Bates v. Director of Revenue , 1985 Mo. LEXIS 263 ( 1985 )

RENDLEN, Chief Justice.

James Bates appeals from the Administrative Hearing Commission’s dismissal of his challenge to a sales tax assessment by the Director of Revenue under Missouri’s successor liability statute, § 144.150, RSMo 1978.¹ The statute provides in pertinent part that successors to a business must withhold from the purchase price an amount sufficient to satisfy any sales taxes not paid by a previous owner and if the successor fails so to do he risks liability for his predecessor’s delinquency.

Bates purchased the Manor Inn, a motel, restaurant and lounge complex, without satisfying a delinquent sales tax assessment arising from the operation of the business by a former owner. He contests derivative liability, arguing he is not a “successor” within the meaning of the statute and hence not subject to liability for the taxes due. This cause, turning on construction of Missouri’s revenue laws, falls within the original appellate jurisdiction of the Court. Mo. Const. Art. V, § 3.

In 1970 Jack and Virginia Rogers purchased the property in question from the Carney family. The Rogers executed a $660,062.69 promissory note to the Carneys and a first deed of trust encumbering the motel property to secure payment of the note. The property passed through several hands and in 1973 was conveyed to Manor Inn, Inc., a corporation owned and controlled by J. Douglas Cassity. When Cassity purchased the property he assumed the obligation of the outstanding promissory note held by the Carney family.² It was during Cassity’s operation of the Manor Inn the challenged sales tax delinquency occurred. In February 1979 Cassity executed and delivered to Great Southern Savings and Loan Association his promissory note in the amount of $790,000 secured by a deed of trust on the motel property junior to that of the Carneys.

Cassity defaulted on the Carney note and a successor-trustee under the first deed of trust sold the property at foreclosure sale to Great Southern for $902,000. Great Southern paid the full amount of the purchase price and received title by trustee’s deed. The Trustee paid approximately $301,000 of the purchase price to Great Southern on its junior note and held the remaining $601,000 for satisfaction of the Carney note and for payment of an accompanying claim for attorney’s fees. Cassity, contesting the legality of the foreclosure sale, presented written objections to Carney’s Trustee. Great Southern in turn challenged the amount of attorney’s fees allocated in the sale price. In response to these challenges, the Trustee filed his petition for declaratory judgment and deposited the contested funds in the registry of the Phelps County Circuit Court. The petition, naming the Carneys, Manor Inn Inc. (Cassity) and Great Southern as defendants, requested that the court declare the foreclosure sale valid and approve the proposed disbursement of funds in the Trustee’s hands.

While the action for declaratory judgment was pending, appellant sought to purchase the motel complex and in contemplation thereof the suit was settled. As a result of this settlement Bates transferred $3,000 in gems to Cassity and received from Cassity a quit claim deed conveying his interest in the realty and a bill of sale for the personal property constituting the physical assets of the Manor Inn business. Bates also executed a promissory note in the amount of $975,000, secured by his deed of trust on the property, to Great Southern and received from Great Southern a quit-claim deed conveying its interests in the realty and a bill of sale for the personal property of the Manor Inn. These transactions occurred pursuant to a “loan agreement” entered into by Bates and Great Southern which named Cassity as the seller of the Manor Inn property. Later the Director of Revenue assessed against Bates $17,289.03 in delinquent sales tax (including interest and penalties) which had accrued during Cassity’s operation of the Manor Inn.³

Bates sought review before the Administrative Hearing Commission and from an adverse ruling there, appeals to this Court. The Commission made no determination as to whether Bates purchased the Manor Inn property from Cassity or Great Southern but found him liable as a successor regardless of which might be his predecessor in title. Bates insists he purchased the property from Great Southern, not Cassity, and accordingly was not a “successor” within the meaning of the statute, this because Great Southern purchased from the foreclosing Carney Trustee and that foreclosure severed the line of succession, protecting Great Southern and Bates from derivative liability as a matter of law.

In this review, the decision of the Commission must be upheld if authorized by law and supported by competent and substantial evidence. § 621.193 RSMo Supp. 1984 (formerly codified as § 161.338 RSMo 1978). We affirm.

Section 144.150 provides:

Withholding of tax money in case of sale of business. If any person required to remit a tax levied hereunder or his successors shall sell his or its business or stock of goods or shall quit the business, he shall make a final return under oath within fifteen days after the date of selling or quitting business. All successors, if any, shall be required to withhold sufficient of the purchase money to cover the amount of such taxes and interest or penalties due and unpaid until such time as the former owner or predecessor, whether immediate or not, shall produce a receipt from the director of revenue showing that they have been paid, or a certificate stating that no taxes are due. If the purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided, he shall be personally liable for the payment of the taxes, interest and penalties accrued and unpaid on account of the operation of the business by the former owner and person.

There are no Missouri cases construing this section, however decisions interpreting similar statutes from other jurisdictions are instructive. See generally Annot., 65 A.L. R.3d 1181 (1975). The courts of sister states consistently emphasize that the purpose of successor liability statutes is to secure collection of taxes by imposing derivative liability on purchasers of a business who are generally in a better financial position to collect or pay the tax from the sale price than the seller quitting the business. E.g., Bank of Commerce v. Woods, 585 S.W.2d 577 (Tenn.1979). Such statutes are given broad construction so not to jeopardize the state interest in securing collection of taxes. Bank of Commerce, 585 S.W.2d at 581; see Sterling Title Company of Taos v. Commissioner of Revenue, 85 N.M. 279, 511 P.2d 765 (App.1973); Tri-Financial Corporation v. Department of Revenue, 6 Wash.App. 637, 641, 495 P.2d 690, 692 (1972).

When determining the meaning of the statutory term “successor,” consideration of the entire section is necessarily the starting point. Though it contains no separate definition of its terms, the statute obligates “all successors” to “withhold sufficient of the purchase money” to provide for outstanding taxes and imposes personal liability on a “purchaser” who fails so to do. One who acquires property without purchasing cannot withhold purchase money and necessarily cannot be held liable as a “successor” within the meaning of the statute. To be a successor one must be a purchaser of the business property in question. Knudsen Dairy Products Company v. State Board of Equalization, 12 Cal.App.3d 47, 53, 90 Cal.Rptr. 533, 538 (1970); see State v. Standard Oil Company, 39 Ohio St.2d 41, 313 N.E.2d 838 (Ohio 1974); Bank of Commerce, supra.

Turning to the question of whether appellant purchased from Cassity or Great Southern we note that appellant was fully apprised of Cassity’s relationship to the property in question. Not only was the record title to the land available showing Cassity’s interest but Cassity remained in physical control until the very last when appellant finally took possession. Further, in the settlement arrangement of the Trustee’s declaratory judgment action, Cassity’s interest was contemplated by all the parties. Appellant paid Cassity $3,000 in gems for a quit claim of Cassity’s interest in the realty and his bill of sale for the personalty. In addition the loan agreement between Bates and Great Southern states that the appellant “contracted with” Cassity for the sale of the Manor Inn business property. Thus it can be said the record permits our conclusion that appellant purchased from and is a successor to Cassity, and provides sufficient competent evidence to support the Commission’s determination that appellant was a successor with in the meaning of the statute.

We next consider appellant’s contention that he was a successor only to Great Southern and because the Association acquired its interest from the foreclosure sale, no liability for the delinquent sales tax attaches to Great Southern or appellant.

Appellant in support of his argument that the foreclosure sale insulates him from derivative liability cites State v. Standard Oil, supra. There Standard Oil foreclosed on secured operating assets when its franchisee defaulted on lease payments and Standard Oil assumed ownership of the assets under its security agreement. The State taxing authority attempted to impose liability on Standard for its franchisee’s delinquent taxes but the Ohio court held there was no purchase of the property by the foreclosing party and successor liability could not attach. In the instant case neither the Carney Trustee nor any beneficiary of the Carney deed of trust “assumed ownership” at the foreclosure. Instead the Trustee exercised a power of sale and pursuant to that sale transferred the assets (so sold) to Great Southern, and the tax liability follows.

Appellant also argues that 104, Inc. v. Liquor Control Commission, 13 Ohio Misc. 75, 233 N.E.2d 622 (1967), should control here. In that case a court-appointed receiver in bankruptcy sold the assets of a bankrupt corporation to a third party. The Ohio court held that the third party was not a successor because the appointment of the intervening receiver deprived the former owner of its right to sell the business. First it should be noted that the appointment of the receiver and the rights in bankruptcy distinguish the case from that sub judice. Moreover we are not persuaded that such result should obtain in like cases here, for it is the clear intention of successor liability statutes to provide that the tax debt follow the business, its assets or any portion of them. Tri-Finan-cial Corp., 6 Wash.App. at 641, 495 P.2d at 692; Bank of Commerce, 585 S.W.2d at 580.

Notwithstanding the analysis of the Ohio court in 104, Inc. v. Liquor Control Commission, supra., we hold our statute mandates derivative liability under the facts of this case. The statute does not require that Bates be an immediate successor to Cassity. It specifically imposes the duty to withhold purchase money on “[a]ll successors ... until such time as the former owner or predecessor, whether immediate or not,” (emphasis added) shall produce a receipt from the Director showing that the taxes are paid or a certificate stating no taxes are due. Section 144.150. The statute contemplates the possibility of a series of successors placing on the immediate purchaser the duty to ascertain whether any taxes are due, and if so, to withhold purchase money. Personal liability attaches to the purchaser of the property as that person can best protect the state’s interest and is in possession of the business assets which the tax debt is deemed to follow. Bank of Commerce, 585 S.W.2d at 580; Knudsen, 12 Cal.App.3d at 53, 90 Cal.Rptr. at 538.

This implicates Great Southern as a successor under the statute though it did not operate the business. The Savings and Loan Association acquired the property from an owner-operator and then resold to Bates—another owner-operator. We do not believe intermediate transactions are beyond the statute’s purview and the legislative intent is not to so limit the taxing authority’s ability to collect. If it were otherwise purchasers could avoid successor liability simply by funneling the transaction through a third party. See Knudsen, 12 Cal.App.3d at 54, 90 Cal.Rptr. at 538. The statute specifically provides for the possibility of intervening successors so that a tax delinquent or his successors may not avoid the tax by the device of successive transfers. Great Southern should have withheld from the Carney Trustee that portion of the purchase amount necessary to cover any outstanding sales tax.⁴ The statute also obligates Bates as Great Southern’s successor, and he in turn should have protected the state’s interest by providing for the satisfaction of the tax liability. Whether Bates has an action against Great Southern under the statute is a question we do not decide.

Bates finally argues he cannot be liable under the statute because consideration for the sale was commercial paper, not “money” as required by the statute, and hence no “purchase money” changed hands from which he could withhold the delinquent taxes. Such a narrow interpretation of the statute would defeat the clear legislative purpose. In modern business practice the use of commercial paper, vis-a-vis currency, in transactions such as this is so universally employed that we cannot accept the argument that the term “purchase money” was intended by the Legislature to be limited to cash transactions. We construe the use of the term “purchase money” as descriptive of “the action to be taken by the person or business entity on whom the duty has been imposed.” Bank of Commerce, 585 S.W.2d at 581; see Knudsen, 12 Cal.App.3d at 55, 90 Cal.Rptr. at 539. Bates could have contemplated the tax delinquency and accordingly adjusted the amount of the promissory note he executed to Great Southern.

We find the Commission’s decision holding appellant liable as a successor is authorized by law and supported by competent and substantial evidence. Bates purchased the Manor Inn property and failed to require Cassity or Great Southern to produce a Department of Revenue receipt for sales tax paid or a certificate stating that no taxes were due. As Bates is presumed to be aware of the statutory requirements, see Bank of Commerce, 585 S.W.2d at 581, he shall be held to them.

Judgment affirmed.

HIGGINS, GUNN, BILLINGS and BLACKMAR, JJ., concur. DONNELLY, J., concurs in result. WELLIVER, J., dissents in separate opinion filed.

1 . All references are to RSMo 1978.

2 . The record does not disclose from whom Cas-sity purchased the property, merely that it was conveyed through "mesne and sundry conveyances.” There is no dispute however, that Cassity acquired the property subject to the Carney deed of trust.

3 . Curiously the author of the dissenting opinion asserts that an understanding of the transaction involved in this case "requires a more detailed statement of facts than that provided by the principal opinion" of the Court. The inaptness of this assertion becomes clear from a comparison of the factual account set forth in this, the principal opinion with that of the dissent. The principal opinion details the dispositive facts of the case. No additional facts pertinent to the issues are presented by the dissent which merely paraphrases and tracks in part the factual recitals of the majority. Further, the dissent fails to acknowledge relevant clauses of the "loan agreement” which support a conclusion that both Great Southern and Cassity asserted legal interests in the real property at the time of Bates’ purchase. The dissent seems unwilling to consider the totality of the circumstances and read together all the instruments executed April 1st and 25th, 1980, which include the Settlement Agreement and dismissal of the declaratory judgment action, two quit claim deeds, two bills of sale for personalty and the loan agreement. The selective rendition of facts by the dissent leads to an erroneous conclusion regarding the circumstances of Bates’ purchase.

Moreover, the dissent’s suggestion that the opinion adopted today will impair Missouri businessmen’s opportunity to borrow money discloses a misunderstanding of the law of the case. The focus here is not on the liability of the “purchaser at foreclosure”- for payment of sales tax. The legislature, in the statute we are called on to construe, demonstrates an intent by the use of the broad general term "successor” that such "successor” shall withhold purchase money until the former owner or predecessor in the business produces a receipt or certificate that no taxes are due. We are neither free to ignore the terms of the statute nor disposed to criticize the legislature for a policy designed to protect the State as well as purchasers in a manner similar in operation and purpose to the Bulk Sales Law.

4 . Although this might work to deprive the foreclosing Trustee of the full sales price the question of claim priority in this instance is not before this Court. Nevertheless, the statute’s withholding requirement reaffirms the general statutory scheme and common law principles found elsewhere in the law making the state’s claim paramount to those of other creditors. See § 430.330 RSMo 1978; In Re Holland Banking Company, 313 Mo. 307, 281 S.W. 702 (Mo. banc 1926).