HERBERT G. BLISS
LAFAYETTE PARISH SCHOOL BOARD SALES TAX DIVISION, ET AL.
FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 20175290 HONORABLE EDWARD D. RUBIN, DISTRICT
M. TALBOT RAINER ANDING & TALBOT COUNSEL FOR
DEFENDANT/APPELLEE: LAFAYETTE PARISH SCHOOL BOARD SALES TAX
DIVISION BRENT HEBERT
G. YOUNG MEADE YOUNG, LLC COUNSEL FOR PLAINTIFF/APPELLANT:
HERBERT G. BLISS
composed of John D. Saunders, Phyllis M. Keaty, and Jonathan
W. Perry, Judges.
D. SAUNDERS JUDGE.
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.
AND PROCEDURAL HISTORY:
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.
Lafayette Parish School Board, a political subdivision of
this state authorized to collect local sales and use tax
(Collector), 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.
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.
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.
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.
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.
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
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.
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
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 ...