Liability for Unpaid Heavy Equipment Rental Taxes

# (1)

(1) For purposes of this rule, "qualified heavy equipment provider" has the meaning given under OAR 150-307-0900 and includes, but is not limited to, an officer, member, or employee of the qualified heavy equipment provider, if, among other duties, that individual has:

(a) Authority to see that the heavy equipment rental taxes are paid when due;

(b) Authority to prefer one creditor over another;

(c) Authority to hire and dismiss employees;

(d) Authority to set employees' working conditions and schedules;

(e) Authority to sign or co-sign checks;

(f) Authority to compute and sign heavy equipment rental tax returns;

(g) Authority to make fiscal decisions for the business; or

(h) Authority to incur debt on behalf of the business.

# (2)

(2) It is the duty of a qualified heavy equipment provider to hold in trust any amount of heavy equipment rental tax collected from the rental of heavy equipment and to assume custodial liability for amounts to be paid to the department. Any qualified heavy equipment provider who fails to pay the heavy equipment rental tax when due is subject to penalties, as provided by law, as any other taxpayer who fails to file a return or pay a tax when due.

# (3)

(3) If a qualified heavy equipment provider fails to file returns or to pay any collected tax when due, any or all officers, members, and employees may be held personally responsible, as provided in this rule, for the returns and payments together with any interest and penalties, that are due.

# (4)

(4) To be held personally liable for unpaid heavy equipment rental tax, a person must be a qualified heavy equipment rental provider. In addition, the person must be in a position to pay the heavy equipment provider rental tax or direct the payment of the heavy equipment provider rental tax at the time the duty arises to collect or pay over the heavy equipment provider rental taxes. The person may be held personally liable if the individual was, or should have been aware, that the heavy equipment provider rental taxes were not paid to the department. A qualified heavy equipment rental provider cannot avoid personal liability by delegating their responsibilities to another.

# (5)

(5) The following factors do not preclude a finding that an individual is liable for the payment of heavy equipment rental provider taxes:

(a) Lack of willfulness in failing to pay over the required heavy equipment provider rental tax;

(b) The individual's receipt of remuneration;

(c) Maintenance of full-time employment elsewhere;

(d) Another individual is also liable for the same heavy equipment rental provider taxes;

(e) A corporate bylaw or partnership agreement position description to the contrary;

(f) Absence of signatory authority on a business bank account;

(g) Absence of bookkeeping or recordkeeping duties;

(h) Absence of authority to hire, fire, and to set working conditions and schedules; or

(i) Delegation to another person any functions indicating liability.