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Jazz Casino Co., L.L.C. v. Bridges

Supreme Court of Louisiana

May 3, 2017

JAZZ CASINO COMPANY, L.L.C.
v.
CYNTHIA BRIDGES, SECRETARY, LOUISIANA DEPARTMENT OF REVENUE

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE.

          WEIMER, Justice.

         The 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.[1] 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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).

         In 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 Authority.

         On October 8, 2014, Jazz obtained judgment from the Board, which provided:

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. 47:1621(D)(1)[.]

         This refund judgment was not appealed and is now final. See La. R.S. 47:1434 and 1438.

         Subsequently, 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.

         When 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, which provides:[2]

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.

         On 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. 6/6/16) (unpublished).

         Jazz's 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__.

         DISCUSSION

         The 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.

         Here, 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).

         The legislature has statutorily provided for the payment and collection of taxes pursuant to its constitutional authority. While having the power to tax, [3] 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.

         Utilizing its authority under La. Const. art. XII, § 10(C)[4] 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. 47:1483[5]and 47:1484.[6] Relative to the second and third remedies, the legislature enacted procedures to authorize the return of overpaid taxes without requiring a legislative appropriation.

         When a 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 ...


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