OAR 150-475-2040: Liability for Unpaid Marijuana Tax

(1) For purposes of this rule, "marijuana retailer" has the meaning given under OAR 150-475-2010 and includes, but is not limited to, an officer, member, or employee of a corporation, partnership, or other business entity that makes retail sales of marijuana items to consumers, if, among other duties, that individual has: (a) Authority to see that the marijuana taxes are paid when due; (b) Authority to prefer one creditor over another; (c) Authority to hire and dismiss employees; (d) Authority to set employees' working conditions and schedules; (e) Authority to sign or co-sign checks; (f) Authority to compute and sign marijuana tax reports; (g) Authority to make fiscal decisions for the business; or (h) Authority to incur debt on behalf of the business. (2) It is the duty of a marijuana retailer to hold in trust any amount of marijuana tax collected from the sale of limited retail marijuana products or marijuana items and to assume custodial liability for amounts to be paid to the department. Any marijuana retailer who fails to pay the marijuana tax when due is subject to penalties, as provided by law, as any other taxpayer who fails to file a return or pay a tax when due. (3) If a marijuana retailer fails to file returns or to pay any collected marijuana tax when due, any or all officers, members, and employees may be held personally responsible, as provided in this rule, for the returns and payments together with any interest and penalties due. (4) To be held personally liable for unpaid marijuana tax under ORS 475C.688, a person must be a marijuana retailer. In addition, the person must be in a position to pay the marijuana tax or direct the payment of the marijuana tax at the time the duty arises to collect or pay over the marijuana taxes. The person may be personally liable if the individual was, or should have been aware, that the marijuana taxes were not paid to the department. A marijuana retailer cannot avoid personal liability by delegating their responsibilities to another. (5) The following factors do not preclude a finding that an individual is liable for the payment of marijuana taxes: (a) Lack of willfulness in failing to pay over the required marijuana tax; (b) The individual’s receipt of remuneration; (c) Maintenance of full-time employment elsewhere; (d) Another individual is also liable for the same marijuana taxes; (e) A corporate bylaw or partnership agreement position description to the contrary; (f) Absence of signatory authority on a business bank account; (g) Absence of bookkeeping or recordkeeping duties; (h) Absence of authority to hire, fire, and to set working conditions and schedules; or (i) Delegation to another person any functions indicating liability.