Form St 04-21 - Recommendation For Decision (Page 4 of 7) in pdf

Form St 04-21 - Recommendation For Decision Page 4

16.

On October 14, 2003 the Department issued NPL No. 8667 to Taxpayer

pursuant to 35 ILCS 735/3-7 as a person who was responsible for paying to

the Department the sales tax obligations of ABC for the months of January

2000 through March of 2000. Dept. Ex. No.1.

Conclusions of Law:

The statute that imposes personal liability for paying to the state unpaid corporate

Retailers’ Occupation Tax and Use Tax obligations provides as follows:

Any officer or employee of any taxpayer subject to the

provisions of a tax Act administered by the Department

who has the control, supervision or responsibility of filing

returns and making payment of the amount of any trust tax

imposed in accordance with that Act and who willfully fails

to file the return or make the payment to the Department or

willfully attempts in any other manner to evade or defeat

the tax shall be personally liable for a penalty equal to the

total amount of tax unpaid by the taxpayer including

interest and penalties thereon. 35 ILCS 735/3-7(a).

This section of the statute sets forth two tests for determining whether a person

has personal liability for unpaid sales tax incurred by a corporation. First, the person must

be responsible for accounting for and paying the tax due. Second, the individual must

willfully fail to file or pay the tax shown to be due on the payroll tax returns.

In this case, once the Department introduced into evidence the Notice of

Deficiency under the Director's certificate, its prima facie case was made on the

questions of responsibility and willfulness. Branson v. Dept. of Revenue, 168 Ill.2d 247,

261-262 (1995). The burden then shifted to the Taxpayer to overcome the Department’s

case. Id. To rebut the Department’s prima facie case, Taxpayer had to come forward with

sufficient evidence to disprove the Department’s case. Id., 168 Ill.2d at 262.

Form St 04-21 - Recommendation For Decision Page 4