
Mr. Shafeeq Khimani is Petitioner's president. Staff conducted an audit to verify
Petitioner's compliance with Texas sales and use tax laws in the audit period May 1, 2008
through December 31, 2011.

2
 On February 7, 2012, the auditor issued a letter addressed to Petitioner detailing the
records that would be necessary for completing the audit. When no response was received, the
auditor drafted a second letter to Petitioner detailing the records that would be necessary for
completing the audit on March 8, 2012. Petitioner subsequently provided the auditor
with purchase records for nine months of the audit period. Petitioner did not provide cash
register z-tapes or other sales records, stating that he did not have confidence in the accuracy of
the sales records and therefore did not keep them. The auditor notified Petitioner that, because
the records were incomplete, the audit would be estimated using the procedures outlined in Audit
Policy Memorandum 122 (AP 122).

On April 16, 2012, the auditor visited Petitioner's store and scheduled the retail price data
he collected. He compared those values to product costs shown on purchase invoices for March
and April 2012 and calculated the following average mark-ups: 42.47% for beer; 18.18% for
tobacco; 63.02% for soda; 59.03% for candy; and 58.67% for general merchandise. Using
vendor-reported data, the auditor scheduled Petitioner's beer and tobacco purchases. The auditor
also contacted Petitioner's soda vendors and received purchase records for the audit period. The
auditor then selected the most complete four months of purchase records from the nine that had
been provided by Petitioner, based on the auditor's judgment. Using the vendor data for
purchases of beer, tobacco, and soda, and Petitioner's invoices for purchases of candy and
general merchandise, the auditor calculated a product-mix ratio for beer and tobacco sales to all
taxable sales (74.4490%). Taxable sales were estimated by dividing estimated beer and tobacco
sales by the calculated product mix. Petitioner was allowed 5% for spillage and undocumented
losses. Allowances were also applied for food stamp sales in the months where records were
available (August 2010 through the end of the audit period). Credit for reported taxable sales
was then applied in computing the additional taxable sales for the audit period. On
July 17, 2012, Staff issued Petitioner a Texas Notification of Audit Results assessing tax, a 10%
late penalty, an additional 50% penalty, and interest accrued to the account. The overall audit
error rate was 34.99%.1 Petitioner requested redetermination.

1
The audit error calculation is based on the formula: assessed tax + (assessed tax + reported tax) = overall audit
error percentage.

3
D. ALJ's Analysis & Recommendation

The law requires retailers to keep records that reflect the total gross receipts from sales
and the total purchases of taxable items. See 34 Tex. Admin. Code § 3.281(b). When records
are inadequate to reflect the taxpayer's business operations, Staff is authorized to estimate a
taxpayer's liability based on the best information available. See Tex. Tax Code Ann.
§ ll1.0042(d).

In its Reply to the Position Letter, Petitioner asserts that the estimation of the audit was
not authorized because the records provided were sufficient to allow for an alternate
methodology. Petitioner argues that the auditor misrepresented the facts regarding the available
records in order to justify completing the audit utilizing estimation methodologies. However,
Petitioner failed to submit any testimony or evidence to substantiate its arguments. Assertions
that are made in pleadings are not evidence. See, e.g., Comptroller's Decision No. 104,430
(2011). Based on the evidence in the record, the AU finds that Staff demonstrated, prima facie,
that the use of estimation methodologies was authorized by statute.

The tax liability was estimated based on purchase records the auditor obtained from
Petitioner and on purchase data reported to the Comptroller by Petitioner's beer, tobacco, and
soft drink vendors per the estimation procedures outlined in AP 122. Petitioner contends that
AP 122 is an administrative rule that was not promulgated in compliance with the requirements
of the Administrative Procedures Act (APA), and therefore it argues that the audit assessment
should be dismissed.

Wholesalers and distributors of beer, wine, malt liquor, cigarettes, cigars, and tobacco
products are required to submit electronic reports, on a monthly basis, to the Comptroller. These
electronic reports are required by Texas Tax Code §§ 151.462, 154.212, and 155.105, which
were enacted as part of Tex. House Bill 11 (HB 11), 80th Leg., R. S., 2007. The vendor-reported
data is sometimes referred to as "HB 11 data." Prior to the passage of HB 11, the Audit Division
issued a memorandum titled Audit Policy 92 (AP 92). The memo provides guidance to auditors
in performing convenience store audits. After HB 11 was enacted, the Audit Division updated

4
the convenience store auditing procedures with the issuance of AP 122. The new memo requires
auditors to use HB 11 data information. AP 92 and AP 122 were recently reviewed by the
Austin Third Court of Appeals. See Sanadco, Inc. v. Office of the Comptroller of Public
Accounts, 03-11-00462-CV, 2013 Tex. App. LEXIS 12013 (Tex. App.-Austin Sept. 26, 2013,
no pet. h.).

In Sanadco, the taxpayer asserted that AP 92 and AP 122 were administrative rules that
were not promulgated in compliance with the requirements of the APA. Under the APA, a rule
is defined as "a state agency statement of general applicability that (i) implements, interprets, or
prescribes law or policy; or (ii) describes the procedure or practice requirements of a state
agency." Tex. Gov't Code Ann. § 2001.003(6)(A). The statutory definition excludes "a
statement regarding only the internal management or organization of a state agency and not
affecting private rights or procedures. " Tex. Gov't Code Ann. § 2001.003(6)(C). The
Comptroller argued that AP 92 and AP 122 are simply statements regarding the internal
management of the agency and that they do not impose any duties or requirements on
convenience-store owners. The court disagreed and held that "the directives in AP 92 and
AP 122 are in fact rules," and for that reason "we must also conclude that the district court had
jurisdiction" over the claim. Based on the Sanadco ruling, Petitioner contends the instant audit
should be cancelled or abated. The ALJ disagrees.

On October 3, 2013, the Comptroller filed a Motion for Rehearing and Reconsideration
in Sanadco. As of the writing of the PFD, the Court has not ruled on the motion. Therefore, the
Sanadco decision is not final. See Oscar Renda Contracting, Inc. v. Hands Supply Co., Inc.,
195 S.W.3d 772 (Tex. App.-Waco 2006, pet. denied) (Suit became final when the appellate
court's judgment of dismissal had "disposed of all issues and parties in the case and the court's
power to alter the judgment ha[d] ended."). The court will lose plenary power "30 days after the
court overrules all timely filed motions for rehearing or en bane reconsideration, and all timely
filed motions to extend time to file such a motion." Tex. Rule App. P. 19.l(b). Because the
Sanadco decision is not final, it has no precedential value. Therefore,. the ALJ gives it no weight
and Petitioner's request for abatement of the hearing is denied.

5
 The AU finds that the auditor used the best information available to complete an
estimated audit that was authorized by statute. Given that Petitioner failed to submit any
evidence addressing the calculation of the audit assessment, it clearly failed to demonstrate audit
error. See 34 Tex. Admin. Code § 1.40(2)(B).

With respect to whether the 50% additional penalty assessment is warranted in this
instance, Staff is required to provide clear and convincing evidence of fraud or intent to evade
tax. See Tex. Tax Code Ann. § lll.061(b) and 34 Tex. Admin. Code § 1.40(l)(B). The
Comptroller has held on many occasions that gross underreporting of taxable sales, along with
other factors or no plausible explanation, is sufficiently indicative of intent to evade the tax to
warrant the assessment of the fraud penalty. See, e.g., Comptroller's Decision No. 105,232
(2012). Petitioner failed to provide complete records, and the underreporting documented within
the audit constitutes gross error. See Tex. Tax Code Ann. § 111.205(b). Therefore, the AU
finds that Staff's evidence clearly and convincingly demonstrates that the underreporting
identified by the audit was the result of fraud or an intent to evade tax.

Because Petitioner is a corporate taxpayer, Staff must present facts that support
attributing the fraudulent actions to the corporation. For example, the Comptroller has held that
a corporate officer who was involved in day-to-day corporate business affairs and routinely
prepared or signed sales tax returns had knowledge of gross underreporting of tax and that
knowledge could be legally imputed to the corporation in establishing the requisite intent to
evade tax. See, e.g., Comptroller's Decision No. 45,735 (2006). Conversely, the Comptroller
has dismissed the 50% additional penalty assessment where the evidence failed to demonstrate
that there was any fraud on the part of corporate officers or that they acquiesced in fraudulent
activities conducted by corporate employees. See, e.g., Comptroller's Decision Nos. 31,500
(1994); 34,669 (1997) and 37,555 (1999).

The evidence addressing this issue consists of the Audit Documentation Report and the
Audit Referral Report for Additional Penalty. Neither Petitioner nor Staff addressed the
participation of Mr. Khimani in Petitioner's day-to-day operations or tax reporting. According to
Audit Referral Report for Additional Penalty, Petitioner's president is Shafeeq Khimani. In the

7
Audit Documentation Report and in the Referral, the auditor determined that Mr. Khimani was
solely responsible for the calculation, preparation, and filing of the sales tax returns for
Petitioner. As recorded in the audit plan and in the testimony of the auditor, Mr. Khimani
estimated the sales tax due every month during the audit period, signed and submitted the
returns, and disposed of the sales records. The ALJ finds that Staff has demonstrated, by clear
and convincing evidence, that the fraud identified in the audit should be attributed to the
corporation. Therefore, the 50% penalty should be upheld.

A 10% late penalty is automatically imposed on delinquent sales taxes. Tex. Tax Code
Ann. § 111.061. Staff has the discretionary authority to waive penalties if a taxpayer has
exercised reasonable diligence to comply with tax laws. Tex. Tax Code Ann. § 111.103.
Petitioner has the burden to establish reasonable diligence by a preponderance of the evidence.
See, e.g., Comptroller's Decision No. 102,695 (2010). Indetermining reasonable diligence, Staff
reviews the audit error rate, the taxpayer's audit history, the tax issues involved, changes in
Comptroller policy during the exam period, the size and sophistication of the taxpayer, whether
tax was collected and not remitted, whether returns were timely filed, the completeness of the
records, delinquencies in other taxes, and whether there was reliance on advice provided by the
Comptroller's office that caused imposition of penalty. 34 Tex. Admin. Code § 3.5(c); see also
Comptroller's Decision No. 101,976 (2010).

In this case, Petitioner failed to provide complete records, and the overall audit error rate
of 34.99% constitutes gross error. The ALJ finds that Petitioner has not demonstrated that it was
reasonably diligent in complying with the mixed beverage gross receipts tax laws and
recommends that penalty not be waived.

Petitioner also contends that interest waiver is warranted. Staff has discretionary
authority to waive an interest assessment any time a taxpayer exercised reasonable diligence in
complying with Tax Code requirements. Tex. Tax Code Ann. § 111.103. Staff may waive an
interest assessment when it was imposed as a result of undue delay caused by Comptroller
personnel, reliance on advice provided by the Comptroller's office, or natural disaster. 34 Tex.
Admin. Code § 3.5(d). To prevail, Petitioner must demonstrate, by a preponderance of the

6
evidence, that interest waiver is warranted. 34 Tex. Admin. Code § 1.40(2)(B). Petitioner has
not offered any evidence supporting its request for interest waiver. Therefore, the ALJ finds that
interest waiver is not warranted.

III. FINDINGS OF FACT

1. Broadway Grocery, Inc. (Petitioner) owns and operates a convenience store in
San Antonio, Texas.

2. The store sells beer, tobacco products, soda, candy, and other items commonly found in
convenience stores.

3. The Tax Division (Staff) of the Texas Comptroller of Public Accounts (Comptroller)
conducted an audit to verify Petitioner's compliance with Texas sales and use tax laws in
the audit period May 1, 2008 through December 31, 2011.

4. On February 7, 2012, the auditor drafted correspondence to Petitioner detailing the
records that would be necessary for completing the audit.

5. Due to a lack of response to the letter, on March 8, 2012, the auditor drafted a second
letter to Petitioner detailing the records that would be necessary for completing the audit.

6. Petitioner provided the auditor with nine months of purchase records. Petitioner did not
provide cash register z-tapes and refused to provide federal income tax returns.

7. The auditor notified Petitioner that, because the records were incomplete, the audit would
be estimated using the procedures of Audit Policy Memo 122 (AP 122).

8. On April 16, 2012, the auditor visited Petitioner's store and scheduled the retail price data
he collected. He compared those values to product costs shown on purchase invoices for
March and April 2012 and calculated the following average mark-ups: 42.47% for beer;
18.18% for tobacco; 63.02% for soda; 59.03% for candy; and 58.67% for general
merchandise.

9. Using vendor-reported data, the auditor scheduled Petitioner's beer and tobacco
purchases. The auditor also contacted Petitioner's soda vendors and received purchase
records for the audit period.

10. The auditor selected the most complete four months of purchase records from the nine
that had been provided.

9
11. Using the vendor data for purchases of beer, tobacco, and soda, and Petitioner's invoices
for purchases of candy and general merchandise, the auditor calculated a product-mix
ratio for beer and tobacco sales to all taxable sales (74.4490%).

12. Taxable sales were estimated by dividing estimated beer and tobacco sales by the
calculated product mix.

13. Petitioner was allowed 5% for spillage and undocumented losses, and allowances were
also applied for food stamp sales in the months where records were available (August
2010 through the end of the audit period). Credit for reported taxable sales was then
applied in computing the additional taxable sales for the audit period.

14. On July 17, 2012, Staff issued Petitioner a Texas Notification of Audit Results assessing
tax, a 10% late penalty, an additional 50% penalty, and interest accrued to the account.

15. The overall audit error rate was 34.99%.

16. Petitioner requested redetermination.

17. The vendor reported data utilized within the audit is frequently referred to as "HB 11
data." The reference relates to the fact that statutes that require vendors to report the data
to the Comptroller were enacted as part of Tex. House Bill 11, 80th Leg., R. S., 2007.

18. Prior to the passage of HB 11, Staff issued a memorandum titled Audit Policy 92 (AP
92), which provided guidance to auditors in performing convenience store audits.

19. After HB 11 was enacted Staff issued another memo to update the procedures. It was
entitled Audit Policy 122 (AP 122). The new memo requires auditors to use HB 11data
information.

20. AP 92 and AP 122 were recently reviewed by the Austin Third Court of Appeals. See
Sanadco, Inc. v. Office of the Comptroller of Public Accounts, 03-11-00462-CV, 2013
Tex. App. LEXIS 12013 (Tex. App.-Austin Sept. 26, 2013, no pet. h.).

21. In Sanadco, the taxpayer asserted (among other things) that AP 92 and AP 122 were
administrative rules that were not promulgated in compliance with the requirements of
the Administrative Procedures Act. The Comptroller argued that the memos are simply
statements regarding the internal management of the agency and that they do not impose
any duties or requirements on convenience-store owners. The court held that "the
directives in AP 92 and AP 122 are in fact rules," and for that reason "we must also
conclude that the district court had jurisdiction" over the claim.

22. On October 3, 2013, the Comptroller filed a Motion for Rehearing and Reconsideration
in Sanadco.

8
23. As of the writing of the PFD, the Sanadco court has not ruled on the Comptroller's
Motion for Rehearing and Reconsideration.

24. Staff referred the case to the State Office of Administrative Hearings (SOAR).

25. On January 27, 2014, Staff issued Notice of Hearing to Petitioner. The notice contained a
statement of the nature of the hearing; the date, time, and place of the hearing; a
statement of the legal authority and jurisdiction under which the hearing was to be held; a
reference to the particular sections of the statutes and rules involved; and a short, plain
statement of the matters asserted.

26. A hearing on the merits convened on August 1, 2014.

27. The Administrative Law Judge (ALJ) closed the contested case record at the conclusion
of the hearing.

IV. CONCLUSIONS OF LAW

1. The Comptroller has jurisdiction over this matter pursuant to Texas Tax Code ch. 111.

2. SOAR has jurisdiction over matters related to the hearing in this matter, including the
authority to issue a proposal for decision with findings of fact and conclusions of law
pursuant to Texas Government Code ch. 2003.

3. Staff provided proper and timely notice of the hearing pursuant to Texas Government
Code ch. 2001.

4. The law requires retailers to keep records that reflect the total gross receipts from sales
and the total purchases of taxable items. 34 Tex. Admin. Code § 3.28l(b).

5. When records are inadequate to reflect the taxpayer's business operations, Staff is
authorized to estimate a taxpayer's liability based on the best information available. Tex.
Tax Code Ann. § ll l.0042(d).

6. Factual assertions that are made in pleadings are not evidence. See, e.g., Comptroller's
Decision No. 104,430 (2011).

7. Based on the evidence in the record, the ALJ finds that Staff demonstrated, prima facie,
that the use of estimation methodologies was authorized by statute.

8. Wholesalers and distributors of beer, wine, malt liquor, cigarettes, cigars, and tobacco
products are required to submit electronic reports, on a monthly basis, to the Comptroller.
These electronic reports are required by Texas Tax Code §§ 151.462, 154.212, and
155.105, which were enacted as part of Tex. HB 11, 80th Leg., R. S., 2007.

11
9. Staff s evidence demonstrates, prima facie, that the audit was based on the best
information available. It is therefore Petitioner's burden to show audit error. See 34 Tex.
Admin. Code § l.40(2)(B).

10. Petitioner failed to demonstrate audit error. See 34 Tex. Admin. Code § l.40(2)(B).

11. The Sanadco decision is not final. See Oscar Renda Contracting, Inc. v. Hands Supply
Co., Inc., 195 S.W.3d 772 (Tex. App.-Waco 2006, pet. denied) (Suit became final when
the appellate court's judgment had "disposed of all issues and parties in the case and the
court's power to alter the judgment ha[d] ended.").

12. The Third Court of Appeals will lose plenary power over Sanadco "30 days after the
court overrules all timely filed motions for rehearing or en bane reconsideration, and all
timely filed motions to extend time to file such a motion." Tex. Rule App. P. 19.l(b).

13. Because the Sanadco decision is not final, it carries no precedential value.

14. The Comptroller has previously held that the AU does not have jurisdiction to determine
whether a state agency statement constitutes a rule as defined by the Administrative
Procedures Act. See Comptroller's Decision No. 105,002 (2011). See also Tex. Gov't
Code Ann. § 2001.003(6).

15. A taxpayer is entitled to submit a declaratory-judgment action to seek such a ruling, but
the action must be filed in Travis County district court. See Tex. Gov't Code Ann.
§ 2001.038; Combs v. Entertainment Publications, Inc. 292 S.W.3d 712, 720-21 (Tex.
App.-Austin 2009, no. pet.).

16. The Comptroller is authorized to impose an additional 50% penalty if the failure to pay
tax or file a report when due was a result of fraud or an intent to evade the tax. Tex. Tax
Code Ann. § ll l.061(b).

17. Staff is required to provide clear and convincing evidence of fraud or intent to evade tax.
See Tex. Tax Code Ann. § 111.061(b) and 34 Tex. Admin. Code § l.40(1)(B).

18. The underreporting documented within the audit constitutes gross error. See Tex. Tax
Code Ann. § ll 1.205(b).

19. The Comptroller has held on many occasions that gross underreporting of taxable sales,
along with other factors or no plausible explanation, is sufficiently indicative of intent to
evade the tax to warrant the assessment of the fraud penalty. See, e.g., Comptroller's
Decision No. 105,232 (2012).

20. Staff s evidence clearly and convincingly demonstrates that the underreporting identified
by the audit was the result of fraud or an intent to evade tax.

10
21. The Comptroller has held that the actions of a corporate officer who was involved in day-
to-day corporate business affairs and routinely prepared or signed sales tax returns had
knowledge of gross underreporting of tax and that knowledge could be legally imputed to
the corporation in establishing the requisite intent to evade tax. See, e.g., Comptroller's
Decision No. 45,735 (2006).

22. Staff demonstrated that the fraud identified in the audit should be attributed to the
corporation.

23. Late penalties are automatically imposed on delinquent sales taxes. Tex. Tax Code Ann.
§ 111.061.

24. Staff has the discretionary authority to waive penalties if a taxpayer has exercised
reasonable diligence to comply with tax laws. Tex. Tax Code Ann. § 111.103.

25. A taxpayer has the burden to establish reasonable diligence by a preponderance of the
evidence. See, e.g., Comptroller's Decision No. 102,695 (2010).

26. Petitioner did not establish that it acted with reasonable diligence to comply with tax
laws.

27. Petitioner failed to demonstrate that waiver of the 10% penalty is warranted.

28. Delinquent taxes draw interest beginning 60 days after the date due. See Tex. Tax Code
Ann. § ll l.060(c).

29. Staff has discretionary authority to waive interest assessments and will exercise its
discretion if interest was imposed as a result of undue delay caused by Comptroller
personnel, reliance on advice provided by the Comptroller's office, or natural disaster.
See Tex. Tax Code Ann. § 111.103; see also 34 Tex. Admin. Code
§ 3.5(d).

30. Petitioner must demonstrate, by a preponderance of the evidence, that interest waiver is
warranted. See 34 Tex. Admin. Code § l.40(2)(B).

31. Petitioner failed to demonstrate that interest waiver is warranted.

32. The assessment should be affirmed in all respects.

13
Hearing No. 109,293

ORDER OF THE COMPTROLLER

On August 8, 2014, the State Office of Administrative Hearings' (SOAH) Administrative
Law Judge (ALT), Trevor Moore, issued a Proposal for Decision in the above referenced matter.
The parties were given fifteen days from the date of the Decision to file exceptions with SOAH.
No exceptions were filed, and the Comptroller has determined that the AL.T's Proposal for
Decision, except for minor changes to correct typographical or clerical errors, should be adopted
as written.

The above Decision resulting in Petitioner's liability as set out in Attachment A, which is
incorporated by reference, is approved and adopted in all respects. The Decision becomes final
twenty days after the date Petitioner receives notice of this decision, and the total sum of the tax,
penalty, and interest amounts is due and payable within twenty days thereafter. If such sum is
not paid within such time, an additional penalty of ten percent of the taxes due will accrue, and
interest will continue to accrue. If either party desires a rehearing, that party must file a motion
for rehearing, which must state the grounds for rehearing, no later than twenty days after the date
Petitioner receives notice of this Decision. Notice of this Decision is presumed to occur on the
third day after the date of this Decision.

Signed on this day of October 2014.

SUSAN COMBS

12
 Re3 ·9619>
TEXAS NOTIFICATION OF HEARING RESULTS ·Attachment A STATEMENT DATE .
October 22, 2014

Taxpayer Number Audi t Period Hearing Number
xxxxxxxxxxx 05·01· 2008 THRU 12·31 2011 109293
!X s0ANansE TAX
FIGURES WERE UPHELD

TAX $ STATE LOCAL
11,634.7g TOTA .09
50,41
1 38,782 $ $

kT( 0 fA¥lNT DATE 2
:g :i9
.34 6,980.8 3g.2so.2g
... ......... .. ... ....
2,302.71
- - - -·- -······- · .- ... ..... .,.9- 7.8...3..
TOTAL DUE /JS OF STATEMENT DATE $ 69,727.41 $ 20,918.31 $ 90,645.72

(Interest of $ 5.87 oer day will conti nue to accrue after 10·22·2014
through the date of payment .)
A lOt penalty will be assessed on tax still due 43 days after the date on the Order of the
Comptrol l er (TEX. TAX CODE ANN .SEC. lll.0081(c)).
For P.ayment information call 1·800-531-5441, extension 3-3900 toll free nationwide, or cal l
512/it63·3900. .

Make your check payabl e to STATE COMPTROLLER and mai l to Comptroller of Public Accounts
111 E . 17th Street, ·Austin, Texas 78774-0100.
10/07/2014
*Per annum i nterest rates are subject to change on January 1st of each year For more
interest rate i nformation, refer to Publicati on 98·304, call 1 877·447-2834. or refer
to http ://www.state .tax.us.

(Cut and Return Bottom Portion with Payment)

00·
739
(Rev 9 ·96/9)

TEXAS NOTIFICATION OF HEARING RESULTS Heari ng Number
A·ttachment A 109293
STATEMENT DATE
October 22. 2014
T,me of Tax
SALES AND USE TAX
Taxoayer Name & Mail ing Address
BROADWAY GROCERY, INC.
XXXXXXXXXXXXXXXX Amount of Your Payment
SAN ANTONIO, TX XXXXXXXXXX
 *PMD ------

*Tcode *Taxpayer Number *Period *Audit *State Amount *Local Amount
26040 xxxxxxxxxxx 1112 001 69727.41 20918.31
 EXHIBIT E

BROADWAY DENYING MOTION FOR REHEARING
 HEARING NO. 109,293

RE: BROADWAY GROCERY, INC. § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
§ SUSAN COMBS
§ Texas Comptroller of Public Accounts
TAXPAYER NO: xxxxxxxxxxx §
AUDIT OFFICE: Audit - San Antonio 2160 § ISREAL MILLER
AUDIT PERIOD: May 1, 2008 § Representing Tax Division
THROUGH December 31, 2011 §
§ SAMUEL T. JACKSON
Sales And Use Tax/RDT § Representing Petitioner

ORDER DENYING MOTION FOR REHEARING

On November 24, 2014, Petitioner timely filed a Motion for Rehearing concerning the
October 31, 2014 Comptroller's Decision issued in the above-referenced matter. On December
1, 2014, the Tax Division filed its Reply opposing Petitioner's Motion.

Having considered Petitioner's Motion and the Tax Division's Reply, it is concluded that
the Motion for Rehearing does not raise any legal or factual grounds that would affect the
decision of the Comptroller. It is accordingly ORDERED that the Motion for Rehearing be, and
is hereby, DENIED.

The Comptroller's Decision becomes final on the date of this Order Denying Motion for
Rehearing, and the total sum of the tax, penalty, and interest is due and payable within twenty
(20) days thereafter. If such sum is not paid timely, an additional penalty of ten percent of the
taxes due will accrue and interest will continue to accrue until the taxes owed are paid.

All parties of record are being notified by copy of this Order.

Signed on this ;2..r.v;{ day of December 2014.

SUSAN COMBS
Comptroller of Public Accounts

EXHIBIT E
 EXHIBIT F

SHARIZ MOTION TO DISMISS
 HEARING N0. 108,636

RE: SHARIZ INC. § BEFORE THE COMPTROLLER
§
TAXPAYER NO: xxxxxxxxxxx §
AUDIT OFFICE: Audit - Houston N 2130 § OF PUBLIC ACCOUNTS
AUDIT PERIOD: September 1, 2006 §
through September 30, 2010 §
Sales And Use Tax/ROT § OF THE STATE OF TEXAS

MOTION TO DISMISS FOR WANT OF PROSECUTION

To Special Counsel for Tax Hearings:

The Comptroller is authorized under 34 TEX. ADMIN. CODE §1.39 to dismiss a hearing upon the
taxpayer's failure to prosecute its case.

The facts in support of this motion are as follows. Petitioner filed its Statement of Grounds on
October 1, 2011 and to date has provided no documentation in support of its contentions. The
Tax Division's Position Letter requested that Petitioner provide documentation in support of its
contentions with its Reply to Position Letter. Petitioner's Reply to Position Letter was nothing
more than the Position Letter Option Form 2 stated Petitioner's general disagreement with the
Reply to Position Letter. In order to prosecute its case, Petitioner must show error in the audit as
required by Rule 1.40. Because Petitioner has failed to provide any documentation in support of
its case, the Tax Division recommends that case be dismissed for want of prosecution.

No agreements were made that require adjustments. Therefore, the Tax Division moves for
dismissal of this hearing with no change to the assessment.

Assistant G eral Counsel
Administrative Hearings
Texas Comptroller of Public Accounts
P.O. Box 13528
Austin, Texas 78711-3528
Texas State Bar No. 24041485
telephone: (512) 463-4612
facsimile: (512) 463-4617
isreal.miller@cpa.state. tx.us

EXHIBIT F
 CERTIFICATE OF SERVICE

I certify that a copy of this Motion to Dismiss for Want of Prosecution was mailed to Mr.
Samuel T. Jackson, The Law Office of Samuel T. Jackson, P.O. Box 170633, Arlington, TX
76033-0633, on this the 3rd day of March, 2014.

2
4MTD (09/13)
 EXHIBIT G

SHARIZ COMPTROLLER DECISION
 S U S A N
TE X A S C 0 M PT R 0 L LER 0 j P U B LIC A C C 0 U NT S

C 0 M B S P.O .Box 1 35 28 • AUSTIN , TX 787 1 1 -35 28

September 5, 2014

Mr. Samuel T. Jackson
P.O. Box 170633
Arlington, TX 76033-0633

Re: Shariz, Inc.
Hearing No. 108,636
Taxpayer No. xxxxxxxxxxx

The Comptroller's Decision (Decision) on your Petition for Redetermination is enclosed.
Attachment A to the Decision reflects your total liability for the period covered by the
Decision. As noted in Attachment A, additional daily interest will continue to accrue
through the date of your payment.

Unless a motion for rehearing is timely filed, the Decision will become final on
September 29, 2014, and your total liability plus the additional daily interest will be due
and payable twenty days thereafter. If you fail to timely file a motion for rehearing or
pay the total liability, as well as any additional accrued interest, within twenty days after
the date the Decision becomes final, an additional 10% penalty will be assessed on the
tax due and interest will continue to accrue.

A motion for rehearing can only be filed with the Special Counsel for Tax Hearings at
P.O. Box 13528, Austin, Texas 78711.3528 or by facsimile at 512.936.6190. However, a
copy must be filed with the Assistant General Counsel in the Administrative Hearings
Section. If you have any questions about the procedures for filing a motion for rehearing,
you may contact the Assistant General Counsel, Isreal Miller, by calling toll-free
800.531.5441, extension 3.4612. The regular number is 512.463.4612.

Chris Kadas
Special Counsel for Tax Hearings

cc: Isreal Miller, Representing Tax Division
Shariz, Inc.

EXHIBIT G

WWW .W INDOW .STATE .TX .US 5 1 2·463·4 000 • TOLL FREE: 1·800 - 53 1- 544 1 • FAX : 5 1 2 - 463 - 4965
 HEARING NO. 108,636

RE: SHARIZ, INC. § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
§ SUSAN COMBS
§ Texas Comptroller of Public Accounts
TAXPAYER NO: xxxxxxxxxxx §
AUDIT OFFICE: Audit - Houston N 2130 § ISREAL MILLER
AUDIT PERIOD: September 1, 2006 § Representing Tax Division
THROUGH September 30, 2010 §
§ SAMUEL T. JACKSON
Sales And Use Tax/RDT § Representing Petitioner

COMPTROLLER'S DECISION

On March 3, 2014, the Tax Division moved to dismiss this case for want of prosecution.
Petitioner's liability has been calculated in accordance with the motion, and the resulting liability
is set forth in Attachment A, which is incorporated herein by reference and approved and
adopted in all respects. It is therefore ORDERED that the petition be dismissed and the audit be
made final in accordance with the motion and Attachment A.

This Decision becomes final twenty days after the date Petitioner receives notice of this
Decision, and the total sum of the tax, penalty, and interest amounts is due and payable within
twenty days thereafter. If such sum is not paid within such time, an additional penalty of ten
percent of the taxes due will accrue, and interest will continue to accrue. If either party desires a
rehearing, that party must file a motion for rehearing, which must state the grounds for rehearing,
no later than twenty days after the date Petitioner receives notice of this Decision. Notice of this
Decision is presumed to occur on the third day after the date of this Decision.

Signed on this S ay of September 2014.

SUSAN COMBS
Comptroller of Public Accounts
00-739

(Rev 9 -96/9) -1897

TEXAS NOTIFICATION OF HEARINGS RESULTS - Attachment A STATEMENT DATE
September 12, 2014

Taxpayer Number Audit Period Hearing Number
xxxxxxxxxxx 9/1/06 THRU 9/30/10 108636

Type of Tax
SALES AND USE TAX

FIGURES WERE UPHELD

STATE LOCAL TOTAL
TAX $41,156.30 $13,170.18 $54,326.48
PENAL.TY 24,747.06 7,919.16 32,666.22
INTEREST THRU STATEMENT DATE 12,205.14 3,905.70 16.110.84

TOTAL DUE AS OF STATEMENT DATE $78,108.50 $24,995.04 $103, 103.54

(Interest will continue to accrue at $ 6.32 per day after 9/12/14 through the date of payment. * )

A 10% penalty will be assessed on tax still due 43 days after the Order of the Comptroller (TEX. TAX CODE ANN.
SEC. 111.0081 (c).

For payment information call 1-800-531-5441 , ext. 3-3900 toll free nationwide, or call 512/463-3900.

Make your check payable to STATE COMPTROLLER and mail to Comptroller of Public Accounts, 111 E. 1ih
Street, Austin, Texas 78774-0100.

* Per annum interest rates are subject to change on January 1st of each year. For more interest rate
information, refer to Publication 98-304, call 1-877-447-2834, or refer to
http://www.window.state.tx.us/taxinfo/int rate.html

(Cut And Return Bottom Portion With Payment)

00-240
TEXAS NOTIFICATION OF HEARING RESULTS Hearing Number
- Attachment A 108636
STATEMENT DATE
September 12, 2014

Type of Tax
SALES AND USE TAX

Taxpayer Name & Mailing Address
SHARIZ INC Amount of Your Payment
xxxxxxxxxxxxxxxxx
SUGAR LAND TX xxxxxxxxxx

*Tcode *Taxpayer Number *Period *Audit *Type *State Amount *Type *Local Amount
26040 xxxxxxxxxxx 1009 001 02 78108 .50 04 24995.04
 EXHIBIT H

SHARIZ ORDER DENYING MOTION FOR REHEARING
 HEARING NO. 108,636

RE: SHARIZ, INC. § BEFORE THECOMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
§ SUSAN COMBS
§ Texas Comptroller of Public Accounts
TAXPAYER NO: xxxxxxxxxxx §
AUDIT OFFICE: Audit - Houston N 2130 § ISREAL MILLER
AUDIT PERIOD: September 1, 2006 § Representing Tax Division
THROUGH September 30, 2010 §
§ SAMUEL T. JACKSON
Sales And Use Tax/RDT § Representing Petitioner

ORDER DENYING MOTION FOR REHEARING

On September 25, 2014, Petitioner timely filed a Motion for Rehearing concerning the
Sept 5, 2014 Comptroller's Decision issued in the above-referenced matter. On September 26,
2014, the Tax Division filed its Reply opposing Petitioner's Motion.

Having considered Petitioner's Motion and the Tax Division's Reply, it is concluded that
the Motion for Rehearing does not raise any legal or factual grounds that would affect the
decision of the Comptroller. It is accordingly ORDERED that the Motion for Rehearing be, and
is hereby, DENIED.

The Comptroller's Decision becomes final on the date of this Order Denying Motion for
Rehearing, and the total sum of the tax, penalty, and interest is due and payable within twenty
(20) days thereafter. If such sum is not paid timely, an additional penalty of ten percent of the
taxes due will accrue and interest will continue to accrue until the taxes owed are paid.

All parties of record are being notified by copy of this Order.

Signed on this q-tY\ day of October 2014.

SUSAN COMBS
Comptroller of Public Accounts

EXHIBIT I
 EXHIBIT I

RUBI & SONS REQUEST FOR REDETERMINATION
 Law Office
Of Mail: P.O. Box 170633; Arlington, TX 76003-0633
Samuel T. Jackson (817) 404-5042 ~ (214) 628-0977 ~ (512) 692-6260
Toll Free: (800) 969-5023 ~
~
~ Fax: (866) 722-9685

FEBRUARY 2, 2015

Comptroller of Public Accounts
Audit Processing Section
111 East 17th
Austin, TX 78774-0100

Re: Petition for Redetermination Hearing
RUBINA NOORANI, President
RUBI & SONS STORE, INC.
Taxpayer No. xxxxxxxxxxx
Audit Period: December 1, 2010 to April 30, 2014

REQUEST FOR REDETERMINATION HEARING
FOR PERSONAL LIABILITY OF RUBINA NOORANI

Dear Comptroller Hegar:

This letter is intended as a Request for a Redetermination Hearing for the above-referenced
individual’s Personal Audit Liability for Fraudulent Tax Evasion. Petitioner requests that a hearing be set
before the State Office of Administrative Hearings with proper notification pursuant to Tex. Tax Code
Ann. §§ 111.009, 151.510, 154.309, and 155.186. Please see the attached Limited Power of Attorney
authorizing my representation in this matter.

SUMMARY

Petitioner incorporates herein by reference, the Statement of Grounds contained in the Request
for Redetermination of Rubi & Sons Store, Inc. In addition, Petitioner disputes the assessment of fraud
and penalties in the absence of allegations or proof of willful intent to evade taxes or distort the records.
Petitioner asserts that he offered records substantially in compliance with statutory requirements, and his
alleged underpayment in excess of 25% is insufficient to sustain a claim of intentional fraud.
Petitioner further alleges that the auditor has demonstrated no basis for the imposition of a
Jeopardy Determination and that such imposition is arbitrary, capricious and without foundation because
the Comptroller has failed to establish any standards for making such determination.
Petitioner asserts that the issues raised in this Statement of Grounds only require statutory or
legal interpretations, and are not reliant on proof of any factual issues related to the audit. As Petitioner
does not challenge the accuracy of the audit itself, it is not necessary and she therefore does not intend to
respond to requests which may be made in a subsequent Position Letter for proof or documentation in
support of these purely legal issues. Any proof of factual allegations asserted will be addressed by
reference to the auditor’s records. Petitioner’s failure or refusal to respond to such requests is not
intended as a relinquishment of this request for hearing or of a failure to prosecute this claim.

EXHIBIT I
 STATEMENT OF GROUNDS

1. THE IMPOSITION OF ADDITIONAL FRAUD PENALTIES SHOULD BE DELETED BECAUSE THE
UNDERPAYMENT WAS NOT THE RESULT OF FRAUD OR A KNOWING OR WILLFUL INTENT TO EVADE
TAXES.

Petitioner disputes the application of the Fraud Penalty Assessment in the absence of any
evidence or findings that the audit disclosed willful evasion of the tax or fraud. Specifically, there is no
evidence, nor have any allegations been made or substantiated that Petitioner altered, destroyed, or
concealed any record, document, or thing, or presented to the comptroller any altered or fraudulent
record, document or thing, or otherwise engaged in fraudulent conduct, for the apparent purpose of
affecting the course or outcome of the audit, investigation, redetermination, or other proceeding before
the comptroller as required by TEX.TAX CODE ANN. § 111.061.
A penalty assessment under Section 111.061(b) (1) will not be upheld unless there is clear and
convincing evidence of a taxpayer’s willful or fraudulent failure to pay the tax. See Rule 1.40(1) (B). See
also Webb v. Commissioner of Internal Revenue, 394 F. 2d 366 (1968) [Fraud with the intent to evade tax
requires actual, intentional wrongdoing with a specific purpose to evade]. Petitioner requests the
Comptroller to more specifically allege and prove the conduct which constitutes fraud or willful evasion
of the tax.

2. THE IMPOSITION OF PERSONAL LIABILITY AND ADDITIONAL FRAUD PENALTIES SHOULD BE
DELETED BECAUSE THERE IS NO PROOF THAT PETITIONER HAS TAKEN ANY ACTION OR PARTICIPATED IN ANY
FRAUDULENT SCHEME OR FRAUDULENT PLAN TO EVADE THE PAYMENT OF TAXES DUE UNDER TITLE 2 OR 3,
AND THE AUDITOR HAS MADE NO SUCH ALLEGATIONS OR SUBMITTED ANY PROOF IN SUPPORT OF SUCH
ALLEGATIONS.

TAX CODE § 111.0611, the Personal Liability statute, permits the imposition of the liability on a
responsible party who “took an action or participated in a fraudulent scheme or fraudulent plan to evade
the payment of taxes due under Title 2 or 3.” The statute sets forth the following criteria which may give
rise to this enforcement procedure:

(1) filing, or causing to be filed, a fraudulent tax return or report with the comptroller on behalf of
the business entity;

(2) intentionally failing to file a tax return, report, or other required document with the
comptroller when the business entity is under a legal obligation to file;

(3) filing, or causing to be filed, a tax return or report with the comptroller on behalf of the
business entity that contains an intentionally false statement that results in the amount of the tax
due exceeding the amount of tax reported by 25 percent or more; and

(4) altering, destroying, or concealing any record, document, or thing, presenting to the
comptroller any altered or fraudulent record, document, or thing, or otherwise engaging in
fraudulent conduct with the intent to affect the course or outcome of a comptroller audit or
investigation, a redetermination hearing, or another proceeding involving the comptroller.

The Comptroller has not advised the Petitioner which of these activities he is being accused of
committing. Please do so, and we will provide an appropriate response.

Request for Redetermination Hearing, Personal Liability of Rubina Noorani
Page - 2 -
 3. THE JEOPARDY DETERMINATION SHOULD BE DELETED BECAUSE ITS UNCONSTITUTIONALLY
VAGUE AND A DENIAL OF DUE PROCESS BECAUSE ITS IMPOSITION CONSTITUTES AN ABUSE OF
DISCRETION BY THE STATE AS IT IS ARBITRARY, CAPRICIOUS, UNREASONABLE, AND WITHOUT
FOUNDATION AND WAS ISSUED WITHOUT ANY GUIDING PRINCIPLES FOR SUCH DETERMINATION.

Pursuant to TAX CODE § 111.022, the comptroller may issue a Jeopardy Determination merely
on her subjective belief that the collection of a tax required to be paid to the state or the amount due for a
tax period is jeopardized by delay. Neither the statute nor the regulations provide any objective criteria
upon which this belief must be made, thereby authorizing the comptroller to make this determination
without any guiding principles to do so.
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions
are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
"Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit
standards for those who apply them." Id. Thus, for a statute not to be unconstitutionally vague, it must be
sufficiently clear in at least three respects: (1) a person of ordinary intelligence must be given a reasonable
opportunity to know what is prohibited; (2) the law must establish determinate guidelines for law
enforcement; and (3) if First Amendment freedoms are implicated, the law must be sufficiently definite to
avoid chilling protected expression. Id. at 108-09; Long v. State, 931 S.W.2d 285, 287 (Tex.Crim.App.
1996).
Accordingly TAX CODE § 111.022 is by its nature a denial of substantive and procedural due
process and constitutionally vague when it permits the Jeopardy Determination to be made merely on
undefined subjective criteria, and consequently the determination should be deleted.

4. THE INTEREST SHOULD BE DELETED BECAUSE UNPAID TAXES DRAW INTEREST BEGINNING 60
DAYS AFTER THE DATE ON WHICH THE TAX OR THE AMOUNT OF THE TAX REQUIRED TO BE COLLECTED
BECAME DUE AND PAYABLE TO THE STATE. TAX CODE § 151.512.

Interest does not accrue on delinquent taxes for the first 60 days following the due date. Tex. Tax
Code Ann. § 111.060(c). The amount of a determination made under this code is not due and payable
until 20 days after a comptroller's decision in a redetermination hearing becomes final. Tex. Tax Code
Ann. § 111.0081. Accordingly, no interest is due, and should not begin to accrue, until 60 days after the
Comptroller’s decision becomes final. See, In re AL Copeland Enterprises, Inc., (Bankr.W.D.Tex. 1991).

Respectfully submitted,

Law Office of Samuel T. Jackson

By: Samuel T. Jackson
Samuel T. Jackson
State Bar No. 10495700
jacksonlaw@hotmail.com

Request for Redetermination Hearing, Personal Liability of Rubina Noorani
Page - 3 -
 EXHIBIT J

ISBA REQUEST FOR REDETERMINATION
 1;
1

·
.
JUSAIR GROUP ,INC.
ACCOUNTING AND TAX SERVICES

Office xxxxxxxxxxx
, xxxxxxxxxxx
May 13, 2013

REQUEST FOR REDETERMINATION HEARING

Via Certified Mail Return Receipt
and first class mail'

Comptroller of Public Accounts
-Audit Processing ··
. Received
1
111 E. 17 Stieet' MA\' 1 6 2013
Austill ,Texas 78774-0100
RE: Taxpayer No. xxxxxxxxxxx Audit F-ocesslng
Mahmoud Ahmad lsba mptroller of Public Accounts
Xxxxxxxxxxxxxxxxxxx
Fort Worth , TX xxxxx

Dear Sir or Madam:
•'

This letter services as a request for r,.determination hearing'following the
notification of the audit result on the above-reference taxpayer. The audit period was
03/0 J /2009 through 09/30/2012

My client, Mahmoud Ahmad Isba d/b/a Nevine Fqod Store, does not agree with
the determination of the tax due on the audit because of the use of estimated sales.

Nevine Food Store is an economically depressed neighborhood of Fort Worth and
is located far from highways. The markup rates for beer and tobacco used in this audit is
higher than the actual markup rates for this business due to the sampling method sed
..Recalculation of record would significantly reduce any tax liability and eliminate
penalties.
For the foregoing reason , my client requests redetermination of the tax
dtermination made on April 11,2013.

Please contact me regarding this request for redetermination. ·

Sincerely, · Received
MAY 16 2013
Naser Abdulrazeq Audit Division
RED.REQ DUE: Q5•t?> .°l3 PM: OS•\3·155
Comptroller of Public Accounts
president
I POA Attached: _

' POA needed:.© POA rec'd:. _
I
; SOG OK: Y\1., SOG lnsuff:
EXHIBIT J
1 Suff. SOG rec'd: _ SOGOK
_: _
'--- - - - ·.
 ..
JUSAIR GROUP, INC.
xxxxxxxxxxxxxxxxxxxxxxXxxxxxxxxxx
Arlington, TX xxxxx
MAY 19 2013
Audit Oivis101:
comptroller of Public Accoun

cJ-£ COMPTROLLER OF PUBLIC ACCOUNTS
1 1 I E. 17th Street
Austin, Texas 78774-0100

78774 ,,,,,,,,,,,,,,,,1,,,,,,,,,.11.111.t·l11•111Jll111• 111l l11i l•l'1''

.·
"

,
\'
!'-
 EXHIBIT K

ISBA COMPTROLLER’S DECISION
s u s A N
TEX A S C O M PT A O L L£ A of P U B LIC A C C O U NT S
c 0 M B s P.O.BOX 1315 28 • AUSTIN, TX 7871 1·352&

j ··
fi."Pf:
'-

August 8, 2014

Samuel Jackson
The Law Office of Samuel T. Jackson
P.O. Box 170633
Arlington. TX 76033-0633

Re: Mahmoud Ahmed lsba
Hearing No. 110,485
Taxpayer No. xxxxxxxxxx

The Comptroller• s Decision (Decision) on your Petition for Redetermination is enclosed.
Attachment A to the Decision reflects your total liability for the period covered by the
Decision. As noted in Attachment, additional daily interest will continue to accrue
through the date of your payment.

Unless a motion for rehearing is timely filed, the Decision will become final on
September 2, 2014, and your total liability plus the additional daily interest will be due
and payable twenty days thereafter. If you fail to timely file a motion for rehearing or
pay the total liability, as well as any additional accrued interest, within twenty days after
the date the Decision becomes final, an additional 10% penalty will be assessed on the
tax due and interest will continue to accrue.

A motion for rehearing can only be filed with the Special Counsel for Tax Hearings at
P.O. Bo.x 13528, Austin. Texas 78711-3528 or by facsimile at 512-936-6190.However, a
copy must be filed with the Assistant General Counsel in the Administrative Hearings
Section. If you have any questions about the procedures for filing a motion for rehearing
or a waiver of the right to file a motion for rehearing, you may contact the Assistant
General Counsel, Isreal Miller, by calling toll-free 800531-5441, extension 3-4612. The
regular number is 512-463-4612.

Chris .Kadas
Special Coume1 for Tax Hearings

cc: Isreal Miller, Representing Tax Division
Mahmoud Ahmed Isba
WWW.WINDOW,.!iiTATl!!:.'rlC.US 512•463•4000 • 'J'QL.L l"REE: I•800•!;13 1• $441 •
l"A:X:: 5 I2•463•4981'
 HEARING NO. 110,485

RE: MAHMOUD AHMED ISBA § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNI'S
§ OFTHE STATE OF TEXAS
§
§ SUSAN COMBS
§ Texas Comptroller of Public Accounts
TAXPAYER NO: xxxxxxxxxxx §
AUDIT omCB: Fort Worth 2140 § ISREAL MILLER
AUDIT PERIOD: March 1,2009 § Representing Tax Division
THROUGH September 30, 2012 §
§ SAMUEL T. JACKSON
Sales and Use Tax/RDT § Representing Petitioner

CQMPTROLLER'S
DECISION

On June 10.2014, the Tax Division moved to dismiss this case for want of prosecution.
Petitioner's liability has been calculated in accordance with the motion, and the resulting liability is
set forth in Attachment A, which is incorporated herein by reference and approved and adopted in
all respects. It is therefore ORDERED that the petition be dismissed and the audit be made final in
accordance with the motion and Attachment A

This Decision becomes final twenty days after the date Petitioner receives notice of this
Decision, and the total amount of the tax, penalty, and interest amounts is due and payable within
twenty days thereafter. If such sum is not paid within such time, an additional penalty of ten
percent of the taxes due will accrue, and interest will continue to accrue. If either party desires a
rehearing, that party must file a motion for rehearing, which must state the grounds for rehearing no
later than twenty days after the date Petitioner receives notice of this Decision. Notice of this
Decision is presumed to occur on the third day after the date of this Decision.

Signed on this day of August 2014.

SUSAN COMBS
Comptroller of Public Accowit1

EXHIBIT K
 EXHIBIT L

ISBA DENIAL OF MTN FOR REHEARING
 HEARING NO. 110,485

RE: MAHMOUD AHMED ISBA § BEFORE THE COMPTROLLER
§ OF PUBLIC ACCOUNTS
§ OF THE STATE OF TEXAS
§
§ SUSAN COMBS
§ Texas Comptroller of Public Accounts
TAXPAYER NO: xxxxxxxxxxx §
AUDIT OFFICE: Audit Ft. Worth 2I40 § ISREAL MILLER
AUDIT PERIOD: March 1, 2009 § Representing Tax Division
THROUGH September 30, 2012 §
§ SAMUEL T. JACKSON
Sales And Use Tax/RDT § Representing Petitioner

ORDER DENYING MOTION FOR REHEARING

On September 1, 2014, Petitioner timely filed a Motion for Rehearing concerning the
August 8, 2014 Comptroller's Decision issued in the above-referenced matter. On September 2,
2014, the Tax Division filed its Reply opposing Petitioner's Motion.

Having considered Petitioner 's Motion and the Tax Division's Reply, it is concluded that
the Motion for Rehearing does not raise any legal or factual grounds that would affect the
decision of the Comptroller. It is accordingly ORDERED that the Motion for Rehearing be, and
is hereby, DENIED.

The Comptroller's Decision becomes final on the date of this Order Denying Motion for
Rehearing, and the total sum of the tax, penalty, and interest is due and payable within twenty
(20) days thereafter. If such sum is not paid timely, an additional penalty of ten percent of the
taxes due will accrue and interest will continue to accrue until the taxes owed are paid.

All parties of record are being notified by copy of this Order.

Signed on this \ to%day of September 2014.

SUSAN COMBS
Comptroller of Public Accounts

EXHIBIT L
EXHIBIT M

ISBA BOND
 T E X A S C O M P T R O L L E R a/ P U B L I C A C C O U N T S

P . O . B O K 1 3 5 2 6 • AUSTWI. T X 7 B 7 1 l - 3 s e a

06/17/2O14

nSMODD AHMED ISB&
1631 1 TICKSW HLVD
nXS HDOre TX 7«l04-3853
xxxxxxxxxxxxxx

IKgjCE; TEXAS B O W P _<»_ j S K H W l T T I S l ^ S l l l l l E B F O R
L I M I T E D S A L E S , E X C I S E , AMD U S E TAX

Taxpayer nuBber: 3-20111-0514-8
XXXXXXXX
An a n a l y s i s of your LIMITED S A L B B , S X O I S S , AMD H5E T A X
account shows t h a t a t t h i s time yoo need t o f u r n i s h a bond o r s e c u r i t y i n the
asount of $ 9,0OO.00 t o the CMsptroller f o r the following reason:

F a i l u r e t o post bcatd f o r your LIMITED SALES, EXCISE, AMD USE TAX PHEStlT.

I f you do not ccagjly with t h i s n o t i c e t y j^ne 27, 2014 *J>is o f f i c e w i l l
take a l l appropriate steps t o a s s u r e c(»s>liance. These include, but a r e not
l i m i t e d t o the f o l l o w i n g : revocation o r suspension o f any permit, l i c e n s e , o r
c e r t i f i c a t e i s s u e d by the comptroller; withholding of s t a t e i s s u e d warrants;
f r e ^ E l n g o f a s s e t s ; sedusure and s a l e C3sf p r o p e r t i e s . C«EX. TAX CODE AHM. EBCS.
111.0047 , 311.021, 111.017 and 111-OlS)

Please contact the following f i e l d o f f i c e t o f u r n i s n the bond o r s e c u r i t y :

Comptroller's Enforcement O f f i c e "
2108 E RAMDOL HILL BO STB 100

Telephone: (817)459-1155

A f t e r two (2) consecutive y e a r s o f continuous con^lianoe with the conditions
of the bond or s e c u r i t y p r o v i s i o n s your bond o r s e c u r i t y w i l l be r e l e a s e d .

(«n,o ·') E;'3» l bh$° J-fS42> (Date)

Your cooperation in this matter wil l assist the Comptroller in completi ng our
evaluation of you r tax respon si bilities with fairness to you and the State of Texas.

Thank you ,

Enforcement OffiCr (Please Print ) SUSAN COMBS
98- 157 (03/09) COMPTROLLER OF PUBLIC ACCOUNTS