470 A.2d 751 (D.C. 1983), 82-1297, Peoples Drug Stores, Inc. v. District of Columbia

Docket Nº:82-1297.
Citation:470 A.2d 751
Party Name:PEOPLES DRUG STORES, INCORPORATED, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
Case Date:December 15, 1983
Court:Court of Appeals of Columbia District
 
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Page 751

470 A.2d 751 (D.C. 1983)

PEOPLES DRUG STORES, INCORPORATED, Appellant,

v.

DISTRICT OF COLUMBIA, Appellee.

No. 82-1297.

Court of Appeals of Columbia District

December 15, 1983

Argued En Banc Nov. 3, 1983.

Page 752

James Robertson, Washington, D.C., with whom F. David Lake, Jr., Washington, D.C., and Helen Torelli, Washington, D.C., were on brief, for appellant.

Richard G. Amato, Assistant Corp. Counsel, with whom Judith W. Rogers, Corp. Counsel, at time brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Richard L. Aguglia, Asst. Corp. Counsel, Washington, D.C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and KERN, NEBEKER, MACK, FERREN, PRYOR and TERRY, Associate Judges.

FERREN, Associate Judge:

The trial court dismissed appellant's petition challenging a District of Columbia use tax assessment, concluding that the court lacked jurisdiction because the petition was not timely filed pursuant to D.C.Code § 47-2403 (1973). [1] A division of this court, in an unpublished memorandum opinion and judgment issued July 19, 1983, concluded that it was "constrained to affirm the trial court's dismissal" in light of the interpretation given § 47-2403 in Donahue v. District of Columbia, 368 A.2d 1147 (D.C.1977) (per curiam). [2] Upon consideration by the full court, we now overrule Donahue (except to the extent necessary to address the particular facts of that case) and reverse the trial court's order dismissing appellant's petition.

I.

On August 18, 1977, appellee District of Columbia mailed to appellant taxpayer a Notice of D.C. Tax Due. The notice included a use tax assessment of $50,309.33, plus interest, for advertising supplements paid for by taxpayer and distributed in the District of Columbia. Taxpayer paid the tax

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on September 14, 1977, but filed a petition for refund in the Tax Division of Superior Court on March 14, 1978.

The only issue in this case is whether taxpayer's petition was timely filed. The District of Columbia concedes that, under Sears, Roebuck and Co. v. District of Columbia, Tax Div. Docket No. 2463 (D.C.Super.Ct. May 13, 1981), the use tax paid by taxpayer with respect to advertising supplements was assessed in error; thus, if taxpayer's petition was timely filed, taxpayer is entitled to a refund. The District maintains, however, that pursuant to D.C.Code § 47-2403 (1973), an appeal from an assessment must be taken within six months of the assessment, and thus taxpayer's petition--filed nearly seven months after the assessment--was untimely. Taxpayer argues, to the contrary, that the plain wording of § 47-2403 permits appeals "within six months after payment of the tax," and that its petition, filed exactly six months after payment, complied with this statutory requirement.

We agree with the earlier memorandum opinion and judgment of the division in this case that, if Donahue, supra, is good law, it controls this case and the District of Columbia must prevail. Although the factual scenario in Donahue can be distinguished from the facts here, [3] the Donahue holding clearly purports to extend to cases such as the one now before the court:

We previously suggested, and now hold, "that the period for all appeals under § 47-2403 runs from the mailing of the assessment, the clause 'after payment ...' to be read as 'provided payment has been made.' "

368 A.2d at 1148 (emphasis in original) (quoting National Graduate University v. District of Columbia, 346 A.2d 740, 743 n. 7 (D.C.1975)). Moreover, the Donahue court expressly "reject[ed] [the] argument that the six-month period for filing an appeal does not commence until after payment of the tax." Id.

II.

In reviewing this court's interpretation of § 47-2403 in Donahue, "[w]e must first look at the language of the statute by itself to see if the language is plain and admits of no more than one meaning." Davis v. United States, 397 A.2d 951, 956 (D.C.1979). "The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used." Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 64 (D.C.1980) (en banc) (quoting United States v. Goldenberg, 168 U.S. 95, 102-03, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897)). Moreover, in examining the statutory language, it is...

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