Van Cleave Printing Co. v. Director of Revenue

BLACKMAR, Chief Justice,

dissenting.

The principal opinion purports to rely on the plain meaning of § 144.210, RSMo 1986. But that section simply does not say that the Director of Revenue may assess and collect taxes which are not lawfully owing, if the seller-taxpayer does not possess exemption certificates. Nothing in the statute says that the seller may not meet the burden of proof by other evidence.

The “exemption certificate” is a self-serving document, supplied by a buyer to a seller so that the seller does not add sales tax to the purchase price. If the seller possesses exemption certificates which are regular on their face, then challenges to the exemption must be made against the buyer. The certificate really proves nothing as to whether the transaction is exempt.

The certificate certainly is not binding on the Director. 12 C.S.R. 10-3.536(2) (1989) reads as follows:

The furnishing of an exemption certificate to a seller by a buyer constitutes a claim by the buyer that the sale is exempt from sales tax. If the claim is found to be improper, the seller remains liable for the tax but the Department of Revenue may proceed against the buyer.

This substantially tracks the language of § 144.210. How can the claim be found to be improper, unless the Director of Revenue uses other evidence to impeach the certificate.

When the legislature wants to limit the types of admissible evidence it has available language such as that in § 474.155:

A contract to make a will or devise, to revoke or not to revoke a will or devise, or to die intestate, if executed after January 1, 1981, can be established only by.... (emphasis added)

If such was the legislature’s intent, it has not expressed it in § 144.210.

The Director should not be allowed to collect a deficiency the state is not entitled to. I would allow the taxpayer to introduce evidence to resist the assessment and would reverse and remand to this end.