Garland v. Director of Revenue

WHITE, Judge,

concurring in part and dissenting in part.

Today the Court holds that a provision of State income tax law drawn word-for-word from the Internal Revenue Code has a different meaning from that embodied in federal law. In doing so, the majority contravenes the clear intent of the legislature, ignores numerous previous decisions of this Court, and exposes Missouri taxpayers to an uncertainly defined, draconian, and legislatively unintended punitive sanction.

The majority concedes (as it must) that the federal interpretation of the term “penalty” is inconsistent with the result reached here. Section 143.091 is clear: “Any term used in sections 143.011 to 143.996 shall have the same meaning when used in a comparable context in the laws of the United States relating to federal income taxes, unless a different meaning is clearly required by the provisions of sections 143.011 to 143.996.” Yet the principal opinion attempts to evade this clear mandate by relying on several newly-announced principles, none of which are supported by statute or precedent.

First, the majority holds that this Court need only look to federal law where State law is ambiguous. That section 143.091 does not apply itself only to “ambiguous” terms is ignored. The non-tax cases cited by the majority opinion, which hold that an ambiguity is a prerequisite to construction of a statute, are inapplicable here. This Court has repeatedly held that 143.091 requires a construction consistent with federal law unless a term is otherwise defined in chapter 143; this is true even in applying statutes that contain facially unambiguous terms like “negligence” and “dividend.”1

Nor is the “plain language” definition of “penalty” appropriate. As this Court has held, the legislature directed that the meanings of words in the tax code are not to be found, as the majority holds here, in a dictionary, but in federal law. In Goldberg v. Administrative Hearing Comm’n, 606 S.W.2d 176 (Mo.1980)2 for example, the Court rejected the notion, revived in the principal opinion, that the “commonly understood” meaning of words used in revenue statutes was controlling: “Under [section 143.091], the question is not whether the minimum tax is ‘commonly known’ as an income tax, but whether under federal law the minimum tax is an income tax.”

Ultimately, the majority holds that the federal definition of the term “penalty” is inconsistent with section 143.751.4, and that the section itself clearly requires a different meaning. To reach this conclusion, the majority holds, without citation to authority, that, while section 143.091 applies to the definition of terms in the tax statute, it does not govern the interpretation of an entire statutory section. The majority’s position appears to be that, while individual words in taxing statutes have the same meaning as they do in federal statutes, when the legislature strings these words together, they somehow develop a different meaning, even when they are combined in exactly the same way- that they are in the Internal Revenue *830Code. Even assuming that it is possible to interpret a statutory section without referring to the definition of the individual terms that make it up, this Court has repeatedly held that section 143.091 places the Court squarely “under the interpretive thumb of the federal courts” in interpreting Missouri’s tax code.3

In interpreting statutes, “[o]ur polestar is the intent of the legislature. Construction must always seek to find and further that intent.”4 Even if section 143.091 did not require it, the rules of statutory construction would mandate that the federal judicial interpretations of this statute be examined to determine legislative intent. I.R.C. section 6672(a) was enacted by the United States Congress in 1954. Prior to its adoption by Missouri in 1973, numerous federal decisions held that the “penalty” described in that section was not designed to impose an additional punishment, but only to ensure that the full amount of tax was collected.5 It is a well established rule of statutory construction that when the legislature borrows a statute from another jurisdiction, it intends to adopt the prior judicial interpretations of that statute by the courts of the other jurisdiction.6 Here, at the time the legislature enacted I.R.C. section 6672 into Missouri law, that statutory language was not interpreted as a punitive sanction, and the legislature should not be deemed to have intended it as such.

The majority’s interpretation of this statute will have severe consequences for Missouri taxpayers, consequences that were almost certainly not intended by the legislature when it chose to enact I.R.C. 6672 into Missouri law. The evident purpose of section 143.091 is to promote uniformity and consistency between the state and federal tax codes. But here the majority has taken a statute with a specific, well-defined purpose under federal law and imbued it with a markedly different state purpose. As noted by the majority, the section 6672 “penalty” is a tax collection device that imposes joint and several liability on the corporation and its responsible officers for payment of withholding taxes. Once that liability is satisfied from one source, other officers are freed from liability.7 Under the majority’s inter*831pretation, once the employer has failed to file a withholding return, the director can collect the full amount of withholding taxes twice from the corporation, and twice from each and every responsible party. This is a radical enlargement of the tax liability of eorpo-rate employers and their officials, relative to their liability at federal law.

Even more troubling is that the rule propounded by the majority appears to apply this statute well outside the area within which the even the majority admits it should be confined. The majority opinion holds that the purpose of section 143.751.4 is obviously to punish those persons who willfully fail to pay employer withholding taxes. But by tearing the section loose from its federal interpretative roots, the majority turns the section into a powerful weapon that is not limited to that specified purpose, and in doing so, disrupts the structure of the tax code. If the statutory purpose is evident from the plain language, as the majority holds, it would seem that the statute should limit itself to withholding taxes as, for example, section 143.751.3 does. It does not. While the regulations under the I.R.C. 6672 make it clear that the statute applies only to withholding taxes, the plain language of the statute appears to impose a one hundred percent penalty on any person who willfully fails to pay the tax imposed by “sections 143.011 to 143.996,” the entirety of the income tax. Under the “plain language” interpretation announced by the majority today, it appears that any person who willfully fails to pay income tax is liable, in addition to the tax, for a one hundred percent additional penalty. This seems wildly disproportionate to the other penalties provided for in section 143.751, which impose only a five percent penalty for failure to pay based on intentional disregard of the tax laws, and a fifty percent penalty for a failure to pay with an intent to defraud.

I would affirm the decision of the Administrative Hearing Commission in its entirety.

. Hiett v. Director of Revenue, 899 S.W.2d 870, 872 (Mo. banc 1995) (looking to federal law to determine what constitutes negligence under section 143.751 because "the term negligence is not defined in chapter 143”); Dow Chemical Co. v. Director of Revenue, 787 S.W.2d 276, 285-86 (Mo. banc 1990) (looking to federal law to define "dividend,” which is not defined in Chapter 143).

. 606 S.W.2d 176, 178 (Mo. banc 1980).

. Hiett, 899 S.W.2d at 872 (looking to federal statutory and caselaw to ascertain the meaning of “negligence” in section 143.751); Dow Chemical, 834 S.W.2d at 745 (under section 143.091, "[i]t is not only the text of a statute that makes the legislative intent known, however, but also the judicial decisions that construe and give effect to the statute”); Homestake Lead Co. of Missouri v. Director of Revenue, 759 S.W.2d 847, 848 (Mo. banc 1988) (legislature’s enactment of section 143.091 leads this Court to look to "the federal pattern” of tax procedure to determine legislative intent); King v. Procter & Gamble Distributing Co., 671 S.W.2d 784 (Mo. banc 1984) (looking to federal caselaw, regulations and revenue rulings to define "income tax”); Bartlett & Co. Grain v. Director of Revenue, 649 S.W.2d 220, 223 (Mo. banc 1983) ("Sections 143.091 and 143.961 indicate the legislative intent to adopt, where possible, federal precedents and regulations in the construction of the Missouri income tax statutes”); Goldberg, 606 S.W.2d at 178 (looking to federal law, regulations, and revenue rulings). See also Herschend v. Director of Revenue, 896 S.W.2d 458, 461 (Mo. banc 1995) (Robertson, J., dissenting) (Section 143.091 "means this Court must look to federal law unless the statutes expressly define the relevant term differently. The Missouri statutes flatly do not define income tax.’ The General Assembly had the choice of fashioning a definition or directing the Court to an extant body of authority to clarify its meaning. In section 143.091, the legislature chose the latter course.”).

. Centerre Bank of Crane v. Director of Revenue, 744 S.W.2d 754, 759 (Mo. banc 1988).

. Newsome v. United States, 431 F.2d 742, 744-45 (5th Cir.1970); Monday v. United States, 421 F.2d 1210, 1216 (7th Cir.1970); Botta v. Scanlon, 314 F.2d 392, 393-94 (2d. Cir.1963).

. State ex rel. Philipp Transit Lines v. Pub. Serv. Comm'n, 552 S.W.2d 696, 700 (Mo. banc 1977).

. In re Technical Knockout Graphics, Inc., 833 F.2d 797, 799 (9th Cir.1987) ("That the funds collected under section 6672(a) are termed a penalty does not alter their essential character as taxes. The Internal Revenue Service (IRS) collects the amount of the unpaid trust fund taxes only once ...." (internal citations omitted)); United States v. Huckabee Auto, 783 F.2d 1546, 1548 (11th Cir.1986) ("Although denoted as a penalty in the statute, the liability imposed by section 6672 is not penal in nature, but is simply a means of ensuring that the tax is paid.” (internal citations omitted)); USLIFE Title Ins. Co. v. Harbison, 784 F.2d 1238, 1243 (5th Cir.1986) ("Although nothing in the language of section 6672 explicitly prevents the Government from collecting and retaining from each responsible *831person a Ml satisfaction, this court has construed it to bring to the Government only the same amount to which it was entitled to by way of tax. Double recovery is not necessary to Mfill section 6672’s primary purpose — protection of government revenues.” (internal citations omitted)); Emshwiller v. United States, 565 F.2d 1042, 1045 (8th Cir.1977) ("Though termed a 'penalty,’ the liability imposed in section 6672 is civil in nature and is designed to provide the government a means by which to collect directly from the employer those taxes which the employer withheld and should have accounted for and paid over.”).