Opinion
Docket Nos. 23112, 23113.
Decided March 31, 1977. Leave to appeal applied for.
Appeal from Wayne, Charles Kaufman, J. Submitted October 13, 1976, at Detroit. (Docket Nos. 23112, 23113.) Decided March 31, 1977. Leave to appeal applied for.
Complaint by the City of Detroit against Muzzin Vincenti, Inc., Arthur Muzzin, Rose Barczowski and Irene Astolfi for failing to file a corporation income tax withholding return and to pay the monies withheld. The Traffic and Ordinance Division of the Recorder's Court for the City of Detroit found the defendants guilty. Defendant Barczowski appealed to the Wayne County Circuit Court, which affirmed. Leave to appeal to the Court of Appeals was denied. Defendant Barczowski applied to the Supreme Court for leave to appeal. The Supreme Court granted leave to appeal, 394 Mich. 793 (1975), and remanded to the Court of Appeals for consideration as on leave granted. Reversed.
Kermit G. Bailer, Corporation Counsel, and Victor G. Marrocco, Carl Rashid, Jr., and Virgil C. Smith, Jr., Assistants Corporation Counsel, for plaintiff.
Merrill, Tatham Rosati, for defendants.
Before: D.E. HOLBROOK, Jr., P.J., and N.J. KAUFMAN and D.C. RILEY, JJ.
We are asked to decide whether the Uniform City Income Tax Ordinance, MCLA 141.601 et seq.; MSA 5.3194(11) et seq., which was adopted by plaintiff imposes criminal liability on corporate officers for the failure of the corporation to file a withholding return and pay the monies withheld.
Detroit Ordinances, No 900-F; Sec 21-8-18 of the City Code. Since the plaintiff adopted the Uniform City Income Tax Ordinance verbatim, see MCLA 141.502; MSA 5.3194(2), we shall refer for convenience solely to the statute.
During the latter part of 1971 appellant held the office of secretary in a now defunct corporation which had transacted business in Detroit. At a bench trial in Recorders Court, Traffic and Ordinance Division, appellant was found guilty on two counts: 1) wilful failure, neglect or refusal to file the return for the third quarter of 1971, MCLA 141.699(a); MSA 5.3194(109)(a), and 2) wilful failure to pay the tax withheld for the latter half of 1971, MCLA 141.699(c); MSA 5.3194(109)(c). In addition, the corporation pled no contest to charges of failing to file withholding tax returns for the third quarter of 1971 and failing to pay to plaintiff taxes withheld for the third and fourth quarters of that year. Her appeal was affirmed by the Wayne County Circuit Court; and leave to appeal was denied by the Court of Appeals. However, the Supreme Court, 394 Mich. 793 (1975), granted leave, remanding the case to this Court as on leave granted. GCR 1963, 865.1(7).
As would be expected, resolution of this case turns on the language of the statute and the guidance provided by certain well settled rules of statutory construction.
The Uniform City Income Tax Ordinance provides in pertinent part:
"(2) `Person' means a natural person, partnership, fiduciary, association, corporation or other entity. When used in any provision imposing a criminal penalty, `person' as applied to an association means the parties or members thereof, and as applied to a corporation, the officers thereof." MCLA 141.608(2); MSA 5.3194(18)(2). (Emphasis added.)
"Sec. 99. Each of the following violations of this ordinance is a misdemeanor and is punishable, in addition to the interest and penalties provided under the ordinance, by a fine not exceeding $500.00, or imprisonment for a period not exceeding 90 days or both:
"(a) Wilful failure, neglect or refusal to file a return required by the ordinance.
"(b) Wilful failure, neglect or refusal to pay the tax, penalty or interest imposed by the ordinance.
"(c) Wilful failure of an employer to withhold or pay to the city a tax as required by the ordinance.
"(d) Refusal to permit the city or an agent or employee appointed by the administrator in writing to examine the books, records and papers of a person subject to the ordinance.
"(e) Knowingly filing an incomplete, false or fraudulent return.
"(f) Attempting to do or doing anything whatever in order to avoid full disclosure of the amount of income or to avoid the payment of any or all of the tax." MCLA 141.699; MSA 5.3194(109). (Emphasis added.)
Inexplicably, counsel for both parties have premised their appellate arguments on the assumption that the term "person" nowhere appears in any section of the statute imposing criminal penalties. As the foregoing extract indicates, however, both sides are mistaken.
It should be noted that another section of the statute (one inapplicable to the present case) uses the word, "person", in a penal provision:
"Sec. 74. (1) Information gained by the administrator, city treasurer or any other city official, agent or employee as a result of a return, investigation, hearing or verification required or authorized by this ordinance is confidential, except for official purposes in connection with the administration of the ordinance and except in accordance with a proper judicial order.
"(2) Any person who divulges this confidential information, except for official purposes, is guilty of a misdemeanor and subject to a fine not exceeding $500.00 or imprisonment for a period not exceeding 90 days, or both, for each offense. In addition, an employee of the city who divulges this confidential information is subject to discharge for misconduct." MCLA 141.674; MSA 5.3194(84). (Emphasis added.)
However, we need not decide whether officers of a corporate accounting firm authorized as the city's "agent" under MCLA 141.674(1) may be criminally liable for improperly divulging confidential information obtained in the course of a tax audit.
This belated discovery takes the wind out of the sails of plaintiff's argument for it plainly demonstrates that the Legislature did consider the extent to which corporate officers should be subject to criminal penalties for violating the statute. By utilizing the term "person" only once in its principal criminal provision, namely, MCLA 141.699(d); MSA 5.3194(109)(d), the Legislature delineated a particular instance in which the statute inflicts criminal sanctions on the officers of a corporation. When subsection (d) of MCLA 141.699 is interpreted by reference to two other provisions of the statute, the legislative intent becomes obvious:
"Sec. 73. (1) The administrator personally, or his duly authorized agent or a duly authorized city employee, may examine the books, papers and records of any person, employer, taxpayer or his agent or representative, for the purpose of verifying the accuracy and completeness of a return filed, or, if no return was filed, to ascertain the tax, withholding, penalties or interest due under this ordinance.
"(2) The administrator or his duly authorized agent may examine any person, under oath, concerning income which was or should have been reported for taxation under this ordinance, and for this purpose may compel the production of books, papers and records and the attendance of all parties before him, whether as parties or witnesses, if he believes such persons have knowledge of such income." MCLA 141.673; MSA 5.3194(83).
"(2) Refusal by any person to submit to such examination or investigation, when requested or ordered by the administrator, is a violation of this ordinance, punishable by such penalties as are provided in the ordinance." MCLA 141.681(2); MSA 5.3194(91)(2).
Thus, these sections taken together impose penal sanctions (including imprisonment) on corporate officers who refuse or attempt to thwart a city's valid request to examine the corporation's books and records.
Applying the constructional rule expressio unius est exclusio alterius (express mention of one thing in a statute implies the exclusion of other kindred things), Stowers v Wolodzko, 386 Mich. 119, 133; 191 N.W.2d 355 (1971), Alan v Wayne County, 388 Mich. 210, 253; 200 N.W.2d 628 (1972), Valenti Homes, Inc v Sterling Heights, 61 Mich. App. 537; 233 N.W.2d 72 (1975), we hold that corporate officers cannot be held criminally responsible for corporate violations of MCLA 141.699(a), (b), (c), (e) or (f); MSA 5.3194(109)(a), (b), (c), (e) or (f). In light of the Legislature's express condemnation of certain conduct, namely, the refusal to permit examination of books and records, which subjects corporate officers to criminal penalties, we refuse to entertain the suggestion that the Legislature intended more but failed to so specify.
Where, as here, a statute supplies its own glossary, courts may not import any other interpretation, but must apply the meaning of the terms as expressly defined. In re Jones Estate, 52 Mich. App. 628, 636; 218 N.W.2d 89 (1974), Bennett v Pitts, 31 Mich. App. 530, 534; 188 N.W.2d 81 (1971), W.S Butterfield Theatres, Inc v Dept of Revenue, 353 Mich. 345; 91 N.W.2d 269 (1958). Since the statute's definition of "employer" makes no mention of corporate officers, we reject the plaintiff's attempt to include defendant by implication within that category and thereby impose upon her, ex officio, the obligations of an employer under the statute.
The statute itself is to the same effect:
"Sec. 2. For the purposes of this ordinance, the words, terms and phrases set forth in sections 3 to 9 and their derivations have the meaning given therein. * * *." MCLA 141.602; MSA 5.3194(12).
"(2) `Employer' means an individual, partnership, association, corporation, nonprofit organization, governmental body or unit or agency including the state, or any other entity whether or not taxable under this ordinance, that employs 1 or more persons on a salary, bonus, wage, commission or other basis, whether or not the employer is in a business." MCLA 141.606(2); MSA 5.3194(16)(2).
If the Legislature in enacting the statute had intended to punish corporate officers where the corporation is derelict in its statutory duties, we do not doubt their ability to have employed language suitable to that task.
Conviction reversed.