Cardinal Glennon Memorial Hospital Coffee Shop v. Director of Revenue, s. WD

• Decision Date: 15 September 1981
• Docket Number: Nos. WD,s. WD
• Citation: Cardinal Glennon Memorial Hospital Coffee Shop v. Director of Revenue, 624 S.W.2d 115 (Mo. App. 1981)
• Parties: CARDINAL GLENNON MEMORIAL HOSPITAL COFFEE SHOP, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. MACKE VENDALL COMPANY, Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent. 32098, WD 32106.
• Court: Missouri Court of Appeals

Page 115

624 S.W.2d 115

CARDINAL GLENNON MEMORIAL HOSPITAL COFFEE SHOP, Appellant, v.DIRECTOR OF REVENUE, State of Missouri, Respondent.

MACKE VENDALL COMPANY, Appellant, v.DIRECTOR OF REVENUE, State of Missouri, Respondent.

Nos. WD 32098, WD 32106.

Missouri Court of Appeals, Western District.

Sept. 15, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 20, 1981.

Application to Transfer Denied Dec. 14, 1981.

Timothy Kevin Kellett, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P. J., SOMERVILLE, C. J., and SHANGLER, J.

SHANGLER, Judge.

This appeal consolidates the orders by the Administrative Hearing Commission to dismiss the separate petitions for administrative review of the tax assessments entered by the Director of Revenue against Taxpayers Cardinal Glennon Memorial Hospital Coffee Shop and Macke Vendall Company.The orders of dismissal rest on the neglect to file the petitions for review with the Administrative Hearing Commission within thirty days of decision of the Director of Revenue as required by § 161.273, RSMo 1978.

The record discloses this coincident chronology and career for the separate petitions brought by the Cardinal Glennon Coffee Shop and the Vendall Company for administrative review of the agency tax assessments:

February 8, 1979, the Director of Revenue assessed each taxpayer for unpaid taxes and mailed the assessment to each taxpayer on that date.

March 7, 1979, each taxpayer forwarded a petition for review(reassessment) to the Administrative Hearing Commission from a Maryland office by certified mail.

March 12, 1979, the petitions for review(reassessment) were delivered by the postal authority to the State Hearing Commission and marked filed on that date.

August 29, 1979, the Administrative Hearing Commission entered orders, on the motions of the Director of Revenue, to dismiss each petition for review as untimely filed.

September 25, 1979, the Administrative Hearing Commission sustained the motion of the taxpayers for rehearing and rescinded the orders of dismissal.

August 8, 1980, upon the stipulated evidence, briefs and arguments of the litigants, the Administrative Hearing Commission"affirmed" the original order of dismissal on the determination that the failure to file the petitions for review within the time prescription of § 161.273 deprived the Commission of jurisdiction over the subject matter of the petitions for review.

The jurisdiction of the Administrative Hearing Commission to adjudicate and to review derives from §§ 161.252 through 161.350.A party to the dispute has resort to the Administrative Hearing Commission for the review of an assessment by the Director of Revenue according to the method defined in § 161.273:

(A)ny person or entity shall have the right to appeal to the administrative hearing commission from any finding, order, decision, assessment or additional assessment made by the director of revenue ... by the filing of a petition with the administrative hearing commission within thirty days after the mailing or delivery of a decision of the director of revenue with respect to such dispute.(emphasis added)

The authority to review under § 161.273 reposes on a jurisdiction lawfully invoked within thirty days after the dispatch by mail or other delivery of the revenue decision.The appeal poses the mode the law contemplates to compute the statutory time for the administrative appeal.

The question arises at all because the thirty-day period (as the Administrative Hearing Commission determined) commenced on February 8, 1979, and ended on March 10, 1979, a Saturday.There was evidence that the taxpayers posted the petitions for reassessment to the Commission on March 7, 1979, by certified mail from the Maryland office.The usual course of postal business delivers a letter from Maryland to Jefferson City, Missouri within three days-in this case, March 10, 1979.The office of the Commission was not open for business on a Saturday, however, and-conformably to that practice of state offices-the United States Post Office delivered no mail (certified post included) to any such addressee on a Saturday.That practice was current throughout year 1979.The petitions for reassessment parcels were delivered to the Commission on Monday, March 12, 1979, and on that date were formally filed by that office-by absolute computation, two days beyond the statutory appeal period.

The measurement of time for performance under a rule of procedure or a statute is governed by the several methods of Rule 20.01,¹Rule 44.01and§ 1.040.The computation measure of each rule of procedure excludes Saturday, Sunday and legal holidays from the count of a prescribed period when the last time to perform falls on any of those days.The taxpayers invoke the effect of Rule 44.01 to exclude March 10, 1979-a Saturday-and the proximate Sunday from the count of days so as to constitute Monday, March 12, the thirtieth day for a timely administrative appeal under § 161.273.That rule, however, applies to civil actions in judicial courts(Rule 41.01) and so by the very terms of promulgation does not affect proceedings still administrative.The cases cited by the taxpayers to support contention that Rule 44.01 applies to count the time for appeal under § 161.273 involve not filings for administrative review but filings for judicial review (to the circuit court).²Those very citations lend no authority to the argument of the taxpayers, but reaffirm, rather, that Rule 44.01 does not apply at all to administrative proceedings.R.B. Industries, Inc. v. Goldberg, 601 S.W.2d 5, 6(Mo. banc 1980).The neglect to comply with the statutory time for an appeal from an agency decision-whether to another administrative body or to the circuit court-results in lapse of jurisdiction and right of appeal.Randles v. Schaffner, 485 S.W.2d 1, 2(5, 6)(Mo.1972).

Goldberg, supra, dispels another contention.The taxpayers argue that § 161.273 entitles a party to the dispute before the Director of Revenue an appeal to the Administrative Hearing Commission by a petition filed "within thirty days after the mailing or delivery" of the agency decision.³(emphasis added)The argument, we assume, intends the point that counted from the time of mail delivery rather than mail dispatch, the lodgement of the petitions for reassessment with the Administrative Hearing Commission Monday, March 12, 1979, accomplished an appeal within thirty days and so entitled the taxpayers to review.There was, however, no evidence as to when the Director of Revenue notice of decision was...