CHARLESTON – Justice Joseph Albright of the West Virginia Supreme Court of Appeals can't believe his colleagues held bookkeeper Barry Schmehl personally liable for a bar's unpaid sales taxes.
"The factual circumstances in the instant case all but demand a ruling that Mr. Schmehl should not be held personally liable," Albright wrote in an April 4 dissent.
The other four Justices agreed in February that Jefferson County Circuit Judge Booker Stephens properly pinned a $172,816.63 bill on Schmehl.
The majority held that Schmehl was not a "silent" corporate officer of Filly's bar in the town of Ranson. They held that he was directly involved on a daily basis.
Albright declared the decision "unreasonable and fundamentally unfair."
The majority, he wrote, "opts to gloss over the critical facts that clearly tip the scales of justice away from imposing personal tax liability in this particular case."
Albright admitted that Schmehl was responsible for preparing tax returns and remitting payments and that Schmehl was authorized to sign checks, but Albright argued that the majority overlooked an important fact.
He wrote, "... when the corporate funds were insufficient to pay all of the outstanding corporate obligations, the exclusive and ultimate authority to determine which obligations would be paid rested not with Appellant, but with the corporation's president and majority stockholder, Paul Horn."
Schmehl's lack of decision making authority deserved more scrutiny than Stephens or the Supreme Court majority accorded, Albright wrote.
The courts also overlooked the intermittent nature of Schmel's employment, he wrote.
He wrote, "... for an entire year of the period covered by the personal tax assessment levied against him, he was not even working for the company as he was recovering from a heart attack."
He concluded that imposing personal tax liability on "an individual who held a corporate title but no stock and did not continuously occupy the position of corporate bookkeeper" was arbitrary, capricious and clearly unreasonable.
Michael Caryl of Charleston represented Schmehl. Attorney General Darrell McGraw represented the state.