Liebhardt v. Department of Revenue
| Decision Date | 19 March 1951 |
| Docket Number | No. 16441,16441 |
| Citation | 123 Colo. 369,229 P.2d 655 |
| Parties | LIEBHARDT v. DEPARTMENT OF REVENUE. |
| Court | Colorado Supreme Court |
Carl J. Sigfrid, Hubert D. Henry, Denver, for plaintiff in error.
John W. Metzger, Atty. Gen., Allen Moore, Deputy Atty. Gen., Vincent Cristiano, Asst. Atty. Gen., Sidney A. Johnson, Asst. Atty. Gen., Duke W. Dunbar, Atty. Gen., Charles M. Soller, Asst. Atty. Gen., for defendant in error.
In accordance with the provisions of the income tax act and specifically, of section 34, chapter 175, page 737, S.L.'37, the director of revenue on May 11, 1949, served upon Fred C. Liebhardt, then the administrator of the estate of Minnie K. Liebhardt, deceased, two 'notices of deficiency' disclosing deficiencies in the income taxes of the deceased for the years 1945 and 1946, respectively, in the sums therein stated. Attached to said notices were statements of the director explaining in detail how the tax was computed and determined.
The only objection made to such claims of tax deficiencies were contained in a letter dated June 13, 1949, written by the administrator to the director stating: 'I have been advised by the attorneys for the estate that these claims cannot be paid, because they are not made in conformity with the laws of the State of Colorado, under which I am administering the estate.'
Thereafter on June 15, 1949, the director caused to be served upon the administrator 'Notice of Final Determination and Assessment and Demand for Payment', wherein the director specifically called the taxpayer's attention to the administrative statutory remedies open to him, and also the penalties which may be imposed by law for failure to make payment within the time specified by the act.
Section 25 of the act provides that the tax determined, as above, by the director, becomes due and payable twenty days after the mailing of such notices of final determination, and that the taxpayer may within thirty days request a hearing or an opportunity to present any additional evidence relating to his tax liability. Section 26 of the act provides for an appeal to the district court within thirty days from the date of mailing of said notice upon the posting of 'a bond for costs in the sum of $100, and for double the amount of the tax assessed.'
The taxpayer in the present case declined to avail himself of his statutory administrative remedies, in that he failed to request a hearing before the director, offer additional evidence concerning his tax liability, post the statutory bond, or appeal to the district court from the determination of the director. Under the statute, the director's decision became final thirty days after notice thereof was mailed to the taxpayer, and it thereupon became no longer subject to judicial review. Section 26, chapter 175, supra; Shotkin v. Perkins, 118 Colo. 584, 199 P.2d 295.
Thereafter, on August 30, 1949, in an effort to collect the tax so finally and conclusively fixed and determined by the director, and in pursuance of section 34 of the act, as amended, the director issued a warrant for distraint directed to an agent of the department of revenue, commanding him to levy upon by distraint and sell so much of the taxpayer's property as might be necessary to satisfy, from the proceeds of such sale, the taxes imposed, together with statutory interest and penalties, and to 'secure judgment and make such filings as may be required by law.'
Specifically, paragraph (c), section 34, of the act, as amended by chapter 114, page 310, § 24, S.L.'43, provides, inter alia, the following method of collecting income taxes:
In accordance with the above paragraph of section 34, the agent to whom the warrant of distraint was directed, filed in the trial court 'Petition for Judgment on Distraint Warrant of Director of Revenue of the State of Colorado.' Pursuant to the prayer of said petition, and in compliance with statutory requirements, the warrant for distraint was thereupon duly recorded August 30, 1949, by the clerk of the trial court as a judgment upon the docket of said court.
Thereafter, October 3, 1949, the administrator filed a motion in the trial court based upon numerous highly technical grounds, to set aside said judgment. The motion was denied, and we are called upon to review the judgment which followed.
It is unnecessary here to consider or discuss the numerous alleged irregularities in the tax proceedings of the department of revenue which occurred, as said, prior to the final determination of the tax. The statute affords the taxpayer a plain, speedy and adequate remedy and full opportunity to be heard as to the quantum of the tax and the alleged irregularities leading up to the fixation of tax liability. Failure to interpose the objections now made in the manner and at the time prescribed by law, and to exhaust the statutory remedies afforded the taxpayer, constitutes a waiver of such objections which cannot now be...
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