The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-00-29
TBM Wares ee
PATRICIA A. DANISINKA-WASHBURN,
Petitioner
Vv. ORDER ON MOTION
FOR SUMMARY JUDGMENT
STATE TAX ASSESSOR,
Respondent
This matter is before the court on respondent's motion for summary judgment
as to petitioner's 80C appeal. In her petition, the petitioner seeks relief from the court
by modifying, reversing, and/or remanding the determination by the respondent to
prevent the renewal or extension of petitioner's license to practice law in the State of
Maine as issued by the Board of Overseers of the Bar. “Generally, a motion for
summary judgment is inappropriate in an appeal on questions of law only from
administrative agencies.” Martin v. Unemployment Ins. Comm'n, 1998 ME 271, T 8, 723
A.2d 412, 415 (citations omitted). Therefore, a motion for summary judgment may not
be entertained by a court solely in its capacity as an appellate tribunal, where the court
has no independent factfinding authority. Id. However, in narrow circumstances a
court, otherwise sitting as an appellate tribunal, may find facts. Fairchild Semiconductor
v. State Tax Assessor, 1999 ME 170, ¥ 7, 740 A.2d 584, 586 (Superior Court serves as
forum of origin for a determination of both facts and law when reviewing decisions of
the State Tax Assessor). This authority to find facts and law on a de novo standard of
review is granted by 36 M.R.S.A.§ 151. Therefore, the court does not sit in its appellate
capacity when reviewing the State Tax Assessor’s decision. Enerquin Air, Inc. v. State
Tax Assessor, 670 A.2d 926, 928 (Me. 1996). As such, this court may entertain the
respondent’s motion for summary judgment.
A summary judgment is proper when the citations to the record found in the
parties’ Rule 7(d) statements demonstrate that no genuine issue of material fact has
been generated and that a party is entitled to a judgment as a matter of law. See Corey v.
Norman, Hanson & Detroy, 1999 ME 196, {| 7, 742 A.2d 933, 937.1
The petitioner is an attorney practicing in Skowhegan. She has incurred
withholding liabilities to the State for failure to pay sums that she withheld from her
employees’ wages from January 1, 1987 to December 31, 1997, except the third quarter
of ‘94 and the second quarter of ‘97. The State Tax Assessor sent a February 2, 1998
letter demanding that she pay her overdue withholding tax debt within ten days.
Having failed to respond to the letter, the Assessor sent a “specific request letter” on
December 11, 1998, by certified mail, again demanding that Washburn pay her overdue
tax debt and file her overdue income tax returns (she had not filed returns for tax years
1994-1997) within thirty days. Petitioner did not respond to this letter. The Assessor
sent a “second specific request” letter by certified mail reiterating the demands in the
first letter. Still no response was heard from Washburn. On March 11, 1999, the
Assessor sent a final warning by certified mail that largely repeated the warnings of the
previous letters with the additional caution that failure to pay her tax debt within thirty
days may result in the loss of her license to practice law. Unfortunately, the petitioner
continued on a course of inaction. As a result, the Assessor sent a “notice of
1 The petitioner has failed to comply with M.R. Civ. P. 56(h) in almost every respect. She has
not admitted, denied, or qualified the Assessor's statement of material facts by reference to each
numbered paragraph. The consequence of failing to properly controvert the movant's statement of
material of fact is to deem those facts admitted. Id.
determination” which informed the petitioner of the Assessor’s determination to
prevent renewal, reissuance, or extension of her license to practice law. Washburn then .
responded by letter of July 1, 1999 requesting that the Assessor reconsider his
determination. The Assessor denied the request for reconsideration and affirmed his
determination.? The petitioner timely filed this 80C appeal from the Assessor’s
determination to prevent renewal, reissuance, or extension of her law license.
Petitioner opposes the respondent's motion by asserting that there are genuine
issues as to several material facts, the Assessor is not entitled to a judgment as a matter
of law, and that the petitioner is entitled to have this court determine the matter de
novo. Inher argument in support of that position, she asserts that she is suffering from
the effects and complications of diabetes and has had to severely limit her law practice.
She asserts that her income has decreased substantially since 1994 and does not exceed
$25,000. She denies that she has failed to pay the tax or that failure to file returns was
intentional, wrongful, or without sufficient cause. Petitioner argues that she received
no response from the respondent when she made a request for reconsideration or her
offer of making a payment arrangement with appropriate deadlines for filing of
returns. Petitioner argues that she has attempted for many years to resolve her
problems with the State Tax Assessor relative to outstanding tax obligations and failure
to file but that the State of Maine and the Tax Assessor's office has refused to negotiate
a reasonable settlement and have acted in bad faith.
2 It appears that a hearing for reconsideration may have been scheduled but petitioner failed
to appear.
Finally, petitioner argues that she remains willing to enter an agreement with the
respondent for the payment of withholding taxes and the filing of a return but that.
respondent does not appear willing to accept an arrangement.?
By date of October 9, 1994, the petitioner sent a letter to a member of the Tax
Compliance Unit of the Bureau of Taxation requesting a reconsideration and providing
details of her financial situation. She indicated a request to resume a payment
arrangement and included a check for $50. She promised to forward $25 per week
indefinitely asking that the payments be made on her 1994 income tax liability. Plaintiff
alleges that she made 116 payments from October of 1994 until November 1997 totaling
the amount of $3,545. She alleges copies of those checks were attached to her affidavit
but are not in the court file. The respondent denies the existence of any agreement with
respect to petitioner's payment and asserts that it is the long standing policy of the State
Revenue Service to first apply any such payments made to a taxpayer's oldest, nontrust
fund tax debt. Respondent continues to assert that petitioner has never presented a
substantive payment plan.
Title 36 M.R.S.A. § 175(2) provides:
If the State Tax Assessor determines that any person who holds a state-
issued license or certificate of authority to conduct a profession, trade or
business has neglected or refused to file any returns at the time required
under this Title or to pay a tax liability due under this Title that has been
demanded . . ., and the person continues to fail to file or pay after at least
two specific written notices, each giving 30 days to respond, are sent by
certified mail or served by a civil officer, then the Assessor shall notify the
person in writing that refusal to file the required tax return or to pay the
3 At oral argument on the motion for summary judgment, counsel for the respondent stated to the
court that respondent was still willing to enter into an appropriate agreement as provided in 36
M.R.S.A. § 175(6). In response to the court's question to the petitioner asking for explanation of her
failure to file returns notwithstanding the pendency of this action for almost two years and the
minimal income allegedly received by her during the periods in question, the petitioner responded that
the returns were still in the process of being prepared by her accountant.
4
overdue tax liability may result in loss of license or certificate of authority.
If the person continues for a period in excess of 30 days from notice of
possible denial of renewal or reissuance of a license or certificate of
authority to fail to file or show reason why the person is not required to
file or if the person continues not to pay, the State Tax Assessor shall
notify the person in writing of the determination to prevent renewal,
reissuance or extension of the license or certificate authority by the issuing
agency.
The State Tax Assessor argues that it is entitled to summary judgment based on
the facts as recited and as those facts are applied to 36 M.R.S.A. § 175(2) (Supp. 2000).
Washburn essentially argues that health problems associated with her condition
as a diabetic have impaired her ability to practice law on a full-time basis and
consequently to enable her to pay off her tax liability. This fact, while unfortunate, is
not material to the court’s analysis. She also argues that the State has acted in bad faith
but provides no support for this allegation. She alleges that she has made 116
payments to the Maine Revenue Service from October 1994 to November 1997, which
payments have been acknowledged by the respondent but which were credited to her
oldest nontrust fund liability. Contrary to that policy, petitioner argues that she
understood that these payments would keep her in good stead with the Maine Revenue
Service for the then current year. The payments were applied to the petitioner's tax
obligations for 1984-1986 but not were applied to her withholding tax obligations from
1987-1997.
Washburn relies on her letter to Elizabeth Dodge, an employee of the Maine
Revenue Service, requesting a reconsideration of the Assessor’s determination. Even if
the court accepts that the letter proposes an installment payment plan between
Washburn and the respondent, the evidence does not indicate that the Maine Revenue
Service actually agreed to the proposal. Unfortunate as it is, Washburn’s predicament
was brought on largely by her misapprehension that her payments would hold the
Maine Revenue Service's efforts to prevent renewal of her license in abeyance.
This is a review of final agency action brought in this court pursuant to
5 M.R.S.A. § 11001 et seq., the Maine Administrative Procedures Act and M.R. Civ.
P. 80C(a). The manner and scope of review as provided by MR. Civ. P. 80C(c) shall be
in accordance with 5 M.R.S.A. § 11007(2-4). Under that authority, the court may affirm
the decision of the agency, remand the case for further proceedings, or reverse or
modify the decision. In order to reverse or so modify, the court must find that the
agency decision was in violation of the law or Constitution, in excess of the authority of
the agency, made upon unlawful procedure, affected by bias or error of law,
unsupported by substantial evidence, or arbitrary, capricious, or characterized by abuse
of discretion. This court is satisfied that there is no genuine dispute of material fact and
that the State Tax Assessor has not violated the Constitution, or statute, has not
exceeded its authority, has not proceeded by unlawful procedure or affected by bias or
error of law, is supported by substantial evidence on the whole record, and that the
decision is not arbitrary, capricious, or an abuse of discretion.
Neither the State Tax Assessor nor the court should view the refusal to renew,
reissue or extend a license or certificate lightly. This is specially true where the license is
that of an officer of the court who has distinguished herself with many years of faithful
service to the law and of particular assistance to those with limited or no means to
otherwise avail themselves of relief in a court proceeding. However, it is that very
knowledge of the law that makes it particularly grievous when one fails to comply with
the Tax Code of the State of Maine. Certainly, the petitioner is aware of the means of
entering into a binding agreement with the Maine Revenue Service and filing
appropriate tax returns even when the income is not sufficient to require a tax
payment. Further, appropriate and routine communications with the taxing authority .
should provide sufficient accounting so that the taxpayer is well aware of the
application of any payments made.
The court would sincerely hope that the petitioner would take full advantage of
the respondent's offer to enter an agreement in order to preserve her license even at
this late date. Certainly, such an agreement should contain a requirement that all tax
returns be filed by a reasonably accessible date, that the taxpayer present appropriate
financial statements to the Revenue Service for consideration of ability to pay, that a
payment plan is consistent with a needs analysis of the taxpayer's financial condition
and compliance for a reasonable period to assure the viability of the plan and good faith
of the taxpayer. Obviously, the details of such an agreement must be left to the parties
involved. For the part of the court, it is left no choice but to examine the case before it
under the rules and to follow the law.
The entry will be:
There being no genuine issue of material fact, respondent's motion
for summary judgment is GRANTED; judgment awarded to the
respondent; decision of the State Tax Assessor is AFFIRMED; the matter is
REMANDED to the State Tax Assessor for further proceedings.
Dated: August_/é_, 2001
Donald H. Marden
Justice, Superior Court
+
Date Filed 5/15/00 Kennebec Docket No. APO0-29
County
Action __80€
Patricia Danisinka Washburn ys, State of Maine, Me Revenue Service
Plaintiff's Attorney Defendant’s Attorney
Patricia Danisinka Washburn -Stanley Piecuch AAG
PO Box 596
Skowhegan Me
State House Sta. 6
04976 Augusta, Maine 04333
Date of
Entry
5/15/00 Complaint for review of governmental action pursuant to MRCP Rule 80B
filed. s/Washburn Pro Se
5/25/00 Entry of Appearance by Stanley Piecuch, AAG. for Dft. State, filed.
6/5/00 Assessor's Motion for Procedural Order with Memorandum of Law, filed.
s/Piecuch,AAG
Request for Hearing, filed. s/Piecuch, AAG
Proposed Procedural Order, filed.
6/6/00 Original return service on Maine Revenue Services on 5/19/00 filed.
6/12/00 Notification of Discovery Service, filed. s/Piecuch, AAG
Assessor's First Request for Admissions of Petitioner served on Patricia A.
Danisinka-Washburn, Esq. on 6/7/00
7/5/00 PROCEDURAL ORDER, Marden, J. (dated 6/29/00)
(Discovery deadline is December 1, 2000. Any motion for summary judgment
shall be filed by February 1, 2001.)
Copies mailed to attys of record.
8/2/00 Notification of Discovery Service, filed. s/Danisinka- Washburn, Pro Se
Plaintiff's Answers to Defendant's Request for Admissions served on
Stanley W. Piecuch, AAG on 7/24/00
9/25/00 Notification of Discovery Service filed. s/Piecuch, AAG.
Assessor's Interrogatories and Request for Production of Documents to
Petitioner served on Patricia A. Danisinka-Washburn, Esq., on 9/25/00.
12/15/00 Notification of Discovery Service, filed. s/Danisinka-Washburn, Esq.
Plaintiff's Answers to Assessor's Interrogatories and Request for Product
of Documents served on Stanley W. Piecuch, AAG on 12/11/00