US Fidelity & Guaranty Co. v. STATE, OKLAHOMA TAX COM'N

Decision Date21 May 2002
Docket NumberNo. 93,488.,93,488.
Citation54 P.3d 1010,2002 OK 42
PartiesUNITED STATES FIDELITY & GUARANTY CO., Surety/Appellants, and Sun River Development, Inc., Taxpayer, v. STATE of Oklahoma, ex rel. OKLAHOMA TAX COMMISSION, Appellee.
CourtOklahoma Supreme Court

Evan B. Gatewood, Hayes & Magrini, Oklahoma City, Oklahoma, for appellant.

Thomas E. Kemp, General Counsel, Sean R. McFarland, Assistant General Counsel, Oklahoma Tax Commission, Oklahoma City, Oklahoma, for appellee.


I. Issue

¶ 1 The issue before this Court is whether the order forfeiting a surety bond issued on behalf of the Oklahoma Tax Commission (Tax Commission) is directly appealable to this Court. We answer in the negative and dismiss the appeal.


¶ 2 Upon obtaining a sales tax permit, Sun River Development, Inc. (Sun River) obtained an $18,000 surety bond from United States Fidelity & Guaranty Co. (USF & G). The bond was executed on August 28, 1986, and was in effect at the time this dispute arose.

¶ 3 On August 11, 1988, the Tax Commission sent Sun River two notifications of proposed assessments for $10,300.60 for additional taxes, interest, and penalties. There is nothing in the record showing that Sun River responded to the proposed assessments, see Okla.Stat. tit. 68, § 221(C), (E) (1991), or that USF & G was notified of the proposed assessments. See id. at § 213.

¶ 4 Over ten years later on May 25, 1999, the Tax Commission sent Sun River and USF & G letters notifying them that if the taxes, interest, and penalties of $20,267.60 were not paid within thirty days that the bond would be forfeited. The letter to Sun River was returned as undeliverable. USF & G responded that they viewed the notice as informational only and asked the Tax Commission to contact them if it intended to pursue the matter. The Tax Commission did not respond to this request.

¶ 5 On July 12, 1999, the Tax Commission ordered the surety bond forfeited. Notice was sent to USF & G on July 22, 1999. USF & G requested that the Tax Commission vacate the order and schedule a hearing. At the same time, USF & G filed an appeal "to protect [its] appeal rights".

¶ 6 The Tax Commission filed a motion to dismiss. In response, USF & G filed a dismissal of the appeal. Upon the initial review of the motion to dismiss, this Court denied the motion and, in the same order, denied USF & G's "conditional dismissal". The matter was assigned to the Court of Civil Appeals for disposition on the merits.

¶ 7 The Court of Civil Appeals, finding that it was bound by this Court's order denying the motion to dismiss, held that the Tax Commission's action was barred by the ten-year limitations period of section 223(A) of title 68 of the Oklahoma Statutes. This Court granted certiorari.


¶ 8 In LCR, INC. v. Linwood Properties, 1996 OK 73, ¶ 4, 918 P.2d 1388, this Court defined the parameters for reconsideration of Supreme Court pre-assignment dismissal orders. The extent of re-examination of such an order is subject to its language. Id. A motion to dismiss which is denied "with prejudice to renewal" may not be relitigated in either this Court or the Court of Civil Appeals. Id. at ¶ 5. A motion to dismiss which is denied expressly "without prejudice to renewal" may be re-examined sua sponte in this Court or the Court of Civil Appeals. Id.

¶ 9 If an order denying a motion to dismiss is silent as to its prejudicial effect, it may not be altered by the Court of Civil Appeals. Id. at ¶ 6. If the Court of Civil Appeals deems an order of this Court which is silent as to its renewability in need of reconsideration, it should request the case be recalled. Id. An order which is silent as to its prejudicial effect may be reconsidered by this Court either on certiorari or otherwise. Id. at ¶ 7. This Court's pre-assignment order denying the motion to dismiss is silent with respect to its prejudicial effect. Thus, the Court of Civil Appeals correctly reasoned that it was bound by the order. However, it is subject to reconsideration by this Court.


¶ 10 From a preliminary review of title 68, it would appear that an order of bond forfeiture is directly reviewable by this Court. However, an in-depth review of the applicable statutes necessitates a contrary result making this Court's order denying the motion to dismiss to be in error.

¶ 11 Under the Sales Tax Code, the Tax Commission may require an entity holding a sales tax permit to furnish a surety bond. Okla.Stat. tit. 68, § 1368 (1991). The bond serves as collateral to "protect this state against failure of the taxpayer to pay the tax levied" for sales taxes by the Tax Commission. Id.

¶ 12 Subsection A of section 225 of title 68 of the Oklahoma Statutes provides: "Any taxpayer aggrieved by an order . . . of the Oklahoma Tax Commission directly affecting the taxpayer . . . may appeal therefrom directly to the Supreme Court of Oklahoma." Subsection 202(d)(1) defines "taxpayer" as "[a]ny person owing or liable to pay any state tax." Subsection 202(e) includes a corporation in the definition of "person", and subsection 202(g)(3) includes "insurance companies, including surety and bond companies" in the definition of "corporation". Under these provisions, a surety company may directly appeal to this Court adverse decisions of the Tax Commission when the surety company is liable for taxes which it directly incurs. A review of the tax code shows that this conclusion only applies if the surety company is subject to liability for having incurred the tax liability in the first place, not by virtue of its surety status and not because of the failure of its principal to properly remit taxes.

¶ 13 Under Oklahoma's Uniform Tax Procedure Act, Okla.Stat. tit. 68, §§ 201-263 (1991), a surety may fall within two different classifications: one as a business or corporation who has directly incurred tax liability, and the other as a surety who has incurred a contractual collateral obligation for another's default. Under the first classification, a surety is included within the definition of "taxpayer." The issue then is whether, under the second classification, a surety is a "taxpayer" for purposes of section 225 when it is acting as a surety.

¶ 14 A tax is a pecuniary burden imposed upon a class of individuals, businesses, or other entities for support of government. Black's Law Dictionary 1307 (5th ed.1979). A sales tax is a statutorily imposed burden "on the sale of goods and based on their value." Id. at 1308. A tax liability is incurred by operation of law, not by contract. See id. Because a surety's liability is contractual, it cannot be a tax liability.

¶ 15 Rather, a surety is defined as "one who, at the request of another, and for the purpose of securing to him a benefit,... hypothecates property as security therefor." Okla.Stat. tit. 15, § 371 (1991). Hypothecate means "[t]o pledge property as security or collateral for a debt." Black's Law Dictionary 668 (5th ed.1979). A statutorily-required surety bond is a contract subject to statutory mandates. Lum v. Lee Way Motor Freight, Inc., 1987 OK 112, ¶¶ 16-22, 757 P.2d 810, 815-816. Thus, the liability incurred by a surety is contractual for losses incurred by the principal's failure to properly remit taxes owed to the state; the liability is not a result of a statute imposing a tax. The liability incurred by the surety is not for taxes but a collateral obligation for the principal's failure to perform its statutory obligations. Thus, a surety acting in its capacity as a surety is not a taxpayer for purposes of section 225 of title 68. Even though this distinction is technical, it is the one made by the Legislature in Oklahoma's tax code.

¶ 16 The Oklahoma Legislature has recognized this difference in the manner provided for collection procedures. The collection procedures for taxes is statutorily different than for collection of the surety bond proceeds. When a tax assessment becomes final, the Tax Commission may issue a tax warrant for the collection of taxes. Okla. Stat. tit. 68, § 231 (1991). The tax warrant constitutes a judgment against the taxpayer and a lien upon the taxpayer's property. Id. In the present case, the Tax Commission did not seek recourse against the taxpayer Sun River except for sending notices.

¶ 17 In contrast as a prerequisite to collecting on a surety bond, the Tax Commission issues an order of forfeiture. Unlike a tax warrant, the order of forfeiture is not a final order or judgment. It does not completely dispose of all the issues nor does it prevent judgment against the surety. Gilliland v. Chronic Pain Associates, Inc., 1995 OK 94, ¶¶ 6-7, 904 P.2d 73; see Okla.Stat. tit. 12, § 953 (2002); Okla.Stat. tit. 68, § 225 (2002); Okla.Stat. tit. 75, § 312 (2002)1; Black's Law Dictionary 567, 756 (5th ed.1979). The forfeiture order does not create any liability on the surety's part, the Tax Commission must seek a judgment in the district court in order to effectuate the surety's liability, and the forfeiture order does not conclude the litigation between the Tax Commission and the surety. The forfeiture order is no more than a finding that taxes are owed by the bond's principal and a statement of intent that the Tax Commission intends to proceed on the bond.

¶ 18 If the surety does not pay over the bond proceeds, then the Tax Commission "shall proceed" against the surety in district court. Okla.Stat. tit. 68, § 213 (2002). The Tax Commission's forfeiture order is similar to that addressed in State ex rel. Okla. Dept. of Mines v. Jackson, 1997 OK 149, 950 P.2d 306. The Tax Commission, like the Department of Mines, "is vested with the statutory authority to declare the performance bonds forfeited but lacks power to affect the sureties' liabilities." See 1997 OK 149 at ¶ 13, 950 P.2d 306. This Court stated: "Suit may be brought in the district court either to recover on the...

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