-39-
Based on a proposed finding of fact by respondent, to which
petitioners stated that they had no objection, we have found that
the State tax assessment was for sales and use taxes that were
never collected by SLC. That being the case, under the North
Carolina statute, Dudley Merkel and David Hepburn could be liable
as corporate officers only if they were responsible officers who
knew, or should have known, that the tax was not being collected.
There is no persuasive evidence that they knew, or should have
known, that the tax was not being collected. Also, N.C. Gen.
Stat. sec. 105-253(b) (1991) (flush language) appears to grant
the Secretary of the Department of Revenue some discretion in
assessing and collecting the tax from responsible corporate
officers.
The Department of Revenue never proposed nor made an
assessment against any of petitioners relating to the State tax
assessment. Petitioners have failed to prove that any assessment
was ever likely to be made against Dudley Merkel and David
Hepburn. Therefore, we have no basis to find that, as of the
measurement date, the State tax exposure represented an
obligation to pay that would result in petitioners' being called
upon to pay any amount on account thereof.
III. Conclusion
Petitioners have failed to prove that they would be called
upon to pay any amount with respect to either petitioners'
guarantees or the State tax exposure, and, thus, neither
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