JAZZ CASINO COMPANY, L.L.C.
CYNTHIA BRIDGES, SECRETARY, LOUISIANA DEPARTMENT OF REVENUE
OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH
OF EAST BATON ROUGE.
taxpayer in this matter seeks to compel the tax collector to
perform statutory duties in connection with a judgment in a
proceeding under La. R.S. 47:1621, et seq., that
ordered a refund of hotel occupancy taxes overpaid by the
taxpayer in several tax years. Finding that these statutory
duties are ministerial, the district court issued a writ of
mandamus to the tax collector to compel payment of the tax
refund judgment. The court of appeal reversed and recalled
the writ due to the lack of evidence needed to obtain a writ
of mandamus. Based on the ministerial nature of the
constitutional and statutory duties owed by the tax collector
in connection with the taxpayer's refund judgment, the
decision of the appellate court is reversed, and the district
court's judgment is reinstated.
AND PROCEDURAL BACKGROUND
connection with its operation of a land-based casino in New
Orleans, Jazz Casino Company, L.L.C. (Jazz) entered into
contracts with various hotels for rooms made available to
casino patrons on a complimentary or discounted basis. Jazz
was required to pay for a specific number of rooms for the
duration of the contract even if the rooms were not used by
Jazz patrons. As a result of these hotel room rentals, hotel
occupancy taxes were remitted to the Louisiana Department of
Revenue (Department). The taxes consisted of state general
sales taxes and sales tax collected on behalf of the
following three entities: Louisiana Tourism Promotion
District (Tourism District), the Louisiana Stadium and
Exposition District (Stadium District), and the New Orleans
Exhibition Hall Authority (Hall Authority).
August 2004, Jazz filed three claims for refund with the
Department, alleging that Jazz overpaid hotel occupancy taxes
for various hotel room rentals between October 1, 1999, and
June 30, 2004. Following the denial of its claims by the
Department, Jazz filed suit with the Louisiana Board of Tax
Appeals (Board), seeking a determination of overpaid taxes in
accordance with La. R.S. 47:1621. Under the terms of
Jazz's contracts with the local hotels, the rental of the
hotel rooms by Jazz was not found to be as a "transient
guest." As a consequence of that finding, Jazz was
exempt from the tax at issue. Subsequently, the parties
jointly stipulated that Jazz's tax overpayments totaled
$1, 983, 315.27 for the periods in question. Of these
overpayments, two percent was state general sales taxes. The
remaining 98 percent was collected by the Department on
behalf the Tourism District, Stadium District, and Hall
October 8, 2014, Jazz obtained judgment from the Board, which
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that [Jazz]
overpaid hotel occupancy taxes during the Taxable Period in
the total amount, exclusive of interest, of $1, 983, 315.27;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
Department shall refund to [Jazz] $1, 983, 315.27, together
with applicable statutory interest, pursuant to LSA-R.S.
refund judgment was not appealed and is now final.
See La. R.S. 47:1434 and 1438.
the Department remitted the portions of the judgment related
to state general sales taxes and the taxes collected on
behalf of the Tourism District. Therefore, only the taxes
collected on behalf of the Stadium District and Hall
Authority remain at issue.
the Department failed to timely refund the amounts overpaid
to the Stadium and Hall Authority in accordance with La. R.S.
47:1621, et seq., Jazz filed a petition for a writ
of mandamus with the district court to compel satisfaction of
the refund judgment. In its petition, Jazz alleged that the
refund of the overpaid taxes is a statutorily-mandated duty
enforceable by the judiciary (citing La. R.S. 47:1437(B) and
47:1621(D)(3)). Agreeing, the district court granted
Jazz's request by judgment dated September 24, 2015,
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the
Alternative Writ of Mandamus issued by the Court on August
31, 2015 is made peremptory and permanent directing …
Secretary of the Department of Revenue, State of Louisiana to
comply with the Judgment issued by the Louisiana Board of Tax
Appeals on October 8, 2014 and remit all remaining amounts
that have not yet refunded, $1, 613, 851.85, along with
applicable statutory interest, within thirty-five days of
entry of this Judgment.
appeal, the mandamus judgment was reversed and the writ of
mandamus was recalled, based on a finding that Jazz had
failed to prove it was unable to obtain relief by ordinary
means or that the delay in obtaining such relief would cause
injustice as required by La. C.C.P. art. 3862. In the absence
of such proof, the appellate court found that Jazz failed to
show it was entitled to mandamus relief, even if the duty of
the Department's Secretary (Secretary) to refund overpaid
taxes is a non-discretionary, ministerial duty. Jazz
Casino Co. v. Bridges, L.L.C., 15-1721 (La.App. 1 Cir.
writ application to this court was granted to determine
whether Jazz is entitled to mandamus relief under the facts
of this case. Jazz Casino Co. v. Bridges, L.L.C.,
16-1663 (La. 1/9/17), __So.3d__.
state constitution divides governmental power among separate
legislative, executive, and judicial branches and provides
that no one branch shall exercise powers belonging to the
others. Hoag v. State, 04-0857, p. 4 (La. 12/1/04),
889 So.2d 1019, 1022 (citing La. Const., art. II,
§§ 1 and 2). "This trichotomous branching of
authority furnishes the basis for the existence of an
inherent judicial power that the legislative and executive
branches cannot abridge." Id. "Likewise,
the judicial branch is prohibited from infringing upon the
inherent powers of the legislative and executive
branches." Id. Thus, when litigants seek to
invoke the power of the judiciary to compel another branch of
government to perform or act, care must be taken in examining
whether the action is within the confines of the
judiciary's constitutional authority. Id.
Jazz sought the issuance of a writ of mandamus by the
judiciary to compel the Secretary, who is within the
executive branch of government, to refund the amounts Jazz
had overpaid in hotel occupancy taxes to the Stadium District
and Hall Authority as ordered in the refund judgment.
"Mandamus is a writ directing a public officer …
to perform" "a ministerial duty required by
law." La. C.C.P. arts. 3861 and 3863. In general terms,
a writ of mandamus is an extraordinary remedy and "may
be issued in all cases where the law provides no relief by
ordinary means or where delay in obtaining ordinary relief
may cause injustice." La. C.C.P. art. 3862. A
"ministerial duty" is one "in which no element
of discretion is left to the public officer, " in other
words, "a simple, definite duty, arising under
conditions admitted or proved to exist, and imposed by
law." Hoag, 04-0857 at 7, 889 So.2d at 1024. If
a public officer is vested with any element of discretion,
mandamus will not lie. See, e.g., Landry v. City
of Erath, 628 So.2d 1178, 1180 (La.App. 3 Cir. 1993).
legislature has statutorily provided for the payment and
collection of taxes pursuant to its constitutional authority.
While having the power to tax,  the legislature must
"provide a complete and adequate remedy for the prompt
recovery of an illegal tax paid by a taxpayer."
See La. Const. art. VII, § 3(A). In connection
with this constitutional obligation, the legislature created
the Board of Tax Appeals to "act as an appeal board to
hear and decide ... disputes ... between a taxpayer and the
collector of revenue." La. R.S. 47:1401.
its authority under La. Const. art. XII, §
10(C) to "provide a procedure for suits
against the state, a state agency, or a political subdivision
and provide for the effect of a judgment, " the
legislature has afforded taxpayers the following three
remedies to fulfill its obligation under La. Const. art. VII,
§ 3(A): (1) the "Claims Against the State"
procedure, (2) the "Payment Under Protest"
procedure, and (3) the "Overpayment Refund"
procedure. St. Martin v. State, 09-0935, p. 4 (La.
12/1/09), 25 So.3d 736, 738. The procedures for these three
remedies are set forth in La. R.S. 47:1481, et seq.;
La. R.S. 47:1576, et seq.; and La. R.S. 47:1621,
et seq., respectively. St. Martin, 09-0935
at p. 4, 25 So.3d at 738. Only the provisions related to the
first of these remedies, that is, the claims against the
state procedure, expressly requires an appropriation of funds
by the legislature. See La. R.S.
47:1483and 47:1484. Relative to the second and third
remedies, the legislature enacted procedures to authorize the
return of overpaid taxes without requiring a legislative
taxpayer utilizes the payment under protest procedure (the
second remedy), the contested amount is to be escrowed
"pending the outcome of the suit, the petition, or an
appeal therefrom." See La. R.S. 47:1576(A)(2).
In that type of proceeding, payment to a prevailing taxpayer
is governed by La. R.S. 47:1576(A)(3), in which the
legislature mandates that the refund of the taxpayer's
money being held by the Secretary be made ...