174 [86 Op. Att’y

COMPTROLLER

INCOME TAX – SALES AND USE TAX – FIELD ENFORCEMENT

DIVISION PERSONNEL MAY EXERCISE PEACE OFFICER

POWERS ONLY TO EXTENT AUTHORIZED BY STATUTE

July 11, 2001

The Honorable William Donald Schaefer

Comptroller

You have asked for our opinion concerning the authority of the

Field Enforcement Division (“the Division”) of the Comptroller’s

Office to enforce the various tax laws that the Comptroller

administers. As we understand your inquiry, you wish to know

whether you may assign personnel in the Division to help administer

the sales and use tax and income tax laws. In addition, you wish to

know whether an employee so assigned may exercise the powers of

a peace officer in administering those laws.

Our opinion is as follows: Under State law you may direct

employees in the Division to assist in the enforcement of the various

tax laws that Comptroller’s Office administers. However, those

employees may exercise the powers of a peace officer only to the

extent authorized by statute. The Legislature has conferred such

powers on Division personnel as to certain enumerated laws, but not

as to the sales and use tax law or the income tax law. Thus,

employees of the Division may not exercise the powers of a peace

officer for purposes of administering and enforcing the sales and use

tax or income tax laws.

 I

Background

A. Tax Laws Administered by the Comptroller

The General Assembly has assigned to the State Comptroller

the responsibility to administer a variety of State taxes. A provision

of the Tax-General Article lists those taxes as follows:
Gen. 174] 175

 TG §2-102 was enacted during code revision as a non-exclusive 1

summary of taxes administered by the Comptroller. See Chapter 2, §1,

Laws of Maryland 1988, Revisor’s Note at pp. 24-25. The section

originally enumerated nine tax laws. Later enactments added the

Maryland generation-skipping transfer tax, Chapter 643, §2, Laws of

Maryland 1988, and transferred administration of the boxing and wrestling

tax from the State Athletic Commission to the Comptroller, Chapter 692,

Laws of Maryland 1994.

 Until very recently, the Division was denominated the 2

“Investigative Services Unit.” See Chapter 29, Laws of Maryland 2001.

Many of the duties performed by the Division were originally assigned by

(continued...)

In addition to the duties set forth

elsewhere in this article and in other articles of

the Code, the Comptroller shall administer the

laws that relate to:

(1) the admissions and amusement tax;

(2) the alcoholic beverage tax;

(3) the boxing and wrestling tax;

(4) the income tax;

(5) the Maryland estate tax;

(6) the Maryland generation-skipping

transfer tax;

(7) the motor carrier tax;

(8) the motor fuel tax;

(9) the sales and use tax;

(10) the savings and loan association franchise tax;

and

(11) the tobacco tax.

Annotated Code of Maryland, Tax-General Article (“TG”), §2-102.1

Laws governing the listed taxes are set forth in other titles of the

Tax-General Article that are cross-referenced in the definitions

section of that Article. See TG §1-101(b)-(d), (i), (l)-(o), (s)-(t), (w).

As is evident from this list, the Comptroller administers both the

income tax and the sales and use tax.

B. Field Enforcement Division

Within the Comptroller’s Office is a unit currently known as

the Field Enforcement Division. Two provisions of the Annotated 2
176 [86 Op. Att’y

 (...continued) 2

statute to separate units dedicated to the enforcement of specific tax laws.

See Chapter 782, Laws of Maryland 1953 (alcoholic beverages

enforcement unit); Chapter 669, Laws of Maryland 1961 (cigarette tax

enforcement unit); Chapter 448, Laws of Maryland 1972 (enforcement of

motor fuel tax law). See also Part II.B.2 of this opinion.

 Other taxes listed in TG §2-102 but omitted from the enforcement 3

purview ofthe Division are the admissions and amusement tax, the boxing

and wrestling tax, the estate tax, the generation-skipping transfer tax, and

the savings and loan association franchise tax.

Code set forth the powers of the personnel in that Division. See TG

§2-107; Annotated Code of Maryland, Article 2B, §16-407. They

are to be “sworn police officers.” TG §2-107(a)(1); Article 2B, §16-

407(b). They are to “have all the powers, duties, and responsibilities

of a peace officer” for the purpose of enforcing certain laws

designated in those statutes. TG §2-107(a)(2); Article 2B, §16-

407(b). In particular, those powers are to be used to enforce the

following laws:

(i) alcoholic beverage tax;

(ii) tobacco tax;

(iii) motor fuel tax;

(iv) motor carrier tax;

(v) motor fuel and lubricants; and

(vi) transient vendors within the

meaning of Subtitle 20A of Title 17

of the Business Regulation Article.

TG §2-107(a)(2). In addition, the Division is to exercise its police

powers to enforce the State laws that restrict the importation,

manufacture, distribution, and handling of alcoholic beverages.

Article 2B, §16-407(b). 

As is evident from a cursory comparison of thislist with the list

of tax laws set forth in TG §2-102, the statutes granting peace officer

powers do not direct the Division to enforce all of the tax laws

administered by the Comptroller. In particular, among the tax laws

administered by the Comptroller but omitted from the list of laws

that the Division is authorized to enforce are the income tax law and

the sales and use tax law.3
Gen. 174] 177

 One statute, the Maryland Mental Hygiene Law, defines “peace 4

officer” for purposes of identifying those officers authorized to take an

individual suspected of a mental disorder to a facility for an emergency

evaluation. See Annotated Code of Maryland, Health-General Article,

§10-620(f) (defining “peace officer” as “a sheriff, a deputy sheriff, a State

police officer, a county police officer, a municipal or other local police

officer, or a Secret Service agent who is a sworn special agent of the

United States Secret Service or Treasury Department authorized to

exercise powers delegated under 18 U.S.C. §3056.”). 

You have asked whether you may direct employees in the

Division to enforce the sales and use tax and income tax laws and,

if so, whether those employees may exercise the powers of a peace

officer in that capacity.

II

Analysis

A. Assignment of Field Enforcement Division Personnel to

Other Duties

The Comptroller has broad authority to transfer and assign

duties within his office. In particular, “the Comptroller may transfer

any staff ... from any unit in the Office of the Comptroller to another

unit in the office.” Annotated Code of Maryland, State Government

Article, §4-106(a). Under that authority, the Comptroller could

assign personnel of the Division to assist in the administration of the

sales and use tax and income tax laws. 

B. Exercise of Peace Officer Powers

Your primary concern appears to be whether members of the

Division may exercise the powers of peace officers if they are

transferred to administer the income tax or the sales and use tax. 

1. Peace Officer Powers

While there is no general definition of “peace officer” set forth

in Maryland statutes or court rules, the phrase is “commonly 4

understood ... [to mean] ... a person charged with the duty to enforce
178 [86 Op. Att’y

 The statute defines “conveyance” as: 5

(1) an aircraft, vehicle, or vessel that is used

to transport alcoholic beverages, cigarettes, or

other tobacco products; and

(2) a tank car, vehicle, or vessel that is used

to transport motor fuel and that, exclusive of any

tank used for its own propulsion, has a capacity

exceeding 50 gallons.

TG §13-834(e).

 Under the statute, these products are “contraband” if they are 6

“delivered, possessed, sold, or transferred” in violation of the pertinent tax

law. See TG §13-834(b)-(d) (definitions of “contraband alcoholic

beverage”, “contraband tobacco products”, and “contraband motor fuel”.

and preserve the public peace.” Huger v. State, 285 Md. 351, 402

A.2d 880 (1979) (quoting Black’s Law Dictionary). The phrase thus

includes sheriffs, police officers, and other law enforcement officers.

See Black’s Law Dictionary (7 ed. 1999) at p. 1151. 

th

Designation as a peace officer confers certain powers on

Division personnel. Under the Maryland Rules, a peace officer may

issue a citation or sign a statement of charges that initiates a criminal

proceeding. Maryland Rules 4-102(b), 4-202(b). A peace officer

may execute arrest and search warrants. Maryland Rule 4-102(l).

In addition, a peace officer is authorized to execute a body

attachment and take a recalcitrant witness into custody. Maryland

Rules 1-202(c), 2-510(i), 3-510(i), 4-266(d), and 4-267(a).

Employees of the Division are also specifically authorized to make

warrantless arrests in certain circumstances. Article 27,

§594B(g)(12) (including members of the Division in the definition

of “police officer” in the statute authorizing warrantless arrests).

The Tax-General Article itself authorizes searches and seizures

by peace officers, including personnel of the Comptroller’s Office,

with respect to violations of specific laws. In particular, it

authorizes an officer to stop and search a “conveyance” if the 5

officer reasonably suspects that the conveyance is carrying

contraband alcoholic beverages, tobacco products, or motor fuel.6

TG §13-835(a)(2), (b)(2). The statute further authorizes the

warrantless seizure of contraband alcoholic beverages, tobacco

products, and motor fuel. TG §13-835(a)(1), (b)(1). Finally, any
Gen. 174] 179

conveyance used to transport such contraband may be seized. TG

§13-835(a)(3), (b)(3). 

2. Statutory Authority and Legislative History

TG §2-107(a)(2) and Article 2B, §16-407(b) confer law

enforcement powers on the Division “for the purpose” of enforcing

specifically identified laws. Thus, the literal language of those

statutes limits the exercise of those powers to enforcement of certain

laws, not including the income tax law or the sales and use tax law.

The legislative history of those statutes is also instructive. In

1953, the Legislature first conferred peace officer powers on a unit

in the Comptroller’s Office when it enacted the predecessor of

Article 2B, §16-407. Chapter 782, Laws of Maryland 1953. The

preamble of that bill cited the need for a statewide unit to enforce

laws regarding the illegal importation, manufacture, and sale of

alcoholic beverages. The legislation created a “special” Maryland

Alcohol Tax Enforcement Unit in the Comptroller’s Office and

authorized sworn police officers in that unit to exercise the powers,

duties, and responsibilities of peace officers in the enforcement of

the State alcoholic beverages law. While the identification of the

unit has changed with various reorganizations of the Comptroller’s

Office, the authorization to exercise police powers embodied in §16-

407 remains limited to enforcement of the alcoholic beverages laws.

There appears no basis for extending the powers conferred by this

part of the alcoholic beverages law to the enforcement of the income

tax law or the sales and use tax law. 

TG §2-107 is essentially an amalgam of the Comptroller’s

enforcement powers under several regulatory schemes. In 1961, the

Legislature conferred peace officer powers on agents of the

Comptroller’s cigarette tax unit for purposes of enforcement of that

tax. Chapter 669, Laws of Maryland 1961, codified as Annotated

Code of Maryland, Article 81, §4591⁄2. This unit was later combined

with another unit having similar peace officer powers to form the

Alcohol and Tobacco Tax Enforcement Unit, which was formally

recognized in a 1978 amendment of the law governing alcoholic

beverages. Chapter 36, Laws of Maryland 1978 amending

Annotated Code of Maryland, Article 2B, §191. In 1988, as part of
180 [86 Op. Att’y

See Annotated Code of Maryland, Business Regulation Article, 7

§10-101 et seq.

the creation of the Tax-General Article, a new TG §2-107 was

created conferring peace officer powers on employees of that unit

“for the purpose of enforcing alcoholic beverage tax and tobacco tax

laws.” Chapter 2, §1, Laws of Maryland 1988.

A 1993 reorganization of the Comptroller’s Office combined

the Alcohol and Tobacco Tax Enforcement Unit with the Motor Fuel

Enforcement Unit into a new Investigative Services Unit, which was

expressly recognized in a 1995 revision of the pertinent statutes. See

Chapter 3, §2, Laws of Maryland 1995, Drafter’s Note at p. 203.

While the Investigative Services Unit now had responsibility for the

enforcing the State’s motor fuel and lubricant laws, neither of the 7

statutes defining the powers of the Investigative Services Unit

conferred peace officer powers for that purpose. See Annotated

Code of Maryland, Business Regulation Article (“BR”), 10-206

(1992 Vol., 1995 Supp.); TG §2-107 (1988 Vol., 1995 Supp.). 

In 1996, the Legislature extended the police powers of the

Investigative Services Unit to encompass its enforcement of the

motor fuel and lubricant laws. Chapter 597, Laws of Maryland 1996

(repealing BR §10-206 and amending TG §2-107). At the same

time, it also authorized the unit to enforce the tax laws relating to

motor fuel and motor carriers and the law regulating transient

vendors, and to exercise peace officer powers for those purposes. Id.

A report by the Senate committee that recommended passage of the

bill indicated a legislative understanding that, without these

amendments, the peace officer powers of the Investigative Services

Unit were limited to enforcement of the alcoholic beverage tax and

tobacco tax laws. See Floor Report of Senate Judicial Proceedings

Committee for Senate Bill 726 (1996). The unit has since been

renamed the Field Enforcement Division without any change in its

responsibilities or powers. Chapter 29, Laws of Maryland 2001. 

Thus, the history of Article 2B, §16-407, and TG §2-107

demonstrates that the General Assembly has given the Field

Enforcement Division and its predecessors a limited, though

expanding, responsibility to use police powers to enforce laws

administered by the Comptroller. Given this history, the

Legislature’s failure to include the income tax or sales and use tax

laws, on the list of laws enforced by the Field Enforcement Division

does not appear to be an oversight. Moreover, while not dispositive
Gen. 174] 181

of the issue, we note that the General Assembly has rejected recent

proposals to add the sales and use tax and income tax laws, among

others, to the list of laws enforced by the Division. See House Bill

31 (2001); House Bill 1391 (2000).

 

3. Summary

In a prior opinion, this Office considered the scope of the law

enforcement powers exercised by sworn inspectors of the Prince

George’s County Board of License Commissioners. See Opinion

No. 91-008 (February 1, 1991) (unpublished). State law granted

those inspectors “all the powers of a peace officer.” By its own

terms, the pertinent statute did not set specific limits on the exercise

of those powers. However, the opinion concluded that, while the

inspectors could exercise law enforcement powers with respect to

alcoholic beverages offenses, those powers did not extend to

offenses under the Maryland Vehicle Law or the general criminal

laws.

The scope of the peace officer powers of Division personnel is

even more explicitly defined. Since it first created special

enforcement units within the Comptroller’s Office, the Legislature

has specifically limited the exercise of peace officer powers to the

enforcement of specifically identified laws. While that list has

grown over the years, to date it has not encompassed either the

income tax or the sales and use tax. The limited and specific scope

of the law enforcement powers conferred by the General Assembly

on Division personnel indicates that they do not have such powers

when they are engaged in the enforcement of other laws

administered by the Comptroller. Cf. 81 Opinions of the Attorney

General 20 (1996) (concluding, under then-existing statutes, that fire

marshal was not “peace officer” who could sign citation, given

limited scope of fire marshal’s enforcement authority).

III

Conclusion

In our opinion, you may assign employees of the Field

Enforcement Division to assist in the administration and

enforcement of the sales and use tax and income tax laws. However,

those employees may exercise the powers of a peace officer only as

to specific laws identified in TG §2-107 and Article 2B, §16-407.

Because the Legislature has not granted employees of the Division
182 [86 Op. Att’y

peace officer powers with respect to enforcement of the sales and

use tax or income tax laws, Division personnel may not exercise

those powers when they are assigned to administer and enforce those

laws.

J. Joseph Curran, Jr.

Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice