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STATE OF MISSISSIPPI v. BILLIE J. BURNHAM

JUNE 21, 1989

STATE OF MISSISSIPPI
v.
BILLIE J. BURNHAM, a/k/a BILLIE JACK BURNHAM, a/k/a BILL BURNHAM



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

The State through its legislature has enacted that any person who wilfully attempts "to evade or defeat any tax imposed by the State Tax Commission" shall be guilty of a felony, and the question is whether the statute may be enforced against today's taxpayer appellant notwithstanding that the Commission lacks authority to impose any taxes. The case turns on whether the act fairly told taxpayer what conduct would render him amenable to prosecution. Although as with any tax scheme modest intricacy is attendant, we find the notice sufficient unto the day.

 II.

 Billie J. Burnham, a plumbing and electrical contractor in Rankin County, may or may not have willfully evaded the payment of retail sales tax, six percent of sales, to the state. Believing that he did, the District Attorney sought an indictment, with eighteen repetitious counts *fn1 (one for each month). The indictments cover consecutively the months between July, 1986 and January, 1988.

 On July 14, 1988, taxpayer Burnham moved to dismiss the indictments, arguing they fail to charge him with a criminal offense. Upon hearing, the Circuit Court granted the motion, ruling that (1) the indictments charge no crime under Miss. Code Ann. 27-3-79 (2) and (2) that Burnham can be convicted under no

 other statute for failing to pay sales taxes. The State here appeals that ruling.

 III.

 The Legislature has the power to enact a sales tax. No one here disputes that it has so enacted. Miss. Code Ann. 27-65-23 (1972) provides that "upon every person engaging or continuing in any of the following businesses or activities there is hereby levied, assessed and shall be collected a tax equal to six percent (6%)." Those engaged in retail sales collect the tax, hold it in trust for the state, and report and remit to the Commission, which is charged ultimately with administration of the Sales Tax laws.

 The statute, under which taxpayer Burnham has been indicted, charges in pertinent part that

 . . . any person who, after July 1, 1986, wilfully attempts in any manner to evade or defeat any tax imposed by the State Tax Commission . . . in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than One Hundred Thousand Dollars ($100,000.00) and, in the case of a corporation, not more than Five Hundred Thousand Dollars ($500,000.00) or imprisoned not more than five (5) years, or both.

 Miss. Code Ann. 27-3-79 (2) (Supp. 1987) The crucial part of the statute is that which declares unlawful wilful attempts "to evade or defeat any tax imposed by the State Tax Commission." [Emphasis added] The Circuit Court held the statute unenforceable against Burnham because the State Tax Commission has no power to impose or levy a tax, and "imposed" does not mean the same thing as "collect" . The statute charges no crime, or so we are told. Of course the State Tax Commission *fn2 has no authority to impose any tax. Constitutionally, imposition may be of legislative origin only. See Miss. Const. Art. 4, 33 (1890); Columbia Gulf Transmission Company v. Barr, 194 So.2d 890, 895 (Miss. 1967); Board of Supervisors of Attala County v. Illinois Central Railroad Co., 186 Miss. 294, 305, 190 So. 241, 243 (1939).

 We are reminded that statutes imposing criminal penalties must be construed strictly in favor of the accused, a proposition which may not be doubted, e.g., State v. Martin, 495 So.2d 501, 502 (Miss. 1986); McLamb v. State, 456 So.2d 743, 745 (Miss. 1984); Schloder v. State, 310 So.2d 721, 723 (Miss. 1975), but does not carry us far. "The canon in favor of strict construction is not

 an inexorable command to override common sense and evident statutory purpose." United States v. Brown, 333 U.S. 18, 25, 68 S. Ct. 376, 380, 92 L.Ed. 442, 448 (1948). Not every infelicity in legislative expression exonerates the accused, cf. Henderson v. State, 445 So.2d 1364, 1366-68 (Miss. 1984); and Columbia Gulf Transmission Company v. Barr, 194 So.2d 890, 894 (Miss. 1967), only those which so infect the statute that it fails reasonably to inform what conduct will render him amenable to prosecution. ABC Interstate Theaters, Inc. v. State, 325 So.2d 123, 125-26 (Miss. 1976). See Mississippi Cottonseed Products Co. v. Stone, 184 Miss. 409, 421, 184 So. 428, 431 (1938) (authorizing enforcement of tax statute "even to the extent of correcting errors in the language used"); see also Aikerson v. State, 274 so.2d 124, 127-28 (Miss. 1973); Martin v. State, 190 Miss. 32, 40-41, 199 So. 98, 101 (1940); Gandy v. Public Service Corporation of Mississippi, 163 Miss. 187, 197, 140 So. 687, 689 (1932); Roseberry v. Norsworthy, 135 Miss. 845, 858-59, 100 So. ...


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