A taxpayer who refuses to pay Missouri state income tax can be prosecuted for a misdemeanor pursuant to Section 143.330(4), RSMo 1969.

CRIMINAL LA\V : TAXATION (INCOME): CONSTITUTIONAL LAW: A taxpayer who refuses to pay Missouri state income tax can be prosecuted for a misdemeanor pursuant to Section 143.330(4), RSMo 1969. OPINION NO. 18 January 13, 1971 Honorable Joseph P. Teasdale Prosecuting Attorney Jackson County 415 East 12th Street Kansas City , Missouri 64106 Dear Mr . Teasdale : F r L E 0 ./? This is in reply to your request for an official opinion of this office in which you seek an opinion on the constitutionality of Section 1113 . 330(4) , RSMo 1969 , which is an interest and penalties section contained within the provisions of the State Income Tax Law. As you indicate, you have become apprehensive about the vali- dity of Section 143.330(4) , supra, which provides for the fine or imprisonment of a person" ... who willfully fails to pay such tax [state income tax], ... ", in light of Article I, Section 11, Constitution of Missouri, 19115, which provides: "That no person shall be imprisoned for debt, except for nonpayment of fines and penalties imposed by law." Apparently, you are concerned that any criminal prosecutions brought by your office for willfully failing to pay one's state income tax, can be met successfully by the defense that to so pro- secute would be i mprisonment for debt in violation of the Consti- tution of Missouri, 1945, Article I, Section 11. It would appear, that you have developed your concern from a reading of two recent cases, Partney v. Partney (Ct.App. 1969) 442 S.W. 2d 117; and Barhorst v. City of St. Louis (Mo.Sup. en bane 1967) 423 S.W.2d 843. Partney v. Partney, supra, was a contempt proceeding brought by a divorced wife to enforce an alimony and child support decree. A motion to hold the husband in contempt was overruled by the Cir- cuit Court, said order being affirmed by t he Court of Appeals. The authority for the court's holding was Coughlin v. Ehlert (Mo.Sup. 1866 ) 39 Mo . 285, in which the Supreme Court of Missouri had held Honorable Joseph P. Teasdale that, "An order for the payment of alimony is simply an order for the payment of money .. .. " , and thus imprisonment for this civil debt would be in contravention of the Constitution 's imprisonment for debt provision. [For discussion see 26 Missouri Bar Journal 560 , Woods] . In Barhorst v. City of St. Louis, supra, certain taxpayers urged the unconstitutionality of the charter amendment and ordi- nances imposing an earnings tax in the City of St. Louis, urging as one basis of the laws unconstitutionality, the invalidity of the laws penalty provisions because it accomplished imprisonment for debt, in violation of Article I, Section 11, 1945 Constitution of Missouri . The court answered that argument thusly : "The ordinance makes it a violation of the Muni- cipal Code, punishable upon conviction by fine or imprisonment, for a taxpayer to fail to make a return, or to permit the collector to examine his books and records, knowingly to make a false return or to attempt to avoid full disclosure of earnings or profits. It also requires the tax- payer making the return, at the time of filing , to pay the collector the amount of tax shown due .. . but attaches no penalty for failure to pay on time except 6% interest and a 1% per month penalty. Imprisonment for nonpayment of a fine for violation of the ordinance by failing to file a return would not constitute i mprisonment for debt, Thunder Oil Company v. City of Sunset Hills, (Mo.Sup.banc) 349 S.W. 2d 82, 89. The ordinance does not attempt to authorize impri- sonment of a taxpayer for failure to pay the tax, nor does it make payment of the tax a con- dition precedent to filing, although it does require payment at the time the return is filed . . . . " [loc . cit . 849-850 ; emphasis added] Thus, it would appear , that the court did not have squarely before it in Barhorst, the question of whether, as is present in the statute under instant consideration, a person may be imprisoned for willful failure to pay a tax. Section 143. 330(4) , RSMo 1969, authorizes a criminal prosecu- tion for a person who willfully fails to pay state income tax: "4. Any individual or any officer of a cor- poration, joint stock company or joint stock - 2- Honorable Joseph P. Teasdale association required under this chapter to pay a tax, make a return, keep any records, or sup- ply any information for the purpose of the com- putation, assessment or collection of any tax imposed by this chapter who willfully fails to pay such tax, ... in addition to all other penalties provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, be fined not less than five and not more than one thousand dollars, or imprisoned for not more than one year or both, at the dis- cretion of the court, together with the costs of prosecution." [emphasis added] As can be seen Ly reference to Vernon's Annotated Missouri Statutesl the Supreme Court of Missouri has dealt with Section 143 . 330(~) in but two cases, both dealing with venue provisions regarding willful failure to file, State v. Civella (Mo.Sup . 1963) 368 S.W.2d 444; and State v. Poelker (Mo.Sup. en bane 1964) 378 S. W.2d 491 . Thus, our conclusions are drawn from a research of the general law dealing with taxation and i mprisonment for debt . Historically, constitutional provisions denying imprisonment for debt were enacted to avoid imprisoning those individuals who had debts arising out of simple contracts. State ex rel. Lanz v . Dowling (Fla.Sup. 1926) 110 So. 522; Lipman v. Goebel (Ill . Sup. 1934) 192 N. E. 203 . In almost uniform application, taxes are held not to be debts, as that term of art is defined for the purposes of constitutional provisions forbidding imprisonment for debt. The theory is ex- pressed that a tax is not a debt due the state by certain and ex- press agreements between the parties, but that tax is money due under a much more compelling compact than any mere agreement be- tween the parties. In discussing this concept, the Supreme Court of Ohio , in Voelkel v. City of Cincinnati ( O.Sup . 1925) 147 N.E. 754, after reviewing cases and text writers, stated: "From an examination of such authorities as have been available to us in the consideration of this case, ... we are forced to the con- clusion tha t section 15 , art . I, of the Con- stitution of Ohio, ' No ~e rson shall be impri- soned for debt in any civil action, on mesne - 3- Honorabl e Jo:.Jrp!l P. Tea::;<.lale or fina1 pror.t:~_; ~', unJ e!:; s in case s of fraud , ' is not an inu U .:..tion ac·~ inst m:.d··i n~~ tl1e non- paywent of a ta>: a :nlsdt'r:canor and tl1e im} o3inr, of a fine or imprisonment as a penalty therefor , t axes not bn1n~ a ' debt ' j n t he 3ense of an ob- liration incurred uy contr~cl, express or im- pllctl, but. a.1 ooli;~at.ion jmposcu by an act of t ile soverci-r,n in U1e exePc:Lsc of its powers~ tlYlt lhe inhi:>itior. ar-ainst impri::>om.,ent for ' dc!)t,' 1::> r.n ll1hil>i.tion a -ainst ir",prisom::t'nt f or an oblir;ation itlcurrc·'...: by contract , express or ir.mlied . " [loc . cit. 7)G-7S7] Similarly , the courts of other jur1Gdicl1on have f ound lhal the t erm of art "c1cbl " imbodlcd in ccnr t, it.. ulional prov 1!'3 ions denyint; imprisonment ~or debt , ~ere nol so ~~cluslve as lo attaci1 to crimi- nal pros ecutions for failure to pay a lax. Aus t in v . City of Seat lle (1.·!-:lsh . Sup . 19 311) 30 P . 2d G 11 r; ; Ci. ty of Cine inna ti v . DeGoyer (f.lun.Ct. 1962) 2 1!1 J:.:S . ?.d 769; United Slal('S v . Smiln (D . C. f·:ich 19ll5 ) 62 !- . Suop . 59~; United Slates v . Palermo (E . D . Penn. 1957) 152 F. Supp . 32S ; Freeman v . United S tal e~ 217 U. S . 539 (1910) . There ':ICUld arpear to be anothe:::- baGl::> by \'l~ic h u.e penalty provision of Section 143 . 330(11 ) , suora , doea not contravene Article I , Section 11 , Consti l ution of :·'iis-sOliri, l9L5 . As can be seen, by r eference to Section 143.338(•1) , it is r.1ade a misderr.eanor for the taxpayer to ~ri.l lfully fall to pay the income tax. That the t erm of art "Hi llfully failin p: lo pay an income t a x'' has been given definitional ~ear!ns , r eferer.ce Qay be had lo lhe Internal Revenue Code of 1954 , Chapter 7'.; , Section 7?.0~ , wr1ich reads as foll ovJS : ''Any person ::-equ ired under this title to pay a!1y esti:1at.ed tax o::- tax, or r eouircd by this t ille or by r ·~<~ula tions made under aulhori t:: t hereof to r-.a::c a rctu!'n ( ot~1e:::• tha:1 a r eturn r equired u~der authority o~ section C015) , keep any r ecorus , or supply any informat ion, who ~_i_llfull_y falls t..o oav s~_c!-: esli~ated t[l,_!. -or t ax , r.a,·:t..:s ~u. cl . ~cturn, ''"cE:ps ~. u.cr .. teco!~~s , or suppl;: st..<...> informallc.1, at l!1e lin.e or t imes rcquir~d by lo.w or l~eR:ulatior.s , shall, in addi lion lo ol!-:.E:r ~ena 1 t.'!.es p""o·;idcd by Ja\·T , be :--uil t:; of a :-1i sc.o;. .canor <:::d , uDon co:1- viclion thcrr>of , !> 1lal l be fined nol more t llan :,;1o,ooo, or J~pr:i.";or:cJ not- mor" th3.n 1 y>2~r, or lJol!1, to,..,.cther •::~lh 1-:1c cost:; ot' pro;.::-(·u- U. 0 n • II r c m p: l n .i j ~; ad <i f"! ...... ~ .. ll- Honorable Joseph P. Teasdale The Supreme Court of the United States, in a willful failure to file case, in United States v. Murdock, 290 U.S. 389 (1933) , in discussing the term "willfully" stated: "The word often denotes an act which is in- tentional, or knowing, or voluntary, as dis- tinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose .... without justi- fiable excuse ... stubbornly, obstinately, perversely , . . . The word is often employed to characterize a thine done without ground for believing it is lawful . . . or conduct marked by careless disregard whether or not one has the right so to act, . . . " [ loc. cit. 39!1-395] That Missouri courts have similarly defined willfully, see State v. Foster (Mo.Sup. 1946) 197 S.W.2d 313; and State v. Brown (Ct . App . 1969) 445 S. W. 2d 647. As can be seen, the definition given the term willfully in the context of income tax law is one of a fraudulent act. Thus it would appear, thai under the two previously dis- cussed theories, the penalty provision of Section 143.330(4), does not contravene Article I, Section 11 of the Constitution of Missouri. There has been advanced, however, a theory thai a legislative body can transform a tax into a debt by legislative edict, and that imprisonment for the collection of a tax transformed into a debt would contravene a constitutional provision against imprisonment for debt. In City of Cincinnati v. DeGoyer (Mun.Ct. 1968) 241 N. E.2d 769, the Municipal Court of Hamilton County , Ohio, had be- fore it the question of whether the legislative body of the City of Cincinnati had transformed a tax into a debt by legislative enactment. Recognizing the general theory thai a tax is not a 11debt, 11 the court found thai on the facts before it the city coun- cil of the City of Cincinnati , had transformed a tax into a debt by enactment of a city earnings tax ordinance. In so holding, the court stated: 11The principle thai the legislature can make a tax a debt is referred to in 51 Ohio Juris- prudence 2d, Taxation, Section 5, wherein it states, 'and it is to be noted that statutes may specifically make taxes a debt.' This section cites the case of State, ex rel. Hostetter v. Hunt, 132 Ohio St. 568, 9 N.E.2d 67G for the proposition. - 5- Honorable Joseph P. Teasdale ". As quoted be fore , Section ll, sub-para- graph A, of the Ordinance says, 'all taxes * * * shall be collectible * * * by suit as other debts.' This, together with Article 11 of the Rules and Regulations, subsection A-1, which reads, 'All taxes * * * become * * * a debt, leads the Court to the only conclusion which seems apparent from a total reading of the Or- dinance and Rules and Regulations, and that is the legislative body intended to create a debt once the tax liability is determined .... 111 [loc. cit. 773] To see if this theory is susceptible to application in the instant case, reference must be had to Section 143.290, RSMo 1969, which states as follows : "At the expiration of thirty days after any delinquency, the director of revenue shall certify the name of any individual, associa- tion, joint stock company, syndicate, copart- nership, corporation, receiver, trustee, conservators, or other officer appointed by any state or federal court, or any other per- son or organization from whom any tax under this chapter shall be due, to the attorney general, and suit shall be instituted in any court of competent jurisdiction by the attorney general, or by the prosecuting attorney of the county at the direction of the attorney gene- ral, in the name of the state, to recover such tax and enforce the lein thereof, and service may be had on both residents and nonresidents in the same manner as provided by law in civil actions . " The argument could be made that by the foregoing section, the legislature has transformed a tax into a debt in light of the fact that a civil action is contemplated for the recovery of taxes de- clared delinquent under Section 143.280, RSMo 1969. We are, how- ever , unable to ascribe such intent to the legislature . A concurrent reading of Sections 143.290 and 143.330, indicates, we believe, that the legislature has provided two remedies to the state on the failure of an individual to pay the state income tax: an action to recover such tax by a civil action, and, a criminal action for the fraud involved for willfully failing to pay a tax. By reference to Section 144.390 , RSMo 1969, the specificity with which the legis- lature can speak in this area can be seen: -6- Honorable Joseph P. Teasdale 111. Any tax due and unpaid under the provi - sions of sections 144 . 010 to 144.510 shall constitute a debt due the state and in any case of failure to pay the tax , or any portion thereof, or any penalty or interest provided for in sec- tions 144.010 to 144.510, when due, the director of revenue in the name of the state may recover the amount of such tax, penalty and interest by an action at law or other appropriate judi- cial proceedings . The collection of such tax , penalty and interest shall not be a bar to any prosecution under sections 144.010 to 144.510. 11 [emphasis added] Thus, we conclude that the l egislature has not, by the enact- ment of Section 143.280, transformed the state income tax into a debt within the comprehension of Article I, Section 11, Const itu- tion of Missouri, 1945. The Supreme Court of Missouri has consistently held to the theory that there must be a clear conflict between a legislative enactment and a constitutional provision before it is warranted in declaring a statute unconstitutional . In re Burris (Mo . Sup. 1877) 66 Mo. 442; Hickey v . Board of Education of City of St. Louis (I~o.Sup. 1953 ) 256 S.W.2d 775. Additionally, the Supreme Court of Missouri has held that an attack upon the constitutionality of a statute will not be sustained if there is any reasonable theory upon which its constitutionality may be upheld, and if it is susceptible of two constructions, one making it valid and the other invalid, construction sustaining validity will be adopted . State on inf. Dalton v. Metropolitan St. Louis Sewer District (Mo. Sup. en bane 1955) 275 S.W.2d 225; and Brown v . Morris (Mo.Sup . en bane 1956) ~90 S .W. 2d 160. Applying the foregoing principles, we find that Section 143.330(4), is susceptible of interpretation upholding validity, and therefore, it is the conclusion of this office, that Section 143 . 330, does not contravene Article I, Section 11 , Constitution of Missouri, 1945. CONCLUSION It is therefore the conclusion of this office that a t axpayer who refuses to pay Missouri state income tax can be prosecuted for a misdemeanor pursuant to Section 143.330(4), RSMo 1969. - 7- Honorable Joseph P. Teasdale The foregoing opinion, which I hereby approve, was prepared by my Assistant, Kenneth Romines. JOHN C. DANFORTH Attorney General -8-