264 Kan. 518
(957 P2d 473)
No. 77,212
IN THE MATTER OF THE APPLICATION OF AMERICAN RESTAURANT OPERATIONS, et al., FOR RELIEF FROM A GRIEVANCE AND PROTESTS OF TAXES PAID IN SEDGWICK COUNTY, KANSAS.
SYLLABUS BY THE COURT
1.Both K.S.A. 79-1422(c) and K.S.A. 79-1427a(b) authorize the Board of Tax Appeals to abate penalties whenever excusable neglect on the part of the person required to make and file the statement listing property for assessment and taxation purposes is shown.
2. What constitutes excusable neglect under K.S.A. 79-1422 and K.S.A. 79-1427a(b) must be determined by the trial court on a case-by-case basis. Such things as evidence of good faith and the circumstances under which the error occurred, as well as the taxpayer's good faith in attempting to correct the error, go to show excusable neglect.
3. Interpretation of a statute is a question of law, and our review is unlimited. It is the function of a court to interpret a statute to give it the effect intended by the legislature.
4. The party challenging the validity of an agency's action bears the burden of proving the invalidity of the action.
5. The Board of Tax Appeals' interpretations of tax statutes are to be given deference. The Board of Tax Appeals defines "excusable neglect," as contained in K.S.A. 79-1422 and K.S.A. 79-1427a(b), as a justifiable failure to properly file taxes or as a legitimate attempt to correct tax problems once they are discovered. This court approves that definition.
6. The award of sanctions, including attorney fees, for discovery violations is within the discretion of the trial court.
7. In a Board of Tax Appeals case, the record is examined and it is held: The 1995 amendments to K.S.A. 1994 Supp. 79-1427a, setting a 2-year statute of limitations for escaped taxes, apply retroactively to the taxpayer's pending tax assessments.
Appeal from Sedgwick district court; WILLIAM D. RUSTIN, judge. Opinion filed April 17, 1998. Affirmed.
Clarence D. Holeman, assistant county counselor, argued the cause and was on the brief for appellant Board of Sedgwick County Commissioners.
Eric F. Melgren, of Foulston & Seifkin, L.L.P., of Wichita, argued the cause, and James D. Oliver, of the same firm, was with him on the brief for appellees American Restaurant Operations, et al.
The opinion of the court was delivered by
ABBOTT, J.: This is an appeal by the Board of Sedgwick County Commissioners (County) from a Sedgwick County District Court decision concerning a Kansas Board of Tax Appeals (BOTA) order. There are three issues in the appeal. The County claims that (1) it was error to give retrospective effect to an amendment to K.S.A. 79-1427a, which was enacted while the case was pending in the district court; (2) it was error for BOTA to reduce the taxpayer's penalties from 100% to 10% on the 1986, 1987, 1988, and 1989 assessments, and from 50% to 10% on the 1990 and 1991 assessments; and (3) it was error for the trial court to impose sanctions of $1,500 in attorney fees against the County for its failure to allow discovery.
The appellees/taxpayers will be referred to as taxpayer, although the relationship is complex. Appellee American Restaurant Operations merged with appellee Brazos Valley Restaurant in 1988 and owns several separate Grandy's franchise locations in Sedgwick County. Appellee Restaurant Management Company is a management company which manages the restaurants and charges a management fee. Restaurant Management Company does not own an interest in the restaurants.
The taxpayer had little, if any, expertise in-house to maintain personal property tax records or make personal property tax filings. The taxpayer hired the independent consulting firm of Savage, Savage & Brown (SSB) to do its personal property tax filings. Each year, the taxpayer sent its entire depreciation schedule to SSB so that its personal property renditions (listings) could be prepared from it. A personal property tax rendition is a listing the taxpayer has to file every year to determine taxable personal property. The taxpayer did not maintain personal property tax records. SSB was responsible for maintaining those records for the taxpayer. For tax years 1986-1991, SSB signed and filed a rendition for each restaurant location, which was supposed to include every item of personal property located at each restaurant. The county appraiser's office valued the personal property listed on the rendition and sent SSB a tax bill based on these values. SSB forwarded this tax bill to the taxpayer, who paid it, no questions asked. Prior to April 1990, the taxpayer had no reason to believe or suspect that SSB's handling of these matters might not be correct.
The county appraiser challenged the renditions for 1985 through 1989. Sedgwick County employed a certified public accounting firm, Allen, Gibbs & Houlik (AGH), to assist the county appraiser in evaluating the taxpayer's personal property tax renditions. The county appraiser's office prepared a final figure of "escaped" assessment, and that figure was placed on the tax roll.
A considerable procedural history followed, none of which is of value in deciding this appeal until the point where the taxpayer filed an injunction action in the Sedgwick County District Court and an appeal with BOTA. Eventually, the parties agreed on the amount of escaped assessments that the taxpayer owed, and the tax rolls were corrected to reflect the correct amount. No dispute regarding the listing or valuation of the taxpayer's property remains.
However, the case continued in front of BOTA for it to decide issues regarding penalties, statute of limitations, and discovery sanctions. BOTA found that the taxpayer had established excusable neglect, which justified a substantial abatement of the mandatory statutory penalties for delinquent and escaped assessments. BOTA also found that the taxpayer's motion for costs in filing a motion to compel discovery should be granted in the amount of $1,500 and that the County's escaped assessment tax bill for 1986 was time barred under K.S.A. 79-1427a. The County disagreed with BOTA's ruling on the first two issues, and it filed a petition for judicial review in Sedgwick County District Court. The taxpayer filed a cross-petition in the same court. While the case was pending in district court, the legislature enacted amendments to 79-1427a, which shortened the statute of limitations on the number of years a county can go back and collect escaped assessments from 4 years to 2 years. In its ruling, the trial court gave retrospective effect to these amendments, so that they barred the County's collection of escaped assessments for all years prior to 1990. The trial court also found that neither BOTA's abatement of the taxpayer's penalties nor BOTA's award of discovery sanctions to the taxpayer was an abuse of discretion.
The County appealed the trial court's ruling to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
I. 1995 AMENDMENTS TO K.S.A. 1994 SUPP. 79-1427a
At the time the appraiser first challenged the taxpayer's renditions in 1990, a 4-year statute of limitations applied to "escaped" assessments (K.S.A. 1990 Supp. 79-1427a). K.S.A. 1990 Supp. 79-1427a(c) provided that the statute of limitations applied to "any tangible personal property discovered during the calendar years 1982, 1983, and 1984, and any year thereafter to have escaped appraisal and taxation during any such year or any year within four years next preceding any such year." The 4-year statute of limitations replaced a 5-year statute of limitations. This statute was considered retroactive at the time it was enacted in 1985 because it included the "1982, 1983, and 1984" clause in subsection (c). Att'y Gen. Op. No. 95-90, pp. 3, 4 (citing Minutes of Senate Committee on Assessment and Taxation, January 23, 1985, and Attachment; Supplemental Note on S.B. 31, as amended by Senate Committee on Assessment and Taxation).
BOTA heard this case while the 4-year statute of limitations was in place, and BOTA held the County could recover escaped taxes for the tax years 1987, 1988, 1989, and 1990. BOTA only barred the County's collection of escaped taxes for the tax year 1986.
Both parties appealed BOTA's decision on this and other issues to the district court. The district court heard the case on July 19, 1993. The case was reargued in front of the district court on February 21, 1996, 3 1/2 years later. In between these two argument dates, the legislature amended 79-1427a effective July 1, 1995. This statute, as amended, provided in pertinent part:
"(a) If, the county appraiser discovers, after the tax roll has been certified to the county clerk, that any tangible personal property subject to taxation has been omitted from the tax rolls, the county clerk shall place such property on the tax roll as an added tax, or if, after one year from the date prescribed by K.S.A. 79-306, and amendments thereto, for the listing of tangible personal property, the county appraiser discovers that any tangible personal property which was subject to taxation in any year or years within two years next preceding January 1 of the calendar year it was discovered has not been listed or has been underreported for whatever reason, such property shall be deemed to have escaped taxation. In the case of property which has not been listed, it shall be the duty of the county appraiser to list and appraise such property and, for an added tax, add penalties as prescribed in K.S.A. 79-1422, and amendments thereto, and which shall be designated on the appraisal roll as an added appraisal for that year. In the case of property which has escaped taxation, it shall be the duty of the county appraiser to list and appraise such property and add 50% thereto as a penalty for escaping taxation for each such year during which such property was not listed, and it shall be designated on the appraisal roll as 'escaped appraisal' for each such preceding year or years. In the case of property which has been listed but underreported, it shall be the duty of the county appraiser to list and appraise the underreported portion of such property and add 50% thereto as a penalty for escaping taxation for each such year during which such property was underreported, and it shall be designated on the appraisal roll as 'escaped appraisal' for each such preceding year or years. The county clerk, upon receipt of the valuation for such property in either of the aforementioned cases, shall place such property on the tax rolls and compute the amount of tax due based upon the mill levy for the year or years in which such tax should have been levied, and shall certify such amount to the county treasurer as an added or escaped appraisal. . . .
. . . .
"(c) The provisions of this section shall apply to any tangible personal property discovered during the calendar years 1982, 1983, 1984 and any year thereafter to have escaped appraisal and taxation during any such year or any year within two years next preceding any such year." K.S.A. 79-1427a. (Emphasis added.)
The only issue before us is whether the amendments to 79-1427a applied retroactively and barred any claims for "escaped" taxes prior to 1990 (counting back 2 years from 1992 when the escaped taxes were discovered and placed on the tax rolls) or 1988 (counting back 4 years from 1992). We express no opinion whether 1991 or 1992 should have been used as the discovery date for the escaped assessments, as that issue is not before us.
The Department of Revenue first addressed the issue of the retroactivity of K.S.A. 79-1427a. The 1995 amendments to 79-1427a became effective July 1, 1995. Approximately 2 months before this date, on April 24, 1995, legal counsel for the Department of Revenue, Property Valuation Division, sent a letter to Representative Phill Kline, the chairman of the House Assessment and Taxation Committee. This letter advised Representative Kline that the 1995 amendments to 79-1427a contained a retroactivity provision which allowed the amendment to apply to any taxes remaining unpaid as of its effective date. The letter also noted that the Revisor of Statutes Office had been consulted and concurred in this interpretation.
Later, BOTA also found that the 1995 amendments to 79-1427a should be applied retroactively. In the Matter of the Protests of Flint Oak Ranch for Taxes Paid for 1988, 1989, 1990, 1991, and 1993, in Elk County, Kansas, Docket Nos. 92-17264-PR et seq. In so ruling, BOTA focused on the phrase "any year thereafter" in subsection (c) of the amended statute. According to BOTA, this language indicates the provisions of subsection (c), including the shortened statute of limitations, apply to any year after 1982 in which a county discovers escaped property. As such, BOTA concluded in the Flint Oak case that the legislature intended for the 1995 amendments to be applied retroactively, pursuant to the retroactivity language in the amended subsection (c). Hence, BOTA held that counties are barred, under the 1995 amendments to 79-1427a, from collecting an unpaid escaped property assessment that extends back more than 2 years from the date of discovery of the assessment, even if the escaped personal property assessment was placed on the tax rolls prior to July 1, 1995, the effective date of the 1995 amendments. In this case, the district court apparently relied on the Flint Oak BOTA opinion and the Department of Revenue letter. Thus, the district court ruled that the 1995 amendments to 79-1427a should be applied retroactively. In so holding, the district court stated:
"After this matter was briefed and argued to the court, the Kansas legislature amended K.S.A. 79-1427a, changing the four year assessment period to a two year one. Moreover, the language of the legislature's amendment indicates that the shortened assessment period was to be retroactive. Therefore, under the current law, which relates back to this period, only assessments for the two years next preceding the date of assessment may be permitted; all other assessments are barred."
Thus, the district court herein held that the County's escaped assessments for 1990 were proper, while the assessments for tax years 1989, 1988, 1987, 1986, and 1985 were time barred. Since BOTA only barred the County's assessments for tax years 1985 and 1986 and permitted the County to collect escaped assessments for the tax years 1987, 1988, and 1989, the district court altered BOTA's order. The district court only allowed the County to collect the escaped assessments which occurred in 1990. The County could have also collected escaped assessments for tax years 1991 and 1992 since the escaped assessments were placed on the tax rolls in 1992. However, apparently, the County did not discover any escaped assessments for these years.
On appeal, the County asks this court to reinstate the escaped assessment and penalties for the tax years 1988 and 1989 and not bar them. After the briefs for this appeal were filed, BOTA filed a decision on September 11, 1997, in which it reversed the position it took in Flint Oak concerning the retroactivity of the 1995 amendments to 79-1427a. In the Matter of the Protest of Triad Associates, Inc. for Taxes Paid for 1989-93 in Sedgwick County, Kansas, Docket No. 94-1213-PR. Without discussing the prior case (Flint Oak) in which it held K.S.A. 79-1427a applied retroactively, BOTA held that the 1995 amendments to 79-1427a should not be applied retroactively, but prospectively only.
Determining whether K.S.A. 79-1427a applies the new 2-year statute of limitations for personal property tax assessments retroactively is a question of law. "When determining a question of law, this court is not barred by the decision of the district court," but our review is unlimited. Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986); see In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
The language in subsection (c) of 79-1427a originally made the statute apply retroactively when it was enacted in 1985. See Att'y Gen. Op. No. 95-90. The legislature is presumed to know the law. Friday v. Trinity Universal of Kansas, 262 Kan. 347, 350, 939 P.2d 869 (1997). Thus, the legislature presumably was aware of the prior retroactive application of 79-1427a based on the language in subsection (c). In the 1995 amendments, the legislature changed subsection (c) by shortening the statute of limitations from 4 years to 2 years, but it specifically reenacted the retroactivity language. Thus, this language still clearly indicates that the legislature intended the amended K.S.A. 79-1427a to operate retroactively, just as this original language in subsection (c) indicated that the original 79-1427a should also be applied retroactively. See State v. Ford, 262 Kan. 206, 208, 936 P.2d 255 (1997); L. 1985, ch. 309, § 1 (original 79-1427a); Minutes of Senate Committee on Assessment and Taxation, January 23, 1985, and Attachment 1; Supplemental Note on S.B. 31, as amended by Senate Committee on Assessment and Taxation.
The legislature did not limit this retroactivity language in subsection (c) to only the original statute and exclude its retroactive effect from the 1995 amendments. Indeed, the legislature was aware that the Department of Revenue planned to interpret the 1995 amendments retroactively, but it did nothing to prevent or disapprove of such an interpretation. BOTA originally followed the Department of Revenue's ruling, but has recently changed its position on this issue. Due to the lack of explanation as to why it changed its position on this issue, BOTA's ruling that the amendments should only be applied prospectively is not as persuasive as it might otherwise be. A vital part of subsection (c) is the statute of limitations, which the legislature amended in 1995. It could have struck out the retroactivity language at this time. It did not do so. As such, the legislature intended for the 1995 amendments, including the shortened statute of limitations, to be applied retroactively, pursuant to the reenacted retroactivity language in subsection (c). The Department of Revenue informed the legislature that it planned to apply the amendments retroactively, and the legislature acquiesced in this interpretation of the statute.
By applying the 1995 amendments to 79-1427a, including the new 2-year statute of limitations, retroactively to the taxpayer's pending tax assessments, which were placed on the tax rolls in 1992, the County is only allowed to collect escaped assessment for the tax years 1992, 1991 (for which none is claimed), and 1990, and the County is barred from collecting assessments for any prior tax years. The County's challenge to this issue fails.
II. ABATEMENT OF THE TAXPAYER'S PENALTIES
K.S.A. 79-1422 provides in pertinent part:
"(b) If, within one year following the date prescribed by K.S.A. 79-306 [March 15], and amendments thereto, any person shall fail to make and file the statement listing property for assessment and taxation purposes or shall fail to make and file a full and complete statement listing property for such purposes, the appraiser shall proceed to ascertain the assessed value of the property of such taxpayer, and for this purpose the appraiser may examine under oath any person or persons whom the appraiser deems to have knowledge thereof. The appraiser shall, after having ascertained the assessed value of such property, add 50% thereto as a penalty for failure to file such statement or for failure to file a full and complete statement.
"(c) The board of tax appeals shall have the authority to abate any penalty imposed under the provisions of this section and order the refund of the abated penalty, whenever excusable neglect on the part of the person required to make and file the statement listing property for assessment and taxation purposes is shown, or whenever the property for which a statement of assessment was not filed as required by law is repossessed, judicially or otherwise, by a secured creditor and such secured creditor pays the taxes and interest due." (Emphasis added.)
K.S.A. 79-1427a provides:
"(a) If, the county appraiser discovers, after the tax roll has been certified to the county clerk, that any tangible personal property subject to taxation has been omitted from the tax rolls, the county clerk shall place such property on the tax roll as an added tax, or if, after one year from the date prescribed by K.S.A. 79-306, and amendments thereto, for the listing of tangible personal property, the county appraiser discovers that any tangible personal property which was subject to taxation in any year or years within two years next preceding January 1 of the calendar year in which it was discovered has not been listed or has been underreported for whatever reason, such property shall be deemed to have escaped taxation. In the case of property which has not been listed, it shall be the duty of the county appraiser to list and appraise such property and, for an added tax, add penalties as prescribed in K.S.A. 79-1422, and amendments thereto, and which shall be designated on the appraisal roll as an added appraisal for that year. In the case of property which has escaped taxation, it shall be the duty of the county appraiser to list and appraise such property and add 50% thereto as a penalty for escaping taxation for each such year during which such property was not listed, and it shall be designated on the appraisal roll as 'escaped appraisal' for each such preceding year or years. In the case of property which has been listed but underreported, it shall be the duty of the county appraiser to list and appraise the underreported portion of such property and add 50% thereto as a penalty for escaping taxation for each such year during which such property was underreported, and it shall be designated on the appraisal roll as 'escaped appraisal' for each such preceding year or years. The county clerk, upon receipt of the valuation for such property in either of the aforementioned cases, shall place such property on the tax rolls and compute the amount of tax due based upon the mill levy for the year or years in which such tax should have been levied, and shall certify such amount to the county treasurer as an added or escaped appraisal. The amount of such tax shall be due immediately and payable within 45 days after the issuance of an additional or escaped property tax bill by the county treasurer. No interest shall be imposed unless the tax remains unpaid after such 45 day period. Taxes levied pursuant to this section which remain unpaid after such 45 day period shall be deemed delinquent and the county treasurer shall collect and distribute such tax in the same manner as prescribed by law for the collection and distribution of other taxes levied upon property which are delinquent. If the owner of such property is deceased, taxes charged as herein provided shall be levied against the estate of such deceased person for only two calendar years preceding death and shall be paid by the legal representative or representatives of such estate. In the event that such escaped appraisal is due to any willful or clerical error of the county appraiser, such property shall be appraised at its fair market value and no penalty shall be added.
"(b) A taxpayer with a grievance as to any penalty applied pursuant to the provisions of this section, may appeal to the state board of tax appeals on forms prepared by the state board of tax appeals and provided by the county appraiser. The state board of tax appeals shall have the authority to abate any penalty imposed under the provisions of this section and order the refund of the abated penalty, whenever excusable neglect on the part of the person required to make and file the statement listing property for assessment and taxation purposes is shown, or whenever the property which has been deemed to have escaped taxation is repossessed, judicially or otherwise, by a secured creditor and such creditor pays the taxes and interest due. No interest shall be assessed during the pendency of this appeal.
"(c) The provisions of this section shall apply to any tangible personal property discovered during the calendar years 1982, 1983, 1984 and any year thereafter to have escaped appraisal and taxation during any such year or any year within two years next preceding any such year." (Emphasis added.)
When the escaped assessments were placed on the tax rolls in 1992, this statute imposed a 100% penalty. However, while this case was pending in the district court, amendments to the statute were enacted in 1995 which only imposed a 50% penalty on escaped assessments. The district court abated the taxpayer's penalty to 10% based on excusable neglect. As such, the question of which penalty applies--100% or 50%--is irrelevant unless the district court's reduction is found to be improper.
Based on these statutes, two types of statutory penalties were at issue in the BOTA case. The personal property assessments listed on the tax rolls in 1992 for tax years 1986, 1987, 1988, and 1989 must be classified as an attempt to recapture personal property values which were not on the taxpayer's original renditions and therefore represent "escaped" assessments. Thus, pursuant to 79-1427a, the Sedgwick County Appraiser applied a 100% mandatory statutory penalty to the taxpayer's "escaped" assessments for the tax years 1986, 1987, 1988, and 1989. The personal property assessments listed on the tax roll in 1992 for the tax year 1990 represent a "late filing" of the taxpayer's rendition. Thus, pursuant to 79-1422, the Sedgwick County Appraiser's Office applied a 50% mandatory statutory penalty to the taxpayer's "late" filings for the tax year 1990. According to the appraiser's office, it imposed both types of penalties against the assessments at issue because of its statutory duty to do so. The appraiser's office asserts that nothing in these statutes gave it the authority to reduce the mandatory penalties.
However, both statutes give BOTA the power to abate both types of penalties whenever "excusable neglect on the part of the person required to make and file the statement listing property for assessment and taxation purposes is shown." K.S.A. 79-1422(c); K.S.A. 79-1427a(b). This is exactly what BOTA did. It found excusable neglect on the part of the taxpayer for its late filings and escaped assessments. Thus, it abated the taxpayer's penalties from 50% and 100% to 10%. The trial court affirmed BOTA's ruling, and the County appeals this ruling.
However, the taxpayer claims that the trial court properly decided this issue. As the taxpayer points out, it did not have the expertise in-house to manage its personal property tax affairs, so it took a common step of relying on a professional in the field, SSB, to handle these affairs. The taxpayer provided information showing its personal property purchases to SSB, and SSB made property tax filings for the taxpayer for several years, with no indication of a problem. According to the taxpayer, this conduct amounted to excusable neglect and justified BOTA and the trial court's abatement of its penalties.
Both parties ask the court to interpret the meaning of the term "excusable neglect" as used within K.S.A. 79-1422 and 79-1427a. Does the term mean that excusable neglect must exist at the time the taxes are due or at the time the tax problems are discovered? Moreover, does a taxpayer exercise excusable neglect by relying heavily on a tax preparer without ever checking the preparer's accuracy?
"Interpretation of a statute is a question of law, and our review is unlimited." In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1. "It is the function of a court to interpret a statute to give it the effect intended by the legislature.
"Usually, interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to great judicial deference. The agency's interpretation of a challenged statute may, in fact, be entitled to controlling significance in judicial proceedings. Further, if there is a rational basis for the agency's interpretation, it should be upheld on judicial review." In re Application of Zivanovic, 261 Kan. 191, Syl. ¶ 4, 929 P.2d 1377 (1996). See City of Wichita v. Public Employee Relations Bd., 259 Kan. 628, 630-31, 913 P.2d 137 (1996); State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 281, 894 P.2d 777 (1995).
"If, however, the ruling court finds that the administrative body's interpretation is erroneous as a matter of law, the court should take corrective steps; the determination of an administrative body of questions of law is not conclusive, and, while persuasive, is not binding on the courts." Boatright v. Kansas Racing Comm'n, 251 Kan. 240, Syl. ¶ 9, 834 P.2d 368 (1992). See National Council on Compensation Ins. v. Todd, 258 Kan. 535, Syl. ¶ 3, 905 P.2d 114 (1995); Hixon v. Lario Enterprises, Inc., 257 Kan. 377, 379, 892 P.2d 507 (1995).
"BOTA is a specialized agency that exists to decide taxation issues. BOTA's decisions should be given great credence and deference when it is acting in its area of expertise. However, if we find that BOTA's interpretation is erroneous as a matter of law, we should take corrective steps." In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 3. See Sunflower Racing, Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426, 447, 885 P.2d 1233 (1994).
"The party challenging the validity of the agency's action bears the burden of proving the invalidity of the action." In re Application of Zivanovic, 261 Kan. 191, Syl. ¶ 3. See also Hedrick v. U.S.D. No. 259, 23 Kan. App. 2d 783, Syl. ¶ 1, 935 P.2d 1083 (1997) (whether agency has erroneously interpreted the law is a question of law).
Applying these rules of construction to K.S.A. 79-1422 and 79-1427a, the question is whether a taxpayer acts in a manner to constitute excusable neglect, so as to abate his or her tax penalties, simply by delegating all the tax preparation responsibilities to an agent (a professional tax preparer) without ever checking the tax preparer's accuracy. Beverly California Corp. v. State, 23 Kan. App. 2d 680, 934 P.2d 992 (1997); and Columbia Savings Ass'n v. McPheeters, 21 Kan. App. 2d 919, 911 P.2d 187 (1996), support a negative answer to this question. Both of these cases deal with what acts constitute "excusable neglect" as that term is used in various statutes.
The Beverly case involved seven claims for unemployment compensation from five employers. An examiner for the Kansas Department of Human Resources mailed the employers notices of the unemployment claims. Each notice included a form for the employer to fill out and return to the examiner if