11-2700-15270-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF REVENUE

 

 

In the Matter of the Revocation of the Electrical Contractor Class A License of Gary P. Heggem

ORDER DENYING RESPONDENT’S  MOTION FOR CONTINUANCE AND MOTION FOR SUMMARY DISPOSITION

This matter is pending before Administrative Law Judge Barbara L. Neilson pursuant to a Notice of and Order for Hearing dated January 21, 2003.  On February 11, 2003, the Respondent, Gary P. Heggem, filed a document entitled “Notice of Special Visitation and Discovery” and “Request for Court Date Extension.”  It appears that this document reflects motions by the Respondent to continue the hearing date and seek entry of summary disposition in his favor.  The Department of Revenue had not filed a response to the motion by the date of this Order.

The Department of Revenue is represented in this proceeding by Wayne L. Sather, Attorney, Minnesota Department of Revenue, Mail Station 2220, 600 North Robert Street, St. Paul, MN  55146-2220.  Gary P. Heggem (who refers to himself in his filing as “Gary Paul., Heggem”), 1161 – Wayzata Boulevard, Wayzata, Minnesota  55391-1935, is representing himself in this proceeding. 

Based upon all of the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED that the Motion for Summary Disposition and Motion for Continuance filed by Mr. Heggem be DENIED.  The hearing in this matter will proceed as scheduled on Wednesday, February 26, 2003, at 1:30 p.m. 

Dated:  February 21, 2003.                                        /s/ Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

 

 

MEMORANDUM

          In this contested case proceeding, the Department of Revenue is seeking to revoke the Electrical Contractor Class A License of the Respondent, Gary P. Heggem, based upon allegations that Mr. Heggem has not filed all individual income tax returns due to the State of Minnesota and has not paid all individual income tax due to the State of Minnesota.  The license revocation is sought under Minn. Stat. § 270.72, which specifies as follows:

 

The state or a political subdivision of the state may not issue, transfer, or renew, and must revoke, a license for the conduct of a profession, occupation, trade, or business, if the commissioner [of revenue] notifies the licensing authority that the applicant owes the state delinquent taxes, penalties, or interest.  The commissioner may not notify the licensing authority unless the applicant taxpayer owes $500 or more in delinquent taxes or has not filed returns.  If the applicant taxpayer does not owe delinquent taxes but has not filed returns, the commissioner may not notify the licensing authority unless the taxpayer has been given 90 days' written notice to file the returns or show that the returns are not required to be filed.  A licensing authority that has received a notice from the commissioner may issue, transfer, renew, or not revoke the applicant's license only if (a)  the commissioner issues a tax clearance certificate and (b)  the commissioner or the applicant forwards a copy of the clearance to the authority.  The commissioner may issue a clearance certificate only if the applicant does not owe the state any uncontested delinquent taxes, penalties, or interest and has filed all required returns.

 

The issue presented in this contested case proceeding thus is whether the Respondent in fact owes the State $500 or more in delinquent taxes, penalties, or interest, or has not filed all returns due to the Commissioner and, if so, whether it is appropriate to revoke his electrical contractor’s license. 

As noted above, it appears that the “Notice of Special Visitation and Discovery” and “Request for Court Date Extension” filed by the Respondent seeks a continuance of the hearing and the entry of summary disposition for the Respondent.  Summary disposition is the administrative equivalent of summary judgment.[1]  Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.[2]  A genuine issue is one that is not a sham or frivolous.  A material fact is a fact whose resolution will affect the result or outcome of the case.[3]  To prevail in a motion for summary disposition, the moving party must demonstrate that no genuine issues of material fact exist.[4]  If the moving party is successful, the nonmoving party then has the burden of proof to show specific facts are in dispute that can affect the outcome of the case.[5]  The nonmoving party must establish the existence of a genuine issue of material fact by substantial evidence; general averments are not enough to meet the nonmoving party's burden under Minn. R. Civ. P. 56.05.[6]  The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.[7]  The nonmoving party also has the benefit of the most favorable view of the evidence.  All doubts and inferences must be resolved against the moving party.[8]

The document filed by the Respondent does not clearly set forth the factual grounds or legal bases for the Respondent’s apparent motions that the hearing be continued and/or that he be granted summary judgment in this proceeding.  Despite the Respondent’s citation to various statutes, case law, and other authorities, the basis for the Respondent’s motion for summary judgment is unclear.  Moreover, although the document filed by the Respondent purports to be an affidavit, it does not set forth facts within the Respondent’s personal knowledge in any detailed or understandable fashion.  Much of the document filed by the Respondent simply contains verbatim excerpts from a website run by an entity called “TPI.”  According to the website, TPI engages in forensic accounting and specializes in IRS fraud against taxpayers. 

The Respondent generally contends that the allegations by the Department of Revenue are false.  Because the Respondent’s affidavit does not include a statement alleging that he has, in fact, filed and paid all individual income tax returns due to the State of Minnesota, the Administrative Law Judge has no proper basis for concluding that the Department’s allegations are false.  The Respondent also contends that there is no longer any controversy since the Department failed to respond to certain documents that the Respondent allegedly presented to Departmental representatives.  It is not possible to evaluate this claim because the documents were not included with the motion.  The Respondent further asserts that the Department is estopped from disputing the Respondent’s claims or has somehow waived its right to dispute those claims.  To establish a claim of equitable estoppel against the government, a claimant must prove that the government made a misrepresentation of a material fact knowing that the representation was false and intending that its representation be acted upon, and that the claimant did not know the facts and relied upon the government’s misrepresentations to his detriment.[9]  Estoppel is not freely applied against the government.[10]  The claimant “must show that the government engaged in affirmative misconduct, rather than simple inadvertence, mistake or imperfect conduct.”[11]  The Respondent did not provide any specific supporting evidence to show that there has been affirmative misconduct by the State Department of Revenue.  Because the Respondent focused upon the IRS in his written argument, it is not even clear what misrepresentation he contends was made by agents of the State of Minnesota.  The Respondent has not shown that he is entitled to the entry of summary judgment based upon application of the doctrine of equitable estoppel. 

The Respondent also contends, based upon information that was apparently provided by TPI, that he owes no tax liability for 1998 and that his alleged tax liabilities for 1996, 1997, and 1999 are time-barred because the deficiency assessment was not made until after the “assessment statute” had expired.  There is no statement that those are the only tax years on which this proceeding is based, no supporting affidavit by TPI, and no citation to the assessment statute that the Respondent alleges applies in this instance.  Under these circumstances, it is not possible to conclude that the Respondent has shown that there are no genuine issues of material fact and that he is entitled to the entry of judgment in this proceeding as a matter of law.

In order to obtain a continuance of a hearing, good cause must be shown under Minnesota Rules part 1400.7500.  The rule indicates that “good cause” includes such matters as death or incapacitating illness of a party, improper notice of the hearing, a change in attorney, a change in parties or pleadings, and similar circumstances showing that more time is necessary in order to prepare for the hearing.  “Good cause” under the rule does not include intentional delay or failure of the party to properly use the statutory notice period to prepare for the hearing.  It appears that the Respondent is requesting a continuance in order to “subpoena verified counteraffidavits or any other sworn material evidence” from agents of the Department of Revenue.  Under Minnesota Rules part 1400.6700, subp. 1, the Respondent is entitled to obtain copies of any relevant written or recorded statements made by the party or by witnesses within ten days of a written demand directed to the Department, along with the names and addresses of all witnesses that a party intends to call, a brief summary of each witness’ testimony, and all written exhibits.  The Respondent thus does not have to serve a subpoena to obtain this information, but may simply make the request in writing to counsel for the Department.  There is no showing that he has made such a request or that the Department has failed to provide him with materials that he has requested.

The Administrative Law Judge is not persuaded that the Respondent has shown that there is good cause for continuance of the February 26, 2003, hearing.  Accordingly, the hearing will proceed as scheduled. 

B.L.N.