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Kim v. Comptroller of Treasury7/30/1998
Pet. No. 107, September Term, 1996 James Kim, Red Rib Ltd. t/a Act of Clubs v. Comptroller of the Treasury
[Reverses A Decision By The Circuit Court For Anne Arundel County Dismissing As Premature A Petition For Judicial Review Of An Order Of The Maryland Tax Court]
September Term, 1996
* Karwacki, J., now retired, participated in the hearing of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of the opinion.
In this case we review a decision by the Circuit Court for Anne Arundel County dismissing as premature a petition for judicial review of an order of the Maryland Tax Court. We shall reverse.
I.
The pertinent facts are relatively uncomplicated. James Kim owned and operated a tavern on Fort Smallwood Road in Anne Arundel County and held an alcoholic beverage license for the property. As a result of financial losses incurred by the tavern, Kim decided to sell the business to The Red Rib, Ltd., and the real estate to G. Glenn Schiller. Because Schiller was a non-resident of Anne Arundel County and could not qualify for the transfer of the alcoholic beverage license, Kim agreed to sign a liquor license application as Vice President of The Red Rib, Ltd., thereby qualifying it as a corporate applicant.
Apparently the business failed to remit to the State sales and use taxes which it had collected. Therefore, the Comptroller levied an assessment against Kim, as an officer of the corporation, in the amount of $16,417.06, pursuant to Maryland Code (1988, 1997 Repl. Vol.), 11-601 of the Tax-General Article. Section 11-601(d)(1)(i) provides for personal liability on the part of the "president, vice president or treasurer" of a corporation which fails to remit sales and use taxes to the Comptroller.
Kim contested the assessment in the Maryland Tax Court, which affirmed the assessment. Kim argued in the Tax Court that he should not be subject to personal liability under 11-601(d)(1)(i) because he was not really the vice president of the corporation although he did sign the liquor license application in that capacity as an accommodation to Schiller. At the conclusion of a hearing held on December 6, 1995, the judge of the Tax Court orally ruled that the assessment was proper but that the penalties should be waived. The judge also directed the Assistant Attorney General representing the Comptroller to prepare a written order to that effect.
On December 11, 1995, Kim filed in the Circuit Court for Anne Arundel County a petition for judicial review of the Tax Court's decision. The petition requested "judicial review of the oral denial of appeal . . . made by [the Tax Court] on December 6, 1995." Subsequently, on December 18, 1995, the Tax Court entered its written order "that the assessment levied by the Comptroller, including interest, be and the same is hereby AFFIRMED. Penalty is to be abated." Kim then filed in the circuit court, on January 17, 1996, a memorandum in support of his petition for judicial review. This memorandum was captioned "Petition of James Kim . . . For Judicial Review of the Decision of the Maryland Tax Court in the case of: James Kim . . . vs. Comptroller of the Treasury." Finally, on January 22, 1996, the Comptroller filed its response to Kim's petition for judicial review and a motion to dismiss the petition as premature because it was filed before entry of the Tax Court's written order. The Comptroller relied on cases dealing with premature appeals from trial courts to appellate courts.
After a hearing, the circuit court granted the Compt
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