Gregory v. NC Dept. of Revenue

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379 S.E.2d 51 (1989)

In the Matter of Lewis P. GREGORY, Jr. v. NORTH CAROLINA DEPARTMENT OF REVENUE and Employment Security Commission of North Carolina.

No. 8821SC643.

Court of Appeals of North Carolina.

May 16, 1989.

*52 Pfefferkorn, Pishko & Elliot by David C. Pishko and Ellen R. Gelbin, Winston-Salem, for petitioner appellant.

Atty. Gen. Thornburg by Asst. Atty. Gen. Marilyn R. Mudge, Raleigh, for respondent appellee North Carolina Dept. of Revenue.

Staff Atty. Kathryn S. Aldridge, Raleigh, for respondent appellee Employment Sec. Com'n, of North Carolina.


Petitioner, a professional level employee of the North Carolina Department of Revenue responsible for the collection of delinquent taxes, was discharged for failing to timely file, or to request an extension of time in which to file, his 1985 and 1986 individual state income tax returns. His claim for unemployment benefits was denied by the Employment Security Commission, and the decision was affirmed by the Superior Court. That petitioner neither timely filed the tax returns required by law nor applied for extensions of time within which to file has been established and is no longer disputed. The only question petitioner raises is whether these facts support the Commission's conclusion that he was discharged for misconduct connected with his work under G.S. 96-14. The trial judge held that they do, and we agree.

Misconduct in connection with work is defined in our Employment Security Law at G.S. 96-14(2) as:

... conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

Petitioner fallaciously argues that his failure to file his tax returns on time did not constitute misconduct under this statute because the Department has no rule or policy requiring employees to file their returns on time. Petitioner's conduct being forbidden by statute a work rule to the same effect was unnecessary. Furthermore, a finding of misconduct does not necessarily depend upon the violation of a specific work rule. Williams v. Burlington Industries, Inc., 318 N.C. 441, 349 S.E.2d 842 (1986). Since the Department of Revenue administers and enforces our tax laws it is obviously in its interest, as well as that of the public, for its supervisory employees to comply with the laws they are employed to enforce; and that petitioner's delinquencies were contrary to that interest is self-evident. And it is immaterial that it has not been shown that petitioner's delinquencies harmed the Department; harm to the employer is not an element of misconduct as defined by G.S. 96-14(2), which speaks only of conduct and does not mention consequences.


ARNOLD and JOHNSON, JJ., concur.