Opinion
No. 91-1897
Submitted April 23, 1992 —
Decided September 2, 1992.
APPEAL from the Board of Tax Appeals, No. 89-C-455.
Bob, Inc. failed to pay sales taxes for the periods of June and December 1984, and June, October, and December 1985. Under R.C. 5739.33, the Tax Commissioner assessed Fred B. Smith, appellant, as a responsible officer of Bob, Inc., for $17,281.30 in sales taxes and penalties. Smith appealed to the Board of Tax Appeals ("BTA"), and testimony and other evidence was presented at a hearing before the BTA.
Prior to his death on April 16, 1984, Robert Group was the president and sole shareholder of Bob, Inc., which owned three restaurants in Ohio. Casa Pasta was managed by Chef de Marchi and was scheduled to be sold to de Marchi on April 18, 1984. Mr. Gatti's Pizza was managed by Janet Tomas, Robert Group's stepdaughter. The third restaurant, in Beavercreek, had been closed and was for sale.
Robert Group's widow, Rowena Group, and the attorneys representing the Group estate asked Smith to serve as president of Bob, Inc. According to Smith, "some things [were] in the mill that needed to be handled and completed. They needed somebody with a title just to finish up some of the things Mr. Group was handling before he died." These matters were the sale of the equipment, etc. in the Beavercreek restaurant, and the sale to Chef de Marchi of the Casa Pasta restaurant. Regarding the sale of Casa Pasta, Smith's responsibility would be to execute the paperwork "if it ever got put together." Smith agreed "to act as president of Bob, Inc. at that time in order to fulfill those things in respect for my good friend, Bob Group." Smith served as president of Bob, Inc. from May 9, 1984 until he was removed as president on August 28, 1985. Smith owned none of the stock of Bob, Inc. and received no salary as president; in fact, he received no compensation at all. While serving as president, Smith did not make deposits and he had no authority to sign checks for the stores. His accounting firm, Fred B. Smith Associates, was paid $80 per month for services, the same arrangement as it had been while Group was alive.
Chef de Marchi, as manager of Casa Pasta, was responsible for handling receipts at the store and making deposits, and for paying rent, the payroll and sales taxes. He was also in charge of the checking account. Rowena Group and her daughter managed Mr. Gatti's Pizza, collected the money, deposited it in the bank, wrote checks and paid the bills. The accounting firm prepared the payrolls and the sales tax reports and delivered them to each restaurant. The managers were to file the sales tax returns and to pay the taxes. However, this was not done.
Sometime after April 16, 1984, but before he was appointed president on May 9, Smith handled the sale of the equipment of the Beavercreek restaurant and paid all the back bills as agreed, from his trust account. He "put those funds in that account and paid the payroll taxes, back sales taxes up through 1983 as Mr. Group would have wanted me to do." The Casa Pasta sale was never completed because of the death of Robert Group and the unavailability of funds.
The BTA found "* * * that the appellant is an officer of the corporation who had control or supervision of or was charged with the responsibility of filing returns and making payment of sales tax on behalf of the corporation * * *." Accordingly, the BTA affirmed the assessment.
The cause is before this court upon an appeal as of right.
Carroll E. Hunt, for appellant.
Lee I. Fisher, Attorney General, and Janyce C. Katz, for appellee.
The BTA decided, essentially on the basis that Smith was the president and sole officer of Bob, Inc., that he was a responsible officer under the statute and liable for payment of the unpaid sales taxes. We hold that the decision of the BTA was unreasonable and reverse it.
Being an officer of a corporation does not, in and of itself, impose liability on an individual. Weiss v. Porterfield (1971), 27 Ohio St.2d 117, 56 O.O.2d 65, 271 N.E.2d 792; Kihm v. Lindley (1982), 70 Ohio St.2d 76, 24 O.O.3d 149, 434 N.E.2d 1354.
The BTA placed heavy reliance upon Spithogianis v. Limbach (1990), 53 Ohio St.3d 55, 559 N.E.2d 449, and McGlothin v. Limbach (1991), 57 Ohio St.3d 72, 565 N.E.2d 1276. We find, however, that Hile v. Limbach (1989), 44 Ohio St.3d 197, 542 N.E.2d 651, and Kihm control.
In Hile, the appellant, Darwin Hile, was the president of the taxpayer corporation, and was also the owner and president of a general contracting company. For the taxpayer corporation he presided at monthly board meetings, but he received no salary. He was not involved in daily operations. He had authority to sign checks, but never signed sales tax checks or returns. Those functions were performed by the general manager or the comptroller. The BTA held Hile liable for unpaid sales tax assessments against the corporation because he retained the right to countersign checks and "not only had the power to pay the corporation's sales taxes but also had the power to control and supervise the persons charged with the responsibility of paying these taxes." Id. at 198, 542 N.E.2d at 652. In Hile, we reversed the BTA's decision and cited Weiss, supra, holding that "* * * an officer who is in no way connected with the preparation or filing and payment of Ohio sales taxes is not liable [therefor]." Hile at 199, 542 N.E.2d at 653.
In Kihm, the appellees, Joseph H. Kihm and William Ridmann, were the presidents of separate contracting firms which did remodeling work for the taxpayer company, Central Oyster House Inc., a restaurant. The restaurant defaulted in payment of outstanding obligations, including charges for the work done by appellees' contracting firms. Appellees acquired the stock of Central Oyster House to continue the operation of the restaurant in order to obtain payment owed to their firms. Appellees Kihm and Ridmann became president and treasurer, respectively, of Central Oyster House, and a general manager, an accountant, and a bookkeeper were hired to operate the restaurant. Neither appellee participated in management or operation of the restaurant. They received no salary, dividends or benefits. The Tax Commissioner argued that "liability [for unremitted sales taxes] attaches [to appellees] under R.C. 5739.33 simply because a person is a corporate officer or director and, thus, ultimately has the power to supervise corporate employees." Kihm at 77, 24 O.O.3d at 150, 434 N.E.2d at 1355. However, we rejected that argument, as did the BTA, stating that the record was devoid of any evidence that appellees were directly responsible for the preparation or filing of returns or the making of payments.
The record in the present case indicates that on May 9, 1984, at the request of Rowena Group, who was then entitled to receive all the stock of Bob, Inc., Smith agreed to accept the title of president of Bob, Inc. He accepted as a favor to the family of his deceased friend in order to take care of Robert Group's unfinished financial transactions. Apparently, even before he became president, Smith had arranged for the sale of some equipment from one of the restaurants owned by Bob, Inc. He deposited the proceeds of that sale into his real estate trust account and paid back bills, including delinquent sales taxes. The two remaining restaurants were operated by other individuals: Casa Pasta by Chef de Marchi, and Mr. Gatti's Pizza by Rowena Group and Janet Tomas.
The record also discloses that Ken Bailey, an employee of Fred B. Smith Associates, had been given limited check-writing authority by Robert Group, during his lifetime. Bailey possessed authority to prepare payroll reports and issue payroll checks. It is significant that Bailey's authority had come from Robert Group and not from Smith. In addition, Bailey may have signed sales tax returns on behalf of Bob, Inc., at the request of a sales tax examiner. There is no indication that Smith knew of, or authorized, the signing or preparation of sales tax returns or the payment of sales taxes during the audit period.
From our review of the record we conclude there is no significant probative evidence that Smith, as president of Bob, Inc., was directly responsible for filing returns or making payments of sales taxes. The bare title of president of Bob, Inc. did not make Smith personally liable under the statute for unpaid sales taxes. Furthermore, Smith could not have been responsible under the BTA's theory for the tax periods of October and December 1985, because he had been removed as president on August 28, 1985.
The decision of the BTA is unreasonable and it is reversed.
Decision reversed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.