§ 26-74. Collection remedies and procedures.

(a)

For the purpose of the enforcement of this division, and the collection of the tax levied under this division, it is presumed that all tangible personal property, subject to the provisions of this division, imported into this district or held in this district by any dealer is to be sold at retail, used or consumed, or stored for use or consumption in this district, and is subject to the tax levied in this division; provided, however, that such presumption shall be prima facie only, and subject to proof furnished to the collector.

(b)

Failure to pay any tax due, as provided in this division, shall, ipso facto, without demand or putting in default, cause such tax, interest, penalties and costs to become immediately delinquent, and the collector is hereby vested with authority, on motion in a court of competent jurisdiction, to take a rule on the dealer, to show cause in not less than two or more than ten days, exclusive of holidays, after the service thereof, which may be tried out of term and in chambers, and shall always be tried by preference, why such dealer should not be ordered to cease from further pursuit of business as a dealer, and in case such rule is made absolute, the order thereon rendered shall be considered a judgment in favor of the sheriff, prohibiting such dealer from the further pursuit of such business until such time as he has paid the delinquent tax, interest, penalties and costs. Every violation of the injunction shall be considered as a contempt of court, and punished according to law.

(c)

If the amount of tax due by the dealer is not paid on or before the 20th day of the month next following the month for which the tax is due, there shall be collected, with such tax, interest upon such unpaid amount, at the rate of 18 percent per annum, or fractional part thereof, to be computed from the first day of the month next following the month for which the tax is due until it is paid. In addition to the interest that may be so due, there shall also be collected a penalty equivalent to five percent for each 30 days, or fraction thereof, of delinquency, not to exceed 25 percent in aggregate, of the tax due, when such tax is not paid within 30 days of the date the tax first becomes due and payable, and in the event of suit, attorneys' fees at the rate of 25 percent of the aggregate of tax, interest and penalty.

(d)

If any dealer fails to make a report and pay the tax as provided by this division, or in case the dealer makes a grossly incorrect report, or a report that is false or fraudulent, it shall be the duty of the collector to make an estimate for the taxable period of the retail sales, or sales of services, of such dealer, or of the gross proceeds from rentals or leases of tangible personal property by the dealer, and an estimate of the cost price of all divisions of tangible personal property imported by the dealer for use or consumption or distribution or storage to be used or consumed in this district and assess and collect the tax and interest, plus penalty, if such have accrued, on the basis of such assessment, which shall be considered prima facie correct. The burden to show the contrary shall rest upon the dealer. If such estimate and assessment requires an examination of books, records or documents, or an audit thereof, then the collector shall add to the assessment the cost of such examination, together with all penalties accruing thereon. If any dealer fails to make any return required by this division or makes an incorrect return, and the circumstances indicate willful negligence or intentional disregard of rules and regulations, but no intent to defraud, there shall be imposed in addition to any other penalties provided in this division, a specific penalty of five percent of the tax or deficiency found to be due, or $10.00, whichever is greater. This specific penalty shall be an obligation to be collected and accounted for in the same manner as if it were a part of the tax due and can be enforced either in a separate action or in the same action for the collection of the tax.

(e)

If any dealer liable for any tax, interest or penalty under this division shall sell out his business or stock of goods or shall quit the business, he shall make a final return and payment within 15 days after the date of selling or quitting business. His successors or assigns, if any, shall withhold sufficient of the purchase money to cover the amount of such taxes, interest and penalties due and unpaid until such time as the former owner shall produce a receipt from the collector showing that they have been paid, or a certificate stating that no taxes, interest or penalties are due. If the purchaser of a business or stock of goods shall fail to withhold purchase money as provided, he shall be personally liable for the payment of the taxes, interest and penalties accrued and unpaid on account of the operation of the business by any former owners or assignors. In the case of a dealer who has quit business, and who subsequently opens another similar business under the same ownership, whether that ownership is individual, partnership, corporation or other, that dealer shall be liable for any tax, interest, penalty, cost or fee owed by the original business.

(f)

If any dealer is delinquent in the payment of the tax provided for in this section, the collector may give notice of the amount of such delinquency by registered mail to all persons having in their possession, or under their control, any credits or other personal property belonging to such dealer, or owing any debts to such dealer at the time of receipt by them of such notice, and thereafter any person so notified shall neither transfer nor make any other disposition of such credits, other personal property, or debts until the collector shall have consented to a transfer or disposition, or until 30 days shall have elapsed from and after the receipt of such notice. All persons so notified must, within five days after receipt of such notice, advise the collector of any and all such credits, other personal property or debts, in their possession, under their control or owing by them, as the case may be.

(g)

If the dealer has imported tangible personal property and he fails to produce an invoice showing the cost price of the divisions which are subject to tax, or the invoice does not reflect the true or actual cost price, then the collector shall ascertain, in any manner feasible, the true cost price and assess and collect the tax with interest, plus penalties, if such have accrued, on the true cost price as assessed by him. The assessment so made shall be considered prima facie correct, and the burden shall be on the dealer to show the contrary.

(h)

In the case of the lease or rental of tangible personal property, if the consideration given or reported by the dealer does not, in the judgment of the collector, represent the true or actual consideration, then the collector is authorized to fix the same and collect the tax thereon for the sheriff in the same manner as provided in subsection (g) of this section, with interest, plus penalties, if such have accrued.

(i)

If any transportation company, agency or firm shall refuse to permit examination of its books, records and other documents by the collector, the collector may proceed by rule, in term or in chambers, in any court of competent jurisdiction and require such transportation company, agency or firm to show cause why the collector should not be permitted to examine its books, records or other documents, and in case such rule be made absolute, the same shall be considered a judgment of the court and every violation of such judgment as a contempt thereof and punished according to law.

(j)

If any dealer, subject to make and file a return required by any of the provisions of this division, fails to render such return within the time required, or renders a return which is false or fraudulent, in that it contains statements which differ from the true gross sales, purchases, leases or rentals, or other transactions, taxable under this division, or otherwise fails to comply with the provisions of this division, for the taxable period for which such return is made, the collector shall give such dealer 15 days' notice, in writing, requiring such dealer to appear before him or his assistant, with such books, records and papers as he may require, relating to the business of such dealer, for such taxable period. Such collector may require such dealer, or other agents or employees of such dealer, to give testimony or to answer interrogatories, under oath administered by the collector or his assistants, respecting the sale at retail, the use, or consumption, or distribution, or storage for use or consumption, in this district, or lease or rental of tangible personal property, or other transactions, subject to tax, or the failure to make report thereof, as provided in this division.

(k)

If any dealer fails to make a return, or refuses to permit an examination of his, the dealer's, books, records or papers, or to appear and answer questions within the scope of such investigation relating to the sale, use, consumption, distribution, storage, lease or rental of tangible personal property, or sale of services, the collector may apply to any court of competent jurisdiction, for an order requiring such dealer to make such return or requiring the dealer, or his agents or employees, to appear and to answer any such questions or permit such examination. The court or any judge of the court shall thereupon issue an order, upon such reasonable notice as shall be prescribed therein, to be served upon such dealer or the agents or employees of such dealer, directing him or them to so appear and testify, and to produce such books, records, and papers as may be required. Any person, or any member of any firm, co-partnership, joint venture, association or corporation, or any agent or employee thereof, failing to comply with any such order shall be guilty of contempt, and shall be punished as provided by law in cases of contempt.

(l)

The importation into this district of tangible personal property which is subject to tax, by truck, automobile or other means of transportation, other than a common carrier, without having first obtained a permit as described in section 26-73 (if the tax imposed by this division on such tangible personal property has not been paid), shall be construed as an attempt to evade payment of such tax, and the same is hereby prohibited, and the such truck, automobile, or means of transportation other than a common carrier, and such taxable property may be seized by the collector in order to secure the same as evidence in a trial, and the same shall be subject to forfeiture and sale in the manner provided for in this division.

(m)

The failure of any dealer who imports tangible personal property from outside the district into the district for use or consumption or distribution or storage to be used or consumed in this district, or who imports for lease or rental any tangible personal property subject to the provisions of this division, shall ipso facto make the tax, interest, penalties and costs delinquent, and shall be construed as an attempt to avoid the payment of the same which shall be sufficient grounds for attachment of such tangible personal property wherever the same may be located or found, whether such delinquent dealer be a resident or nonresident of this parish, and whether such tangible personal property is in the possession of such delinquent dealer or in the possession of other persons, firms, corporations, or association of persons; provided, however, that it is the intention of this division to prevent the disposition of the such tangible personal property in order to ensure payment of the tax imposed by this division, together with interest, penalties and costs. Authority to attach is hereby specifically authorized and granted to the collector. In addition to the penalties prescribed in this subsection (m) and the preceding subsection (l), any person or dealer, who shall violate the provisions of such subsections, upon conviction, shall be fined in a sum of not more than $100.00 or imprisonment in jail for a period of not more than 60 days, or by both such fine and imprisonment, in the discretion of the court. Each importation or shipment by truck, automobile, or other means of transportation, other than a common carrier, found to be in violation of the provisions of these sections shall constitute a separate offense.

(n)

The liability of any person or dealer arising from any tax, interest and penalty, or any of them, imposed by this division, from the time they are due, shall be a personal debt of such person or dealer to the collector, recoverable in any court of competent jurisdiction in an action at law by the collector. Such debts, whether sued upon or not, shall be a lien on all the property of such delinquent person, or dealer, except as against an innocent purchaser for value without notice in the actual course of business, and shall have preference in any distribution of the assets of the person, or dealer, whether in bankruptcy, insolvency, or otherwise. The proceeds of any judgment or order obtained under this section shall be paid to the collector.

(o)

The collector may require a bond or other security satisfactory to him for the payment of any taxes, fees, interest and penalties, or any of them, imposed pursuant to this division when he shall find that the collection thereof may be prejudiced without such security.

(p)

If any person or dealer shall fail to make a return or report as required by this division, the collector, after the last day on which the omitted report could have been filed without penalty, may make an estimate of the amount of taxes such person or dealer is liable to pay under the terms of this division, from any information he is able to conveniently obtain, and according to such estimate so made by him, assess the taxes, fees, penalties and interest due the collector from such person or dealer give notice of such assessment to such person or dealer, and must make demand upon him for payment, or otherwise the such claim shall prescribe.

(q)

After a return or report is filed under the provisions of this division, the collector shall cause to be examined and make such further audit or investigation as he may deem necessary, and if therefrom he shall determine that there is a deficiency with respect to the payment of any tax due under this division, he shall assess the additional amount of tax, and any penalties and interest, or either of them due the collector from such person, or dealer, and make demand upon him for payment.

(r)

If the collector finds that any person or dealer liable for the payment of any tax under this division designs quickly to depart from this parish or to remove therefrom his or its property, subject to any lien under the provisions of this division, or to discontinue business, or to do any other act tending to prejudice or render wholly or partially ineffectual any proceedings that might be instituted to collect such tax, whereby it shall have become important that such proceedings be instituted without delay, the collector may make an arbitrary assessment as provided in this section, whether or not any return or report is then due by law, and may proceed under such arbitrary assessment to collect the tax, or demand security for it, and thereafter shall cause notice of such findings to be given to such a dealer, together with a demand for an immediate return or report, and immediate payment of such tax. All taxes, penalties and interest assessed pursuant to the provisions of the last three preceding subsections (o), (p) and (q), shall be paid within 15 days after notice and demand shall have been mailed to the dealer liable therefor by the collector. If such taxes, penalties and interest so assessed shall not be paid within such 15 days, there shall be added to the amount assessed, in addition to interest as provided in this section, and any other penalties provided by this division, a sum equivalent to five percent of the tax.

(s)

If any dealer against whom taxes have been assessed under the provisions of this division shall refuse or neglect to pay such taxes within the time prescribed in this division, it shall be lawful for the collector, or his duly authorized representative, who is charged with the enforcement of collection of such taxes, to enforce collection of such taxes, together with such interest and other additional amounts as are added by law, by distraint and sale of any property or rights to property belonging to the delinquent dealer.

(t)

Notwithstanding any other provision of law to the contrary, if any corporation fails to file returns or to remit the sales and use taxes collected from purchasers or consumers, the collector may, as an additional means of enforcing collection, without prejudice to any other remedies at his disposal, hold those officers or directors having direct control or supervision of such taxes or charged with the responsibility of filing such returns and remitting such taxes and who willfully fail to remit or account for such taxes withheld or collected, personally liable for the total amount of such taxes withheld or collected, and not accounted for or not remitted, together with any interest, penalties and fees accruing thereon. Collection of the total amount due may be made from any one or any combination of such officers or directors who willfully fail to remit or account for such taxes withheld or collected, by use of any of the alternative remedies for the collection of taxes as provided either in R.S. 47:1561 or under any provisions of either this division or any other law.

(u)

For any one of the following violations, in addition to being liable for the other penalties provided in this section, the party named shall be guilty of a misdemeanor and, upon conviction, be punished by a fine of not more than $100.00, or imprisonment in jail for not more than 60 days, or both, in the discretion of the court:

(1)

Any person who as a purchaser is obligated to report and pay the tax imposed upon any purchase made by him under section 26-69(a)—(j) and who fails, neglects and refuses to file a return thereof with the collector and pay the tax imposed thereon, within the time stated after such sale is made;

(2)

Any dealer who shall fail, neglect, or refuse to collect the tax as provided in section 26-69(a)—(j), whether by himself or through his agents or employees;

(3)

Any dealer violating the provisions of subsections (e) and (f) of this section;

(4)

Any dealer who fails to permit an inspection of records by the collector as provided in section 26-72(a);

(5)

Any wholesale dealer or jobber in this district who fails to keep records, or fails to permit an inspection of such records by the collector as provided in section 26-72(e);

(6)

Any dealer, wholesale dealer or jobber who violates the provisions of section 26-69(d) and (e);

(7)

Any dealer who violates the provisions of section 26-72(b);

(8)

Any dealer failing or refusing to furnish any return as provided in section 26-71(a)—(f), or failing or refusing to furnish a supplemental return, or other data required by the collector;

(9)

Any dealer required to make, render, sign or verify any return as provided in section 26-71(a)—(f), who makes a false or fraudulent return, with intent to evade a tax hereby levied;

(10)

The president, executive officers, managers, and/or directors of any corporation, who shall violate the provisions of either subsections (t) or (v) of this section; provided, however, that such fine and imprisonment shall not prevent other action against the corporation as otherwise provided in this division for the recovery of the tax, interest and penalties that may be due; and

(11)

Any person who shall violate any other provisions of this division, punishment for which is not otherwise provided in this section.

(v)

No corporation organized under the laws of this state shall hereafter be dissolved, or effect a merger, reorganization or consolidation under any law of this state by the action of the stockholders or by the decree of any court until all taxes, fees, penalties and interest imposed on the corporation in accordance with provisions of this division shall have been paid in full. No foreign corporation which has obtained authority from this state to transact business in this parish may surrender such authority and withdraw from this state until all taxes, fees, penalties, interest, and other charges imposed upon such corporation in accordance with the provisions of this division shall have been fully paid.

(w)

Any person or dealer who shall fail to pay any tax levied by this division on or before the day when such tax shall be required by this division to be paid, shall pay in addition to the tax, interest on the tax at the rate specified in subsection (c) of this section, for each month or fraction thereof that the tax remains unpaid, to be calculated from the date the tax was originally due to the date of actual payment. In addition, such person or dealer shall pay any special penalties provided by this division.

(x)

All penalties and interest imposed by this division shall be payable to and recoverable by the collector in the same manner as if they were part of the tax imposed. If the failure to pay any such tax when due is explained to the satisfaction of the collector, he may at his discretion remit or waive payment of the whole or any part of any penalty or interest.

(Code 1966, § 17-42)