Johnson v. Louisiana Tax Commission 807 So. 2d 329

JjBAGNERIS, Judge.

The issue on appeal concerns a determination of when a decision of the Louisiana Tax Commission becomes final for prescription purposes. The trial court granted defendant’s peremptory exception of prescription and dismissed the plaintiffs suit. We affirm.

FACTS

The facts are not in dispute. Defendant, Panacon Partnership, is the owner of the Inter-Continental Hotel located at 444 St. Charles Avenue, New Orleans, Louisiana in Orleans Parish. Plaintiff, Patricia A. Johnson, as the assessor of the First Municipal District for the Parish of Orleans (“Assessor”), made an assessment of the value of the Inter Continental property improvements for the 2000 tax year, setting the value at $35,854,000.00. Panacon contested the Assessor’s valuation by filing an appeal with the Board of Review for Orleans Parish. The Board of Review set the fair market value of the property’s improvements at $32,562,733.00. Thereafter, Panacon filed an appeal with the Louisiana Tax Commission (“tax commission”). The tax commission held a hearing on the appeal on December 9, 1999. The tax commission rendered its decision on April 4, 2000 and determined a fair market value of the property to be |2$28,511,400.00. The April 4, 2000, decision was revised on June 6, 2000, to correct the tax commission’s docket number. Neither party filed a request for a rehearing with the tax commission at any time.

On July 17, 2000, the Assessor filed a petition for judicial review of the tax commission’s decision in the Civil District Court for the Parish of New Orleans pursuant to La. R.S. 47:1998. On December 27, 2000, Panacon filed exceptions of res judicata, no right or cause of action, lack of subject matter jurisdiction, and prescription. After a hearing on January 19, 2001, the district court granted Panacon’s exception of prescription and dismissed the Assessor’s suit. The trial court found it unnecessary to address Panacon’s other exceptions due to its ruling that the petition was untimely. The Assessor now appeals this final judgment.

*331 ASSIGNMENT OF ERROR

The Assessor alleges that the trial court erred as a matter of law in dismissing as prescribed a petition for judicial review filed on the first working day after the thirtieth calendar day after the tenth day rehearing period expired.

STANDARD OF REVIEW

Appellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct. Sander v. Brousseau, 2000-0098 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 711 citing Phoenix Assur. Co. of New York v. Shell Oil Co., 611 So.2d 709 (La.App. 4 Cir.1992).

DISCUSSION

Before addressing the Assessor’s argument that the petition was timely filed, we feel compelled to address the Exception of No Right of Action that the defendants filed in the trial court on December 27, 2000. An Exception of No Right of Action is an appropriate procedural pleading to raise the question of | awhether the Assessor, in her official capacity only, has standing to seek judicial review of the Louisiana Tax Commission decision. Greenbriar Nursing Home, Inc. v. Pilley, 93-2059 (La.5/23/94), 637 So.2d 429, 434. Further, the exception of no right of action is peremptory and can be brought at any stage “of the proceeding in the trial court prior to a submission of the case for a decision or for the first time in the appellate court if pleaded prior to a submission of the case for a decision if proof of the ground of the exception appears of record and even may be noticed by either the trial or appellate court of its own motion.” Lambert v. Donald G. Lam-ben Const. Co., 370 So.2d 1254, 1255 (La. 1979).

La. R.S. 47:1998 provides for Judicial Review of Tax Commission decisions. Specifically, La. R.S. 47:1998 A(l)(a) provides in part:

Any taxpayer or bona fide representative of an affected tax — recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1989 shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court.

(Emphasis added)

According to the statute, only a “taxpayer” or “representative of an affected tax recipient body” has the right to petition for judicial review. However, the Assessor, because she has filed suit in her official capacity only and not individually, is neither a taxpayer nor a representative of the tax recipient body. The representatives of the tax recipient body include the Director of Finance of the City of New Orleans, the Mayor and the City. Accordingly, we agree with the defendant that the City, not the Assessor in her official capacity, is the proper party to file a petition for judicial review from the Louisiana Tax Commission. Nonetheless, because our jurisprudence favors appeals, we feel it is necessary to address the Assessor’s argument on Rwhether her petition filed in the district court was timely. See Turner v. Department of Health and Hospitals, 561 So.2d 721 (La.1990).

The Assessor alleges that the petition was timely filed if La. R.S. 47:1998 A(l)(a) provides a ten-day rehearing period followed by a thirty-day appeal period. Specifically, she argues that “the statutory amendment is self-contradictory because it requires the time clock to start running upon ‘the entry of a final decision,’ yet no decision becomes final until ten days after its entry.” Thus, she alleges that the tax commission decision mailed on June 6, 2000, would not become “appealable” until June 16, 2000, and that the thirty-day ap*332peal period commencing on June 16, 2000, would have expired on Monday, July 17, 2000, the day the petition was filed in Civil District Court. We find no merit to this argument.

The procedure for appealing decisions of the tax commission to the district court is provided for in La. R.S. 47:1998. Specifically, La. R.S. 47:1998A(l)(a) as amended by Louisiana Acts, No. 74, § 1, of the 1st Ex. Session of 2000, effective April 17, 2000,1 provides in pertinent part:

Any taxpayer or bona fide representative of an affected tax-recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1989, shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment. (Emphasis added)

| sAlthough the statute authorizes a taxpayer who is dissatisfied with a decision of the tax commission to appeal to the district court within thirty days of the entry of the tax commission’s final decision, the statute does not specify exactly when such decisions are considered final. Thus, in order to determine whether the Assessor’s petition was timely, we must look to other statutory provisions.

The procedure for appealing decisions of the board of review to the tax commission is provided for in La. R.S. 47:1989. This statute provides, “[a]ll decisions by the tax commission are final unless appealed to the district court within thirty days.” La. R.S. 47:1989 D(l). Although this provision addresses the issue of the finality of a decision of the tax commission, it cannot refer to the type of finality contemplated by La. R.S. 47:1998 A(l)(a) because 47:1998A(l)(a) requires a decision be final before it may be appealed to the district court.

Also applicable to this matter is La. R.S. 47:1989 C which provides that the tax commission “hearings , shall be conducted in accordance with rules and regulations established by the tax commission.” Specifically, the rules and regulations established by the tax commission are found in the Louisiana Administrative Code, Title 61, Part V, Rule 3103, which govern appeals to the tax commission and the procedures that must be followed.

Paragraph Q of Rule 3103 authorizes the tax commission, at its discretion, to “grant the request of a taxpayer or assessor for rehearing; provided the rehearing request is made in accordance with the Administrative Procedure Act” (“APA”).2 | ^Pursuant to the APA, an agency decision in an adjudication proceeding is “subject to rehearing, reopening, or reconsideration by the agency, within ten days from the date of its entry.” La. R.S. 49:959 A. The *333APA also provides for the measuring of the time for judicial review where a rehearing is sought. La. R.S. 49:959 B provides in pertinent part, “[i]f an application for rehearing shall be timely filed, the period within which judicial review, under the applicable statute, must be sought, shall run from the final disposition of such application.” (Emphasis added).

The First Circuit recently addressed the issue of when a tax commission’s decision is final in EOP Neiv Orleans, L.L.C. v. Louisiana Tax Com’n, 2001-1452 (La.App. 1 Cir. 9/28/01), 809 So.2d 387. In EOP, the tax commission mailed a copy of its decision to appellant, EOP, on May 30, 2000. On June 1, 2000, EOP filed a petition for judicial review of the tax commission’s decision pursuant to La. R.S. 47:1998 and 47:2110. Thereafter, the ap-pellee, the Assessor, filed an exception of prematurity. After a hearing, the district court granted the Assessor’s exception of prematurity and dismissed EOP’s suit. However, the appellate court reversed the trial court and found that “[pjursuant to La. R.S. 47:1998 A(l)(a), the delay for applying for judicial review in this matter began to run on May 30, 2000, the date on which the notice of the final decision of the tax commission was mailed” and that EOP “had thirty days from that date to file a petition for judicial review .... absent a timely filed request for rehearing.”

In its well-reasoned opinion, the court in EOP determined the following in regard to when a decision of the tax commission is final:

Pursuant to the provisions of La. R.S. 49:959 A and La. R.S. 47:1998 A(l)(a), the ten-day rehearing period and the thirty-day [ 7appeal period overlap. The thirty-day period begins to run from the date of entry of the final decision, not from the date of expiration of the time for rehearing. There is apparently no mechanism for an entry of the final decision after the period for requesting a rehearing has expired without such a request having been filed. If a party requests a rehearing timely, then the period for filing an appeal runs from the date of the decision on the rehearing. If, as the Assessor suggests, the law required the rehearing delays to pass before a decision may be final, a party wishing to appeal would in effect have only twenty days to file for judicial review, without allowing any time between the entry of the decision and its receipt by the taxpayer. On the other hand, the taxpayer would have thirty days after a ruling on rehearing to file such a petition. There can be no reason for the difference. We are unable to discern a legislative intent to limit a party’s right to apply for judicial review in that manner.

We agree with this reasoning and find that the thirty-day period begins to run from the date of entry of the final decision, not from the date of expiration of the time for rehearing.3 In this case, the tax commission decision was signed on June 6, 2000. Thus, pursuant to La. R.S. 47:1998 A(l)(a), the time for applying for judicial review in this matter began to run on June 6, 2000. A taxpayer or the bona fide representative of an affected tax recipient body had thirty days from that date to file *334a petition for judicial review of the tax commission’s decision absent a timely filed request for rehearing. No request for rehearing was filed. Accordingly, any petition for judicial review filed on July 17, 2000, is untimely and thus has prescribed.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

TOBIAS, J., concurs.

hTOBIAS, J.,

concurring.

I respectfully concur in the result.

La. R.S. 49:959A, part of the Administrative Procedure Act, states that “[a] decision or order in a case of adjudication shall be subject to rehearing, reopening, or reconsideration by the agency, within ten days from the date of its entry.” La. R.S. 49:967A, in pertinent part, states that: “Chapter 13 of Title 49 of the Louisiana Revised Statutes of 1950 [, the Administrative Procedure Act,] shall not be applicable to the Board of Tax Appeals, the Department of Revenue, with the exception of the Louisiana Tax Commission that shall continue to be governed by this Chapter in its entirety.... ” Thus, a party to a proceeding before the Louisiana Tax Commission has the right to request a rehearing of a decision of the Louisiana Tax Commission, provided that the request is made within ten days of the decision.

La. R.S. 47:1989D(1), was enacted by Acts 2000, 1st Ex. Sess., No. 74, and states that “All decisions by the tax commission are final unless appealed to the district court within thirty days.” La. R.S. 47:1989D(2), relative to the appeal of a Louisiana Tax Commission decision filed in the district court, prohibits an application for new trial or rehearing in the district court. La. R.S. 47:1998A(l)(a), indicates that one must “institute suit [i.e., appeal] within thirty days of the entry of Lany final decision of the Louisiana Tax Commission in the district court.” Acts 2000, 1st Ex. Sess., No. 74, added the word “final” to La. R.S. 47:1998A(l)(a).

La. R.S. 47:1989D(1) and La. R.S. 47:1998A(1)(a), as enacted and/or amended by Acts 2000, may manifest an intent by the legislature to supersede in part the provisions of La. R.S. 49:959A. One way to reconcile the conflict is to hold as the majority does in this case and our brethren on the First Circuit Court of Appeal did in EOP New Orleans, L.L.C. v. Louisiana Tax Commission, 2001-1452 (La.App. 1 Cir. 9/28/01), 809 So.2d 387. Another way, as advocated by the plaintiff-appellant, would be to hold that the thirty day period commences to run on the day following the deadline for applying for a rehearing pursuant to La. R.S. 49:959A if no rehearing is filed.

Although, I personally might be inclined to agree with the plaintiff-appellant that the addition of the word “final” to La. R.S. 47:1998A(l)(a) was intended to make it clear that the thirty day period commenced to run on the day following the deadline for filing an application for rehearing, much as the time delay for filing an appeal with a court of appeal commences to run only when the time delay for applying for a new trial lapses, I cannot say that harmonizing the law between circuits, i.e., following EOP, supra, is not warranted.

I do not, however, agree with the majority that the trial court was correct in sustaining the defendant-appellee’s exception of prescription. Obviously, the prescription which the defendant-appellee pled and the court sustained was intended to be liberative prescription. Liberative prescription is a “mode of barring of actions as result of inaction for a period of time.” La. C.C. art. 3447. But prescription is subject to interruption. See La. C.C. arts. 3462, et seq. An exception of prescription cannot be raised by a court on its own *335motion; it must be specifically plead by a party. La. C.C.P. art. 927B. The thrust of defendant-|appellee’s3 exception of prescription is that the plaintiff-appellant filed suit in the Civil District Court after the time delays for filing same had lapsed under La. R.S. 47:1998. Thus, their exception is actually a motion to dismiss an appeal as untimely, and, therefore, the court is without jurisdiction to hear the matter. Since prescription can be interrupted, suspended, or even manipulated by the action of the parties, I do not find that the legislature ever intended to permit parties to extend for any reason the thirty day delay of La. R.S. 47:1998A(l)(a). I would therefore reverse the trial court’s sustaining of the exception of prescription. I would, however, affirm the decision of the trial court on the basis that the plaintiff-appellant filed suit untimely and thus the district court was without jurisdiction to entertain same.