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                            TAX COURT OF NEW JERSEY
                            DOCKET NO. 16-02-0920-91ST

HARRY SKAPERDAS, GEORGE    :
SKAPERDAS, AND BARRY    :
BIRKENHOLTZ,            :
                    :            
        Plaintiff(s),    :
                    :
    v.                :                                                     :
DIRECTOR, DIVISION OF     :
TAXATION,                :
                    :
        Defendant(s).    :

            Decided: May 27, 1994

            Harold Leib, for plaintiff
            (Harold Leib, P.A., attorney,
            Harold Leib, Elisa Leib, and
            Richard I. Miller on the Brief)
            
            Lillian E. Brown, Deputy Attorney
            General, for defendant
            (Deborah T. Poritz, Attorney General
            of New Jersey, attorney)

SMALL, J.T.C.

    The issue for determination in this case is whether three individuals who were officers, directors, and shareholders of a corporation are personally liable for that corporation's unpaid New Jersey Sales and Use Tax. N.J.S.A. 54:32B-1 et seq.
    Plaintiffs appeal from a determination of the Director that they are each personally liable for sales tax of GBF Factory Outlet, Inc., for the period 1984 through 1988, in the amount of $57,836 plus penalty and interest. By agreement of the parties, the only issue before the court at this point is the existence of personal liability of each of the three plaintiffs. Only if

personal liability is found will the court address the issue of the amount of such liability.
    The statutory language imposing personal liability for corporate sales tax liability, N.J.S.A. 54:32B-2(w) and -14, provides a standard for that determination. The first of these sections defines a person required to collect sales taxes as

    [E]very vendor of tangible personal property or service. . . . includ[ing] any officer or employee of a corporation or of a dissolved corporation who as such officer or employee is under a duty to act for such corporation in complying with any requirement of this act. . . .

    [N.J.S.A. 54:32B-2(w).]

    The second section relevant to the present inquiry provides that

    Every person required to collect any tax imposed by this Act shall be personally liable for the tax imposed, collected, or required to be collected under this act.

    [N.J.S.A. 54:32B-14.]

    Unfortunately, the Director has never promulgated detailed regulations defining personal liability, pursuant to N.J.S.A. 54:32B-24(1). This court addressed the issue of personal liability for the first time in a reported decision in Cooperstein v. Div. of Taxation, 13 N.J. Tax 68, 71 (Tax 1993), appeal docketed, No. A-4088-92T3 (App. Div. April 23, 1993).
    The determination of the issue of personal liability is, by its nature, extremely fact-sensitive. Accordingly, the court's

discussion of the legal issues must follow a careful description of its factual findings. Particular attention should be paid to these facts, as this court's ultimate conclusion is that two of the plaintiffs in this case are personally liable for the sales tax and the third plaintiff is not.
    Plaintiffs, Harry Skaperdas, George Skaperdas and Barry Birkenholtz were involved as business associates in several ventures in the fur industry. In late 1983 and early 1984, they established a corporation known as GBF Factory Outlet, Inc. ("GBF"), a subchapter S corporation for federal income tax purposes.
    The principal activity of GBF was the operation of a retail store selling fur coats in Secaucus, New Jersey. During the period for which the underlying tax assessment was made, each of the three plaintiffs was a director and corporate officer of GBF, and owned corporate shares as detailed in the chart at page 8, infra.
    During the relevant time period, there was a fourth "partner," Michael Simons, who was employed as the general manager of the retail facility of GBF. Although Simons was not an officer, shareholder, or director of GBF, he ran the day-to-day operations of the corporation. Simons, whose employment could be terminated by any of the three plaintiffs in this case, hired and fired all store personnel, arranged for the acquisition of all goods to be sold, and arranged for lines of credit for the corporation. However, actual signatures for the lines of credit were made by the three plaintiffs.

    Simons visited with George Skaperdas and Barry Birkenholtz in their Manhattan office at least once a week, and more often during the busy fall season. At those meetings, it appears that Simons reported to George Skaperdas and Barry Birkenholtz about the business and may have submitted checks for their signatures. Check signing authority was vested with the three plaintiffs but not with Simons. It appears that the information necessary to prepare sales tax returns was furnished by Simons to Sheldon Friedman, the corporation's accountant, who prepared those returns which were signed at different times by Friedman, Simons or one of the three plaintiffs.
    Although GBF's corporation business tax returns show that the three plaintiffs devoted 5" to 50" of their time to GBF, they testified that they devoted less than that amount of time. While corporate business tax returns indicated that corporate-owned vehicles were used for corporate purposes, Birkenholtz and George Skaperdas testified that those vehicles were used exclusively for personal purposes. I conclude that George Skaperdas and Barry Birkenholtz took a cavalier attitude with regard to conforming their actual activities to which they testified and their tax reporting obligation. This brings into question the accuracy of their testimony. Thus, although they testified that Michael Simons ran the GBF operation, I conclude that during their weekly meetings they were kept informed of the business operations in Secaucus.
    On the other hand, Harry Skaperdas apparently did not participate or have knowledge of these business meetings. In

addition to his signing corporate documents, his sole involvement with GBF was that during busy periods he would go to the Secaucus store and perform certain tailoring or alterations on the furs as well as assist the sales staff.
    Additionally, it should be noted that all three plaintiffs used GBF losses to reduce their personal income tax liability, and they received substantial (between $10,000 and $30,000) cash distributions from GBF in 1988.
    The uncontradicted testimony at trial indicates that for certain retail sales involving cash, there was a pattern of under reporting gross receipts for various tax purposes. The plaintiffs indicate that Simons, their former "partner," was responsible for this scheme, which appears to have resulted in an understatement of gross receipts for sales tax purposes. Only after the three plaintiffs sold their interests in GBF to Simons did they discover these alleged misdeeds. The terms of the sale of GBF to Simons from the three plaintiffs involved Simons giving notes to the plaintiffs. Payments on those notes are delinquent. Plaintiffs and Simons are in litigation concerning this delinquency.
    Thus, it appears that Simons gave false information to Friedman, the accountant, as well as to the three plaintiffs, which resulted in their signing tax returns reflecting understated gross receipts, gross sales, and gross profits. There is no evidence that the amount of sales tax remitted differed from the sales tax liability reported on the sales tax returns. Thus, at the time plaintiffs signed checks as payment of sales tax, the returns and

the checks matched up. The questions for this court to resolve, in part, are whether plaintiffs knew or should have known of the sales tax deficiency, and whether they derived any benefit from GBF's failure to accurately report its sales tax liability.
    In Cooperstein v. Div. of Taxation, supra, Judge Andrew thoughtfully discussed the law imposing personal liability for persons required to collect sales taxes, such persons being defined under N.J.S.A. 54:32B-2(w) as:
        [E]very vendor of tangible personal property or services....Said terms shall also include any officer or employee of a corporation...who as such officer or employee is under a duty to act for such corporation in complying with any requirement of this act (emphasis added).

    Judge Andrew carefully distinguished between those who had a "duty" or "obligation" to collect a tax and those who had the "authority" to do so. 13 N.J. Tax at 79-81. Citing relevant federal and New York case law, he concluded that officers of a corporation, by virtue of their office alone, had the authority to collect sales tax. However, the duty or obligation to collect the tax could only be determined after an examination of the facts in each case. As Judge Andrew stated:
        [U]nexercised authority, without more, is insufficient to impose personal liability upon a corporate officer. The statutory language implicitly requires a fact-sensitive pragmatic inquiry into the corporate activities of an officer or employee before personal liability can be imposed.

        [Cooperstein, supra, 13 N.J. Tax at 81.]

Judge Andrew then listed nine factors which should be considered in analyzing whether a corporate officer has a duty or obligation to collect sales tax. 13 N.J. Tax at 88.
    I find no better way to analyze the case at bar than by constructing the following table, which analyzes the authority and activity of each of the three plaintiffs relative to the nine factors (I note at the outset, that although the plaintiffs wish to have this court consider the liability of Michael Simons, he is not before this court. Although he may have personal liability for these taxes, such liability does not in itself diminish the obligations of the three plaintiffs, who are in fact before me).

distinguishable from this case as it relates to Messrs. George Skaperdas and Barry Birkenholtz.
    In Cooperstein v. Div. of Taxation, supra, the plaintiff was not involved in day-to-day operations, did not sign checks, nor was he consulted as to the payment of corporate debts. Moveover, he received no income, salary, or commission, and he was not a shareholder. 13 N.J. Tax at 76-77. As in Cooperstein, it appears that in the present case plaintiffs did not have knowledge of the deficient sales taxes until after the deadline for the payment of such taxes. However, George Skaperdas and Barry Birkenholtz exercised a level of supervision over Michael Simons and GBF's daily operations far greater than did Mr. Cooperstein over his subordinates. In Chevlowe v. Koerner, 95 Misc 2d 388, 407 N.Y.S.2d 427 (N.Y. Sup. Ct. 1978), the officer of the corporation did not participate in the day-to-day management of the corporation, did not sign checks, and did not sign sales tax returns. In Vogel v. New York State Department of Taxation and Finance, 98 Misc.2d 222, 413 N.Y.S.2d 862 (N.Y. Sup. Ct. 1979), the officer shareholder did not participate in the day-to-day operations of the corporation.
    On the other hand, a review of the reported cases imposing personal liability for unpaid sales tax reveals a greater similarity to the facts in this case. In Cohen v. State Tax Commission, 128 A.D.2d 1022, 513 N.Y.S.2d 564 (App. Div. 1987), the officer taxpayer argued that because he was not involved in the day-to-day operations of the corporation, he should not be held responsible for unpaid sales taxes. The New York appellate court,

operating under a statutory standard identical to New Jersey's (see Cooperstein, supra), found that responsibility would attach to an individual who negotiated loans, was consulted about the corporation's activities, and participated in the hiring of at least one employee. In the case at bar, the participation of both Birkenholtz and George Skaperdas with the management of GBF was at least as great as that of the plaintiff in Cohen.
    In In re Blodnick, 124 A.D.2d 437, 507 N.Y.S.2d 536 (App. Div. 1986), a New York Court found personal liability in part because the officers could point to no one, other than themselves, who would have personal responsibility for the collection of tax. In contrast, plaintiffs here point to Michael Simons as a responsible person. But even if plaintiffs are correct, I find no case which stands for the proposition that: if another individual is also responsible, or perhaps has greater responsibility, the lesser involved individuals are absolved of all liability. On the contrary,
        the statute expressly applies to "any" responsible persons not just to the person most responsible for the payment of taxes. There may be - indeed there usually are multiple responsible persons in any company.

        [Barnett v. Internal Revenue Service, 988 F.2d 1449, 1455 (5th Cir. 1993)(emphasis added).]

    See also, In re Ragonesi v. New York State Tax Commission, 451 N.Y.S.2d 301 (App. Div. 1982), In re Massa, 477 N.Y.S.2d 838 (App. Div. 1984), In re Malkin, 412 N.Y.S.2d 186 (App. Div. 1978), In re Capoccia, 481 N.Y.S 2d 476 (App. Div. 1984).

    This court finds that Barry Birkenholtz and George Skaperdas derived significantly different benefits from GBF than did Harry Skaperdas, and that their involvement in the management of GBF was also significantly different from that of Harry Skaperdas. Michael Simons reported directly, periodically, and frequently to Barry Birkenholtz and George Skaperdas as the operators of GBF. They were sophisticated businessmen with a comprehensive understanding of business and finance. Although they may not have known about Simons' underreporting, their failure to detect it was a result of their inattention to their managerial and monitoring responsibilities, given their active role in receiving reports from Simons. On the other hand, Harry Skaperdas was a skilled tailor who received no business reports, although he did occasionally sign checks, tax returns, and other documents. His lack of sophistication and involvement make his role in the running of GBF analogous to that of the "innocent spouse" in federal income tax liability cases. See 26 U.S.C.A. §6013(e) (Internal Revenue Code § 6013(e)).
    Although Barry Birkenholtz, George Skaperdas, and Harry Skaperdas had apparently similar roles as shareholders and officers of GBF, and the dividends they received were proportional to their shareholdings, Barry Birkenholtz and George Skaperdas had company cars, whereas Harry Skaperdas did not. Although use of the company cars was intended for business purposes, the evidence reveals that these not inexpensive vehicles (a BMW and a Chevy Trail Blazer) were used for the personal tax-free benefit of Barry Birkenholtz

and George Skaperdas, rather than for the business of GBF. In fact, the use of the cars by Birkenholtz and George Skaperdas, but not by Harry Skaperdas, may be reflective of the greater role they played in the management of GBF. One could speculate that the corporation's payment for these cars was in lieu of compensation to Birkenholtz and George Skaperdas. In short, they derived substantially different financial benefits from the corporation than did Harry Skaperdas.
    In sum, the different managerial roles and the various benefits received are the bases for this court's conclusion that the personal liability of Barry Birkenholtz and George Skaperdas, on the one hand, was different from that of Harry Skaperdas on the other.
    Moreover, a careful analysis of the facts in this case, as compared to the facts in the decided cases reviewed by this court, reveals that the involvement of George Skaperdas and Barry Birkenholtz falls on the side of those officers held liable because of their involvement in the actual and financial management of the company. On the other hand, Harry Skaperdas, although he had authority similar to the other two plaintiffs, played a distinctly different role. As this court stated in Cooperstein, authority alone is not sufficient to impose personal liability for unpaid corporate sales tax. 13 N.J. Tax at 81. Having further heard the testimony and observed the demeanor of all three plaintiffs, I

have concluded that George Skaperdas and Barry Birkenholtz were under a duty and obligation to collect sales tax. Harry Skaperdas was not.

    Plaintiffs raise several additional arguments:

    1. Plaintiffs should be absolved of individual liability because they discharged their corporate responsibilities under the New Jersey Business Corporation Act (N.J.S.A. 14A:1-1 et seq).

    The definitions of those who are responsible for the collection of sales tax and the imposition of liability are found in the sales tax statute. There is no reason why corporate officers and directors who meet their obligations under one statute should be absolved of obligations under another statute. There is no reason why obligations under the two statutes should be identical. There is no reason why obligations under the sales tax statute should be limited by the obligations under the Business Corporation Act.

    2. Plaintiffs should be absolved of liability because their action was not the proximate cause of the sales tax deficiency.

    Assuming that Michael Simons was falsifying records, and assuming that his activities were the proximate cause of the corporate understatement of sales tax, is he the only responsible party? The statute does not speak of a single responsible individual. There may be one or more. See quotation from Barnett v. Internal Revenue Service, supra, at this slip opinion page 11.

Clearly, all of the plaintiffs and Michael Simons had authority to collect sales tax, yet authority alone is not sufficient to impose individual liability. Cooperstein, supra, 13 N.J. Tax at 81. I have determined that because of their intimate involvement in day-to-day operations of GBF, George Skaperdas and Barry Birkenholtz had a duty and obligation to supervise Michael Simons and to inform themselves of his activities. George Skaperdas and Barry Birkenholtz may have been inattentive to that duty, and thus permitted sales tax to remain unpaid. The fact that Mr. Simons may have lied to them and cheated them does not absolve them of their legal responsibility. The fact that they may have an independent cause of action against him for his activities which may be the proximate cause of the corporate sales tax deficiency does not absolve them of their duty and obligation.

    3. Because the Director has not adopted regulations with respect to personal liability, no one can be held personally liable for sales tax.

    Our Supreme Court's formulation of the factors which would lead an administrative agency to adopt regulations clearly suggests that the better practice would be for the Division of Taxation to adopt regulations defining a responsible corporate officer under the New Jersey Sales and Use Tax. See Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J 313, 331 (1984). Nevertheless, failure to follow the better practice will not in itself invalidate the agency's action when the existing statutory language and interpretive case law is sufficiently clear to put taxpayers on

notice of the standards to be applied. See Equitable Life Mortgage v. N.J. Div. of Taxation, 151 N.J. Super 232, 240 (App. Div. 1977), certif. denied, 75 N.J 535 (1977), and Chemical Realty Corp v. Taxation Div. Director, 5 N.J. Tax 581 (Tax 1983), aff'd o.b.,
6 N.J. Tax 448 (App. Div. 1984).
    The fact that this court can discern from the decided case law nine specific factors to be considered in determining personal liability makes it clear that no further detailed regulation was required under the Administrative Procedures Act, N.J.S.A. 52:14B-1 et seq., for the Director's imposition of personal liability on a corporate officer. Cooperstein, supra, 13 N.J. Tax at 88.

    4. The statute imposing sales tax liability on the plaintiffs violates due process because it is unconstitutionally vague.

    For the same reasons that a regulation is not required under the Administrative Procedures Act, the statute and existing interpretive case law are adequately specific to resist an argument that the standards are unconstitutionally vague.
    In determining whether a statute is unconstitutionally vague, our Supreme Court has set out a hierarchy of tests. Criminal statutes are subject to greater scrutiny than are civil statutes; statutes limiting fundamental constitutional rights (i.e., free speech or free exercise of religion) are subject to greater scrutiny than those which infringe on rights not protected by the Constitution; different standards apply when the challenge to a statute is based on a specific application as opposed to a facial

challenge for all applications of the statute. See generally, State v. Cameron, 100 N.J. 586, 592-594 (1985). See also, Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983); State v. Lee,
96 N.J. 156, 164-167 (1984); State v. Afanador, 134 N.J. 162, 170 (1993); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499, 71 L.Ed.2d 362, 372 (1982) and cases cited at footnotes 10 through 15.
    In this case, a statute imposing personal liability (an economic regulatory function as opposed to a statute imposing criminal liability) is challenged as it is applied to three individuals. No fundamental first amendment rights are at issue. The level of scrutiny to be applied by the reviewing court is of the lowest level in determining if the statute is unconstitutionally vague. The application is based on an intelligent reading of the statute and an analysis of existing sister state interpretive case law. This court in an earlier determination was able to discern specific areas for analysis required by the statute.
    [I]f a statute is not vague as applied to a particular party, it may be enforced even though it might be too vague as applied to others.

    [State v. Cameron, supra, 100 N.J. at 593.]

    By accepting corporate cars, receiving reports from Michael Simons, providing general supervisory oversight of Michael Simons' activities, reserving for themselves signing authority and exercising that authority, George Skaperdas and Barry Birkenholtz had a duty to act for GBF in complying with New Jersey's Sales and

Use Tax Act. The standards of the statute are not vague when applied to these acts.
    As applied to Harry and George Skaperdas and Barry Birkenholtz, the statute imposing personal liability for New Jersey sales tax, when viewed through the lens of prior interpretive case law, is in sharp focus. Persons of common intelligence need not guess at its meaning nor could they differ as to its application. See State v. Afanador, supra, 134 N.J. at 170 (citing Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).
    Harry Skaperdas is relieved of personal liability with respect to the sales tax obligation of GBF. The court will proceed to the issue of the amount of the liability for George Skaperdas and Barry Birkenholtz.