STATE v. DISTRICT COURT OF CLEVELAND CTY.

STATE v. DISTRICT COURT OF CLEVELAND CTY.
1991 OK CR 68
816 P.2d 552
Case Number: S-90-920
Decided: 06/27/1991
Oklahoma Court of Criminal Appeals

Appeal from the District Court, Cleveland County.

ACCELERATED DOCKET ORDER

[816 P.2d 553]

¶1 The State of Oklahoma perfected this appeal from an order of the District Court of Cleveland County dismissing Case No. CF-89-1362(T). The appeal was assigned to the Accelerated Docket of this Court. See Section XI, Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp. 1990, Ch. 18, App. The propositions or issues in the appeal were presented to this Court in oral argument on May 23, 1991, pursuant to Rule 11.5(c). At the conclusion of oral argument, the matter was taken under advisement. We now render this decision.

¶2 Town Tavern, Inc., an Oklahoma corporation, was engaged in the restaurant business selling food and beverages in Norman, Oklahoma. Bette Maffucci (hereinafter "Defendant") was the president, and apparently a major stockholder and director, of Town Tavern, Inc. Allegedly, taxes collected on sales of food and beverages made by Town Tavern, Inc., during the period January, 1986, through January, 1988, were not remitted to the State of Oklahoma.

¶3 The State filed an Information charging Defendant personally with twenty-one (21) counts of the crime of embezzlement

¶4 The issue now before us is whether, when a corporation is the entity making [816 P.2d 554] sales of tangible personal property or services in Oklahoma and is the licensed vendor under the sales tax statutes, a corporate officer can be criminally liable, under 68 O.S.Supp. 1986 § 1361 [68-1361](E), for embezzlement for failing to remit sales taxes collected on behalf of the corporation. We answer in the negative and affirm the dismissal of this criminal action by the District Court.

68 O.S.Supp. 1986 § 1361 [68-1361](E), provides in pertinent part that:

". . . [a]ny vendor who willfully or intentionally fails to remit the tax, after the tax levied by this article was collected from the consumer or user, and appropriates the tax held in trust to his own use, or to the use of any person not entitled thereto, without authority of law shall be guilty of embezzlement." (Emphasis added.)

"Vendor" is defined in the sales tax code as "[a]ny person making sales of tangible personal property or services in this State, the gross receipts or gross proceeds from which are taxed by this article." 68 O.S.Supp. 1985 § 1352 [68-1352](R)(1). The term "person" includes individuals and corporations. 68 O.S.Supp. 1985 § 1352 [68-1352](I). Vendors who are regularly and continuously engaged in a business at an established place of business and make sales subject to the sales tax code are required to secure a written permit from the Oklahoma Tax Commission. 68 O.S.Supp. 1985-1987, § 1364(A) [68-1364].

¶5 The State does not controvert the fact that Town Tavern, Inc., holds the sales tax permit and is the "vendor" that collected the sales taxes at issue in this proceeding. The State argues that Defendant should be criminally liable for failing to remit the sales taxes.

¶6 As did the District Court, we find it convincing that, when imposing civil liability in subsection A of section 1361

¶7 The Oklahoma Tax Commission, in an amicus curiae brief, argues that Defendant has aided and abetted the crime of embezzlement and therefore is liable as a principal under 21 O.S. 1981 § 172 [21-172]. While such an argument seems compelling, it is not applicable under the facts of this case.

¶8 In accordance with the foregoing, the order of the District Court of Cleveland County sustaining Defendant's motion to quash the Information due to insufficient evidence and dismissing Case No. CF-89-1362(T) is AFFIRMED.

¶9 IT IS SO ORDERED.

/s/ James F. Lane

JAMES F. LANE, Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN, Vice Presiding Judge

/s/ Ed Parks

ED PARKS, Judge

Footnotes:

1 The Information described each count as follows:

EMBEZZLEMENT OF OKLAHOMA SALES TAXES, 68 Oklahoma Statutes 1361(E) . . . that on or about [____], in Cleveland County, State of Oklahoma, the Defendant, then and there being, did knowingly, wilfully and intentionally divert, misappropriate and embezzle the sum of [____], said money being the lawful property of the OKLAHOMA TAX COMMISSION; that, during the month of [____], the Defendant did, pursuant to her duties as a vendor, doing business under the name TOWN TAVERN, INC., collect from consumers the above-noted monies as SALES TAXES, which monies were held by her, as trustee, on behalf of the OKLAHOMA TAX COMMISSION and did, thereafter, knowingly wilfully and intentionally divert, misappropriate and use said monies for her own use and benefit, without authority of law and to a use and purpose not in the due and lawful execution of her trust.

2 Subsection A of section 1361 provides in pertinent part:

". . . Every person required to collect any tax imposed by this article, and in the case of a corporation, each principal officer thereof, shall be personally liable for said tax."

3 State v. Humphrey, 620 P.2d 408, 409 (Okl.Cr. 1980).