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Bliss v. Lafayette Parish School Board Sales Tax Division

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

HERBERT G. BLISS
v.
LAFAYETTE PARISH SCHOOL BOARD SALES TAX DIVISION, ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20175290 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE.

          DREW M. TALBOT RAINER ANDING & TALBOT COUNSEL FOR DEFENDANT/APPELLEE: LAFAYETTE PARISH SCHOOL BOARD SALES TAX DIVISION BRENT HEBERT

          ADAM G. YOUNG MEADE YOUNG, LLC COUNSEL FOR PLAINTIFF/APPELLANT: HERBERT G. BLISS

          Court composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.

          JOHN D. SAUNDERS JUDGE.

         This is a tax collection case. Tax collector followed the procedure outlined in La.R.S. 47:337.51 and issued a notice of assessment to Taxpayer. Taxpayer attempted to challenge the assessment by filing a declaratory judgment suit in the trial court without first paying the amount assessed under protest. The trial court found that this challenge was not allowed under La.R.S. 47:337.51, as the assessment was final. Taxpayer has appealed.

         FACTUAL AND PROCEDURAL HISTORY:

         During all relevant periods at issue, Herbert Bliss operated as a sole proprietorship doing business under the trade name, "Cork's Automotive" (Taxpayer). Taxpayer makes repairs to automobiles for his customers in Lafayette Parish. Repairs to articles of tangible personal property, such as automobiles, are one of the specifically enumerated services subject to state and local taxes. As such, Taxpayer is a "dealer" required to charge, collect, and remit Lafayette Parish sales taxes to Collector on taxable sales made by him.

         The Lafayette Parish School Board, a political subdivision of this state authorized to collect local sales and use tax (Collector)[1], conducted a sales and use tax compliance audit of Taxpayer for the tax period beginning January 1, 2014 continuing through December 31, 2016. As part of the Collector's audit, Collector reviewed certain sales records in Taxpayer's possession, care, custody and control. The audit revealed a substantial sales and/or use deficiency. Collector, in conformity with La.R.S. 47:337.48(B), issued to Taxpayer a thirty-day Notice of Intent to Assess.

         In response to the Notice of Intent to Assess, Taxpayer requested a hearing pursuant to La.R.S. 47:337.49, to raise any factual or legal objections to the assessment. Taxpayer's protest alleged that certain taxable repair transactions were, in fact, transactions related to work covered under a warranty, and thus, not taxable.

         On August 2, 2017, pursuant to a previous scheduling agreement, Taxpayer's protest hearing was held at Taxpayer's counsel's office; Collector's auditor, Brent Hebert (Mr. Hebert), appeared in person on behalf of Collector; and Taxpayer's counsel advised Mr. Hebert that supplemental information regarding the underlying substantive tax would be provided "in the next 5 business days." Thereafter, Collector twice extended Taxpayer's deadline to produce the supplemental sales records.

         On August 17, 2017, after receipt and review of the additional records provided by Taxpayer, Collector made its final determination and issued a "Notice of Assessment and Right to Appeal" to Taxpayer notifying Taxpayer that "he has thirty calendar days from the date of the notice to do any of the following: (a) Pay the amount of the assessment; (b) Appeal to the Board of Tax Appeals for redetermination of the assessment; or (c) Pay under protest in accordance with La.R.S. 47:337.63, and then either file suit or file a petition with the Board of Tax Appeals, all as provided for in that Section." The Assessment was received by Taxpayer.

         On September 14, 2017, in response to Collector's Notice of Assessment, Taxpayer filed suit in the Fifteenth Judicial District Court, Parish of Lafayette, seeking a judgment declaring that the Assessment is "null and void." Alternatively, Taxpayer's suit seeks a declaration that the Assessment is inaccurate and improperly calculated. Taxpayer's suit also seeks a money judgment for alleged "damages" against Collector's auditor, Brent Hebert (Mr. Hebert), personally.

         Collector responded to Taxpayer's Petition by filing the Peremptory Exceptions of Peremption, No Cause of Action and No Right of Action, and the Declinatory Exception of Lack of Jurisdiction over the Subject Matter (collectively referred to hereafter as the "Exceptions"). Mr. Hebert responded to the Petition by filing the Peremptory Exception of No Cause of Action.

         The trial court heard and sustained Collector's Exceptions and dismissed Taxpayer's Petition with prejudice. As part of the trial court's analysis and based upon the representations and arguments of Taxpayer, the trial court found that there was no possible way for Taxpayer to cure any pleading defects given Taxpayer's admission that he did not respond to the Assessment within thirty calendar days to protest or appeal the Assessment in any of the manners specifically enumerated by law. Similarly, based upon its reasoning and rationale for granting Collector's Exceptions, the trial court also granted Mr. Hebert's Peremptory Exception of No Cause of Action and dismissed Taxpayer's Petition, with prejudice, as to Taxpayer's claims made against him personally.

         The trial court signed a judgment in accordance with its ruling granting Collector's Exceptions. In response to the judgment, Taxpayer filed a Motion requesting a New Trial. Taxpayer's Motion was set for hearing, and the trial court heard Taxpayer re-argue his previously rejected arguments. Thereafter, the trial court denied Taxpayer's Motion for New Trial and rendered judgment accordingly. Taxpayer appeals this judgment, alleging four assignments of error.

         ASSIGNMENTS OF ERROR

1. The trial court erred in finding the Plaintiff failed to state a cause of action for declaratory judgment because the Plaintiff did not allege he paid assessed taxes in protest before filing suit for a declaratory judgment on the validity of the assessment itself.
2. The trial court erred in finding the Petition failed to state facts supporting an exception to the qualified immunity provisions of La.R.S. 9:2798.1.
3. The trial court erred [sic] applying the incorrect legal standards to the exception ...

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