*1 sum, respondent WHITE, J., authority without separate concurs in opinion prevent filed. exercising the railroad from its
rights under a collective bargaining agree- PRICE, J., WHITE, in opinion concurs ment issuance of a uniform order to cover J. plaintiffs all in all FELA cases in the circuit WHITE, court of City Judge, concurring. of St. Louis. Plaintiffs’ claims, collectively individually, for a folly I principal opinion, concur but protective prevent order to the railroad from separately express write my understand- requiring provide them to medical documen- scope of the limited of the ruling. Court’s tation or to pre-empted attend an FCE are principal opinion holds, As the the blanket by the RLA The RLA arbitral board de- protective by respondent, order issued ab- signed to hear disputes the minor any showing attempt of these sent of an to abuse the parties discovery process possesses jurisdiction particular in the exclusive cases that of this subject dispute, are the effectively of this dispute. holding, In so this Court does not destroys ability relators’ to enforce their purport to rule on propriety of the rail- rights under the bargaining agree- collective any road’s actions in FELA cases. The issue ments. It was an abuse of discretion for the before this Court is not whether the rail- trial sweeping protec- court to enter such a gives road’s action the railroad an unfair tive order. advantage protective or whether the order not, however, I do granted. principal understand the should be The issue is whether the opinion to tie the hands of the trial court “in mandatory arbitration of the RLA finding the event of a of bad faith in an control. plaintiff’s individual case.”1 In that situa- Plaintiffs are not without remedies. Their tion, the powers “conventional trial court assertions that the railroad’s actions are in- parties control litigation”2 and the in- plaintiffs’ tended to interfere ability power with appropriate clude the to fashion an proceed protective remedy, including protective with their FELA actions or- and that der, necessary when it is protection for the the railroad’s true motive is to cut off FELA plaintiffs. individual liability for wages prevail future could Moreover, arbitration. the railroad’s exer- Recognizing sweep the limited of its hold- any rights cise of it has to hold an investiga- ing, I concur in principal opinion. disciplinary tive or hearing deny should not
plaintiffs right to maintain their FELA Additionally,
actions. in the FELA case it-
self, the trial court remains authorized to
employ its powers conventional trial court parties control the litigation in the GARLAND, Respondent, Burton D. underlying FELA action. reasons, For the foregoing respondent REVENUE, Appellant. DIRECTOR OF protective authorized to issue the orders. No. 79920. adjustment The RLA pur- board established possesses suant to the RLA juris- exclusive Supreme Missouri, Court of disputes. diction of these minor prelimi- En Banc. nary prohibition order in is made absolute. Jan. 1998. BENTON, C.J., PRICE,
LIMBAUGH, ROBERTSON and
HOLSTEIN, JJ., concur.
1. at 823. at 824.
826
part part, and reversed and the cause proceedings further remanded consistent opinion. with this *3 I. August 1993, April
From Burton as chief of Garland served executive officer corporations. During the period, two corporations employer withholding filed tax periods returns for the October to December 1991, 1992, January September and Janu- ary Despite appro- filing June returns, priate corporations tax failed to employer withholding remit taxes Both due. corporations failed to file an with- employer holding period tax return for the October Nixon, Gen., (Jay) Jeremiah W. Atty. Evan 1994, December 1992. In of the director Buehheim, Gen., Atty. J. Asst. Jefferson (the “director”) of revenue issued a notice City, Appellant. for deficiency sought employer and to collect all withholding personally taxes due from Gar- Charles, Louis, Harry Respondent. St. for authority of land under section 143.241.2. ROBERTSON, Judge. sought Garland review in the Administra- 143.241.2, Section Supp.1993, RSMo makes (“AHC”). Hearing tive Commission In Au- corporation an officer of a “who has direct 1995, gust the AHC determined that section ... or responsibility filing control [em- for personally only 143.241.2made Garland liable ployer withholding personally returns” tax] employer withholding for taxes Oc- due from for hable the amount of when 1992, through tober December since the cor- corporation fails to file with the return porations filed returns periods for the other 143.751.4, director of revenue. Section question. 1994, imposes “equal penalty RSMo to the [employer withholding] total amount of the In anoth- October the director issued evaded, against person tax or not collected” notice, deficiency seeking er this time required to collect tax and over the who penalty imposed by collect n willfullyfails to do so. in this The issue case periods 143.751.4 the same for covered permit per- both is whether these statutes Again, sought earlier Garland assessments. sonal imposition penalty and the of a review in the AHC. The AHC found Garland person the same when statutes. violates both for the taxes liable assessment for the hold that the We statutes are clear on their due from October to December taxpayer face and that a violates who both previous im- because the AHC decision had may section 143.241.2 and section 143.751.4 posed liability under section 143.241.2. The personally be liable for taxes both the due pre- apparently read the statutes to AHC penalty. generally We also hold imposition penalty of when clude the limitations, 143.711.1, the statute of required payment. also that, applies RSMo in this ease addition, the AHC also decided that exceptions below, with the director noted limitations, three-year statute of impose penalty of revenue’s efforts to 143.711.1, imposing barred director from jurisdiction began this case too late. Our period August June 1991 to V, on rests article the Missouri section 3 of periods July September 1992. As to Constitution. decision of the Adminis- Hearing January April trative affirmed in Commission is the AHC employer withholding assessment, upheld the since the count for and over director’s (3) or fail to collect paid. had not been tax and who tax truthfully over account for tax withholding to the state. II. punishes non-payment This statute Supp.1993, Section RSMo re withholding It contains scienter taxes.
states, part: in relevant violations. punishing willful quirement, Any any ... ... officer “in other addition to Section control, supervision or re- direct Thus, stat provided by law.” penalties making sponsibility filing returns and an designed provide alternative ute is payment imposed the amount funds which the director source of accordance with sections 143.191 to *4 may unpaid employer with recover revenue 143.265, and fails to return who file such Instead, section 143.751.4 holding taxes. per- with the director of revenue be shall punishment hope deterring in warns amounts, sonally such includ- assessed for willfully fail persons pay who to would interest, tax penalties additions to fails, punishment follows. tax. If deterrence thereon.... in find that the AHC erred decid We (1) corpo- an This statute makes officer of a both 143.241.2and 143.751.4 ing that sections (2) super- who ration bears direct control or in apply this case. cannot employ- responsibility filing vision over or for (3) withholding ee tax and who fails to file a ability to a stat This Court’s construe withholding personally tax return liable ambigui depends on existence an ute owed, together with interest and Bros., v. ty. State ex rel MHTC Alexian penalties. (Mo. 1993). banc When 474 848 S.W.2d authority ambiguity, there is no Court’s liability is a Section 143.241.2 strict applying to the statute. Words is limited It requirement. statute. contains no scienter by legislature meaning used have imposes liability It failure report em they commonly are unless which understood ployee withholding filing the Simply taxes. 1.090, in the law. otherwise defined Section proper personal liability, return avoids even Exp., 1994; Abrams Ohio RSMo Pacific paid.1 if tax owed is not The statute’s (Mo. 1991). A banc legislature’s is as lan clear as the money “a “penalty” is sum of made recovera guage: provides The an law additional source by the ... for the serious ble ... state less corpo which satisfy the Director can in offenses not mala se.” Webster’s Third unpaid withholding ration’s income tax liabili Dictionary (1976). New International ty- in ambiguity is no section 143.751.4. There 143.751.4, 1994, impos RSMo anticipates punishment Section vio- person It when a personal liability. es a different kind of ambiguity is an creat- lates the statute. Nor read when that section is with section ed collect, Any person required to truthful- 143.241.2. for, pay ly account over the tax im- posed by sections 143.011 to 143.996 who despite clari argues that Garland willfully fails to collect such tax or truthful- language, is ty legislature’s this Court ... ly account for and over such in judicial a federal bound nevertheless shall, penalties in provid- addition to other 6672(a), sec. terpretations 26 U.S.C. law, penalty equal ed liable to be nearly that language to contains identical collected, ... the total amount of tax because, in section 143.751.4. This found paid for and over.... or accounted asserts, section RSMo Garland (2) (1) “[a]ny used in sections term persons 143.751.4 directs Section have the mean- required truthfully or ac- to 143.996 shall same who are to collect ex- file and such return." Section 1. The 1994 amendment to section 143.241.2 added.) (Emphasis personal liability tends where officer "fails RSMo ing as when in comparable used ty context in employee state whom the owes the laws of the relating United States legislature’s the tax. The punish decision to taxes, federal income unless a different willfully those who cheat their employees meaning clearly required by without paying the employees’ state on the of sections 143.011 to (Emphasis 143.996.” behalf entirely consistent with the serious- added). ness of the violation to which section true, speaks. asserts,
It is as Garland that United Co., States v. Huckabee Auto 783 F.2d legislature’s plan The enacting these (11th Cir.1986), says “[although statutes is obvious: it wants the state to be statute, denoted a able to money recover its person from a real imposed nature, ... penal is not but is person when a fictitious —a —fails ‘simply ensuring a means of that the tax is pay. punish state also wants to those (Citation omitted.) paid.’” reject We Gar persons fail to attempt place land’s this Court under the withholding taxes money due when the interpretative thumb of the federal courts for already been employees. withheld from Be- First, a number of reasons. section 143.091 statutory cause the directs differ- applies only statutes, to “terms” used in the ent result than Hearing the Administration not federal interpretations court of the mean reached, Commission we reverse the decision ing of an entire statutory section. This sec *5 of the Hearing Administrative Commission merely tion saves state law necessity penalty imposed as to the by the for director defining already terms in defined federal law. period October to 1992. December Huckabee Auto purpose concludes that the 6672(a) of the 26 U.S.C. sec. penalty is to III. ensure an payment alternate source of if the 143.711.1, 1994, pro Section RSMo pay does not employer with- vides: holding tax. That is served in Mis- deficiency [A] notice of 143.241.2, souri shall be mailed to section not taxpayer years within three after the 143.751.4. We conclude that the Huckabee return was interpretation deficiency Auto filed. No shall is be not consistent with the meaning respect assessed or of the collected with to the “penalty” term in used sec- year for tion 143.751.4. which the return different was filed unless meaning “[A] is clearly required by the notice is year mailed within the three period.... 143.[751.4].”Section RSMo 1994. In this case the director mailed the second Second, to hold that sections deficiency notice to in Garland October 1995. 143.241.2 and 143.751.4 both pur serve the The AHC held that because returns for with-
pose of ensuring that
paid
the tax is
renders
holding taxes due
August
between
1991 and
one of the statutes redundant. We do not
30, 1992,
June 1992
July
were filed
presume
legislature
that the
engages in re
143.711.1
against
rendered assessments
acts,
Gar-
dundant
Hospital
Missouri
Ass’n v. Air
periods
for
untimely.
land
those
The
Com’n,
di-
Conservation
rector claims that section 143.711.1does not
(Mo.App.1994),especially
when the
apply. This is because section 143.711.1re-
in
statutory
used
clearly
sections
serves
only
“taxpayers”
fers
and the director
purposes.
two distinct
assessed Garland under section
Third,
money
at issue in
person
“any
willfully
which refers to
... who
withholding tax cases is collected or withheld
tax_”
fails to ...
over such
(Empha-
employees
paid
to be
to the state to the
added.)
sis
credit of
employees.
those
In
failing
money
over
The
employees,
interpretation
withheld from
director’s
desper-
is as
“person”
to whom
ate as
“person”
section 143.751.4 re-
it is incorrect. The
to whom
effectively
fers
parties:
cheats two
applies
required
the em-
“pay
is
ployee who uses the withholding as a
over such
person
pays
credit
tax.” A
over a
against his or her ultimate income tax
taxpayer.
liabili-
tax is a
The Administrative Hear-
First,
majority
Court
concluding
not
in
holds
Commission did
err
only
to federal law where State law
section 143.711.1
to taxes Gar-
need
look
years
ambiguous. That section 143.091 does
failed
more than three
is
land
“ambiguous”
filing
apply
terms
to the
her notice
defi-
itself
prior
director
cited
ignored. The non-tax cases
ciency in
October
ambigui-
majority
which hold that an
opinion,
stat-
ty
prerequisite
to construction of a
IV.
ute,
inapplicable
are
This Court
here.
expressed,
For the
reasons
decision
requires a con-
repeatedly held that 143.091
Hearing
the Administrative
Commission
law unless
struction consistent with federal
in part
part.
and
in
affirmed
reversed
143;
chapter
in
term is
defined
otherwise
proceedings
cause is
remanded
consistent
in applying
this is true even
statutes that
opinion.
with this
facially unambiguous
“neg-
terms
contain
like
ligence” and “dividend.”1
BENTON, C.J.,
LIMBAUGH
COVINGTON, JJ., concur.
“plain language” definition of
Nor is the
“penalty” appropriate. As this Court has
WHITE, J.,
part
in
in
concurs
and dissents
held,
legislature directed that the mean-
separate opinion
in
part
filed.
ings of
in the
are
to be
words
tax code
found,
here, in
majority
as the
holds
a dictio-
HOLSTEIN, JJ.,
PRICE
concur in
nary,
Goldberg
in federal
law.
but
WHITE,
opinion of
J.
Comm’n,
Hearing
Administrative
WHITE, Judge,
part
concurring
(Mo.1980)2
example,
S.W.2d 176
dissenting
part.
notion,
rejected the
revived in the
Court
“commonly
principal opinion, that the
under-
Today
provision
the Court holds that a
meaning
stood”
of words used
revenue
tax law
State income
drawn word-for-word
*6
controlling:
statutes
“Under
[section
was
from the Internal Revenue
has a
Code
differ-
143.091],
question
the
is not whether
the
in
meaning
ent
from that embodied
federal
‘commonly
is
known’ as an
minimum tax
so,
law.
In doing
majority
the
contravenes
tax,
income
but whether under federal law
ignores
legislature,
the clear intent of the
is an
tax.”
the minimum tax
income
previous
Court,
numerous
decisions of this
exposes
taxpayers
and
an
Missouri
to
uncer-
Ultimately,
majority
the
that the fed-
holds
defined,
tainly
draconian,
legislatively
“penalty”
eral definition of the term
is incon-
punitive
unintended
sanction.
sistent
section
and that
the
with
(as must)
majority
clearly requires
The
concedes
it
that the
itself
different
conclusion,
interpretation of
ma-
“penalty” meaning.
federal
the term
To reach this
the
holds,
authority,
jority
with the
without
inconsistent
result reached here.
citation
that,
the
“Any
Section 143.091 is clear:
term
in
while section 143.091
used
statute,
in
it does
sections 143.011 to 143.996 shall have the
definition of terms
comparable
govern
interpretation
the
of an entire
meaning
same
when used in a
not
majority’s position
of
statutory
context
the laws
the United States
section. The
that,
taxes,
relating
appears
individual
federal
income
unless a
to be
while
words
by
meaning
taxing
meaning
have
same
as
clearly required
different
statutes
statutes,
they
legisla-
do
when the
sections
to 143.996.”
in federal
of
143.011
they
opinion
strings
together,
these
principal
attempts
Yet the
evade
ture
words
by
develop
meaning,
even
relying
this clear mandate
on several new-
somehow
different
exactly
ly-announced principles,
they
when
are combined in
the same
none of
are
precedent.
way-
they are in
Internal
supported by statute or
Revenue
that
Revenue,
Revenue,
276,
S.W.2d
S.W.2d
285-86
1. Hiett Director
899
Director
787
of
of
1990)
(Mo.
(Mo.
1995)
(looking
law
(looking
to federal
to define
872
to federal law
banc
banc
143).
"dividend,”
Chapter
which is
defined in
negligence
determine what constitutes
under sec-
negligence
tion 143.751 because "the
is not
term
1980).
143”);
(Mo.
chapter
2. 178
banc
defined in
Dow Chemical Co. v.
S.W.2d
Code. Even assuming
possible
that
it is
by
that statute
juris-
courts of the other
interpret
statutory
Here,
without refer-
diction.6
at
legislature
the time the
ring to the definition of the individual terms
law,
enacted I.R.C. section 6672 into Missouri
up,
that make it
repeatedly
Court has
statutory
that
interpreted
was not
held that section
places
the Court
punitive sanction,
as a
legislature
squarely
interpretive
“under the
of
thumb
should not be
deemed
have intended it as
the federal courts” in interpreting Missouri’s
such.
tax code.3
majority’s interpretation
of this stat-
statutes,
In interpreting
polestar
“[o]ur
ute
consequences
will have severe
for Mis-
legislature.
the intent of the
Construction
taxpayers, consequences
souri
that were al-
always
must
seek to find and further
certainly
most
legislature
intended
intent.”4 Even if section 143.091 did not
when it chose to enact
I.R.C.
into Mis-
it,
require
statutory
rules of
construction
souri
law. The
purpose
evident
of section
would mandate that
judicial
the federal
inter-
promote
143.091 is to
uniformity and consis-
pretations of this statute be examined to
tency between the state and federal
legislative
determine
intent.
I.R.C. section
majority
codes. But here the
has taken a
6672(a)
was enacted
the United States
specific,
statute with a
well-defined
Congress in 1954. Prior
adoption by
to its
under federal law and imbued it with a mark-
Missouri in
numerous federal decisions
edly
purpose.
different
state
As noted
held that
“penalty”
described
majority,
“penalty”
section 6672
is a
designed
section was not
impose
an addi-
tax collection
imposes joint
device that
punishment,
tional
only
but
to ensure that
liability
several
full
on the
amount of tax
was
its
collected.5 It is a
responsible
well
payment
established rule
officers for
statutory
of withhold-
construc-
tion that
legislature
when the
taxes.
borrows a stat-
Once that
is satisfied
ute
jurisdiction,
source,
from another
it
from
intends to
one
other officers are freed
adopt
prior
judicial
interpretations
liability.7
majority’s
Under the
inter-
3. Hiett,
143.091,
(looking
cal officials, employers and their relative
rate
their at federal law. rule troubling pro- that the
Even more majority by appears apply pounded Missouri, Respondent, STATE of outside area within this statute well it majority admits should even ROUSAN, Appellant. William majority opinion holds be confined. The that obviously No. 79566. willfully punish persons fail to those who Missouri, Supreme Court of taxes. But withholding En Banc. tearing the loose from its federal roots, majority turns interpretative Jan. 1998. weapon into powerful Rehearing Feb. denied specified purpose, limited to that and in do- so, disrupts the structure of the code. statutory purpose If the is evident from the holds, majority it
plain language, as limit
would seem that the statute should as, withholding example,
itself to taxes 143.751.3 does. not. While It does regulations under the I.R.C. 6672 make it applies only
clear that statute with- taxes,
holding plain language of the stat- appears impose percent
ute one hundred any person willfully on who fails imposed 143.011 to “sections
143.996,” entirety tax. the income Un- “plain language” interpretation
der the an- majority today, appears
nounced it any person fails to liable, tax,
income tax is addition to the percent penalty.
a one hundred additional *8 wildly disproportionate seems
This provided penalties
other percent impose only five
penalty for failure to based on intention- laws, fifty disregard
al with an
percent failure
intent to defraud. satisfaction, (8th Cir.1977) ("Though termed
person a court has con- Ml liability imposed 'penalty,’ in section 6672 bring only the it to to the strued Government provide designed to by way civil and is it in nature amount to which was entitled same directly necessary government by which to collect recovery a means Mfill of tax. Double employ- employer those taxes which the primary purpose protection of from the 6672’s — (internal have accounted for er withheld and should government ted)); citations omit- revenues.” States, over.”). paid 565 F.2d v. United Emshwiller