OAH 16-2700-21319-2
STATE OF
OFFICE OF ADMINISTRATIVE
HEARINGS
FOR THE DEPARTMENT OF
REVENUE
|
In the Matter of the Revocation of the Lottery Retailer Contract of |
RECOMMENDATION
GRANTING SUMMARY
DISPOSITION |
This matter is before Administrative Law Judge Manuel J.
Cervantes (ALJ) on the Department of Revenue’s (Department) Motion for Summary
Disposition. On May 20, 2010, the
Department served a Notice and Order for Hearing (Notice) on Moreno
Diversified, Inc. (Respondent or Moreno Diversified) by
Wayne
L. Sather, Department of Revenue Attorney, appeared on behalf of the Department. Mr. Moreno appeared on behalf of Moreno
Diversified.
At
the August 26, 2010 prehearing conference, the parties agreed that there are no
material facts in dispute and that the Department could proceed by Motion for
Summary Disposition. On September 2,
2010, the Department filed its Motion. No
response to the motion was received on behalf of Moreno Diversified. The record closed on September 17, 2010, when
the period for filing a response expired.[1]
STATEMENT OF ISSUE
Does Moreno Diversified owe the State of
Based upon all of the files, records and proceedings
herein, and for the reasons set forth in the accompanying Memorandum, the ALJ
makes the following:
RECOMMENDATION
1. That the Department’s
Motion for Summary Disposition be GRANTED, and
2. That the
Commissioner of Revenue (Commissioner) REVOKE Moreno Diversified’s Minnesota
Lottery Retailer License.
Dated: October 12, 2010
s/Manuel
J. Cervantes
|
MANUEL
J. CERVANTES Administrative
Law Judge |
NOTICE
This report is a recommendation, not a final
decision. The Commissioner will make the
final decision after a review of the record and this report. The Commissioner may adopt, reject, or modify
this Report and Recommendations.
Under
Minn. Stat. § 14.61, the Commissioner may not make a final decision until after
the parties have had access to this report for at least 10 days. During that time, the Commissioner must give
any party adversely affected by this report an opportunity to file objections
to the report and to present argument supporting its position. Parties should contact Ward Einess, Commissioner
of Revenue,
The record of this proceeding closes upon the filing of
exceptions to the report and the presentation of argument to the Commissioner,
or upon the expiration for doing so. The
Commissioner must notify the parties of the date on which the record
closes. If the Commissioner fails to
issue a final decision within 90 days of the close of the record, this report
will constitute the final agency decision.
Under Minn. Stat. § 14.62, subd. 1, the Commissioner is
required to serve his final decision upon each party and the ALJ by first class
mail or as otherwise provided by law.
MEMORANDUM
I. Jurisdiction
The ALJ and the Department have jurisdiction pursuant
to Minn. Stat. §§ 14.50, 207C.72; 349.155, subd. 3; and 349.06, subd. 2.[2] The
Respondent was given notice of the hearing in this matter and Department has
complied with all relevant procedural requirements.
ll. Contention
of the Parties
This is
an appeal by Respondent from the Department’s Notice, filed May 20, 2010,[3] indicating that Respondent has not paid all taxes
due to the State of
The current outstanding balance is $25,185.[4] At the August
25, 2010 prehearing conference, Respondent acknowledged that this balance was
due. The Department filed its motion for
summary disposition on September 2, 2010.
Respondent’s reply was due ten working days after receipt or on
September 17, 2010. The Respondent has
not filed any reply to the Department’s motion.
lII. Procedural
Standard
Minn.
R. Civ. P. 56 provides that summary judgment shall be granted if “there is no
genuine issue as to any material fact and that either party is entitled to a
judgment as a matter of law.”[5] Summary
disposition is the administrative equivalent of summary judgment in district
court practice. Summary disposition is
appropriate where there is no genuine issue as to any material fact and one
party is entitled to judgment as a matter of law when the law is applied to
those undisputed facts.[6] The Office of
Administrative Hearings has generally followed summary judgment standards
developed in judicial courts when considering motions for summary disposition
in contested case matters.[7] A genuine
issue is considered one that is not frivolous or a sham, and a material fact is
one whose resolution will affect the result or outcome of the case.[8]
A
moving party has the initial responsibility of showing no material fact is in
dispute. To successfully resist a motion for summary judgment, the nonmoving
party must show that there are specific facts in dispute that have a bearing on
the outcome of the case.[9] When
considering a motion for summary judgment, the Court must view the facts in the
light most favorable to the non-moving party.[10] All doubts
and factual inferences must be resolved against the moving party.[11] Although all
doubts and factual differences must be resolved in favor of the non-moving
party, the party opposing the motion must establish by substantial evidence
that there exists a genuine issue of material fact.[12] If reasonable minds could differ as to the import of
the evidence, judgment as a matter of law should not be granted.[13] The ALJ is to make a recommendation about the
appropriate interpretation of the law and about how that law applies to the
undisputed facts.
V.
Undisputed Facts
The Respondent in this matter holds a Minnesota
Retailer Contract (license), issued by the Minnesota State Lottery. The Respondent is delinquent in excess of
$500 in Minnesota Sales and Use Tax, and Withholding tax. On March 8, 2010, the Department notified
Respondent of its intention to revoke his Minnesota Lottery license.[14] On March 30,
2010, Nancy Moreno, Treasurer, timely requested a contested hearing on behalf
of Respondent.[15]
VI.
Analysis
The
facts in this case are not in dispute; as of August 26, 2010, Respondent owes
the Department $25,855 in Minnesota Sales and Use tax, Minnesota Withholding
tax, penalties, interest, and other charges.
Minn.
Stat. § 207A.72, subd. 2, in relevant part, states,
Tax clearance required.
The state
or a political subdivision of the state … must revoke, a license for the
conduct of a profession, occupation, trade, or business, if the commissioner
notifies the licensing authority that the applicant owes the state delinquent
taxes payable to the commissioner, penalties, or interest. The commissioner may
not notify the licensing authority unless the applicant taxpayer owes $500 or
more in delinquent taxes, penalties, or interest, or has not filed returns.
Minn. Stat. §3 49A.06, subd.
1, in relevant part, states,
Contracts.
The
director shall sell tickets for the lottery through lottery retailers with whom
the director contracts….
Subd. 2. Qualifications.
(a) The director may not contract with a retailer who:
* * *
(3)
owes $500 or more in delinquent taxes as defined in section 270C.72.
Minn. Stat. § 349.155, subd. 3, in relevant part, states,
Mandatory disqualifications.
(a) In the
case of licenses…, the board … shall revoke a license under this chapter, if
the … licensee:
* * *
(4)
owes $500 or more in delinquent taxes as defined in section 270C.72.
The only issue in this matter is whether Moreno Diversified
owes
M. J. C.
[1] Minn. R. 1400.6600 (a response to a
motion may be filed within ten working days after receipt).
[2] Statutes are cited to the 2008
Edition.
[3] Notice and Order for Hearing.
[4]
Affidavit of Matt Hyman, DOR,
Ex. 6; attached to the Department’s Notice of Motion and Motion.
[5]
[6] Sauter
v. Sauter, 70 N.W.2d 351, 353 (
[7] See
[8] Illinois
Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630, 634 (
[9] Thiele
v. Stitch, 425 N.W.2d 580, 583 (
[10] Ostendorf
v. Kenyon, 347 N.W.2d 834 (
[11] See,
e.g., Thompson v.
[12] Osborne
v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (
[13] Anderson
v. Liberty Lobby, Inc., 477
[14] DOR Ex. 1.
[15] DOR Ex. 2.