Liability for Unpaid Communication Systems Taxes

# (1)

(1) For the purpose of this rule, "communication systems," "communication systems taxes," "provider," and "seller" have the same meaning as used in OAR 150-403-0010.

# (2)

(2) Provider and seller include, but are not limited to, an officer, member or employee of a corporation, partnership or other business entity that provides or sells telecommunications services or products, if, among other duties, that individual has:

(a) Authority to see that the communication systems 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 communication systems tax returns;

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

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

# (3)

(3) It is the duty of a communication systems provider or seller to hold in trust any amount of communication systems taxes collected from providing telecommunications or voice over internet protocol (VoIP) service with access to the communication systems or selling prepaid wireless services or products to consumers. The provider or seller assumes custodial liability for collected tax amounts to be paid to the department. Any communication systems provider or seller who fails to pay the communication systems taxes when due is subject to penalties as provided by law.

# (4)

(4) If an communication systems provider or seller fails to file returns or to pay any collected taxes 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.

# (5)

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

# (6)

(6) The following factors do not preclude a finding that an individual is liable for the payment of communication systems taxes:

(a) Lack of willfulness in failing to pay over the required communication systems taxes;

(b) The individual's receipt of remuneration;

(c) Maintenance of full-time employment elsewhere;

(d) Another individual is also liable for the communication systems 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 set working conditions and schedules; or

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