Mitchell v. State

• Citation: 351 So.2d 599
• Parties: George J. MITCHELL v. STATE of Alabama. Civ. 1203.
• Decision Date: 26 October 1977
• Court: Alabama Court of Civil Appeals

Page 599

351 So.2d 599

George J. MITCHELL v. STATE of Alabama.

Civ. 1203.

Court of Civil Appeals of Alabama.

Oct. 26, 1977.

B. Pratt Gasque, Jr., Mobile, for appellant.

William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept. of Revenue, Asst. Atty. Gen., Bill Thompson, Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for appellee, State of Ala.

WRIGHT, Presiding Judge.

Taxpayer appeals from an order by the Mobile County Circuit Court dismissing his appeal to that court of a final assessment for sales taxes. We affirm.

The Alabama Department of Revenue made an assessment against Taxpayer for sales taxes due of $1,600, plus $400 penalty and $60 interest. Taxpayer protested. The protest was denied. Final assessment was made on January 28, 1977, in the amount of $2,068. Pursuant to Tit. 51, § 140 of the Code of Alabama (1940) (Recomp.1958) and Tit. 51, § 786(17)(a), Code of Alabama (1940) (Recomp.1958) (Supp.1973), Taxpayer filed a timely notice of appeal with the Register of the Circuit Court. He mailed a notice of appeal to the Secretary of the Alabama Department of Revenue on February 28, 1977. It was received on March 3, 1977.

The State moved to dismiss on the ground that notice of appeal was not filed with the Department of Revenue within thirty days of the final assessment as required by § 140. The motion was granted and the appeal dismissed with prejudice.

Tit. 51, § 786(17)(a) of the Code of Alabama (1940) (Recomp.1958) (Supp.1973) provides that a taxpayer dissatisfied with the final assessment of sales tax may appeal in all respects in the same manner provided by Tit. 51, § 140. Section 140 provides

"If any taxpayer against whom an assessment is made by the department of revenue . . . is dissatisfied with the final assessment as fixed by the said department of revenue . . . he may appeal from said final assessment . . . to the circuit court of the county in which the taxpayer resides . . . by filing notice of appeal with the secretary of the department of revenue and with the register of the circuit court of the county to which the appeal shall be taken within thirty days from the date of said final assessment made and entered on the minutes of the department as is required by law . . . ."

Taxpayer contends that he has never received notice that the final assessment was "entered on the minutes of the department," and this failure of notice prevented the running of the thirty-day period. Although § 786(16) requires the Department in all cases to "notify the taxpayer of the assessment as finally fixed," the commencement of the thirty-day period in § 140 is merely hinged on the fact of the making of the assessment and its being entered upon the minutes of the department. It is not disputed that Taxpayer received a copy of the final assessment.

Taxpayer contends that the State's motion to dismiss should not have been granted since it does not specifically appear in the complaint or in the Final Assessment Notice, nor was it alleged in the motion to dismiss that the final assessment was ever "entered on the minutes of the department." By the terms of the statute, if the assessment has not been entered in the minutes, the time has not yet run for invoking the jurisdiction of the circuit court on appeal. However, we do not consider that the "entering on the minutes" provision requires a formal entry in a book of minutes comparable to that of corporate meetings. There is no indication that the Department has ever kept such "minutes." "Minutes" may be viewed as simply "the written memoranda of the assessment of the . . . tax." Howell & Graves, Inc. v. Curry, 242 Ala. 122, 5 So.2d 105 (1941). The final assessment and the official notice thereof received by Taxpayer are permanent records of the department and are "minutes" sufficient for the statute. See City of Talladega v. Jackson-Tinney Lumber Co., 209 Ala. 106, 95 So.2d 455 (1923).

Taxpayer argues that his notice of appeal was timely filed because of ARCP 6(a) and 6(e). ¹ He contends that since February 27 fell on a Sunday, and he received his Notice of Final Assessment by mail, these rules operated to permit filing with the Department as late as March 3, when the notice of appeal was in fact received by them. Not so. Compliance with the procedures of § 140 is a jurisdictional requirement. "The jurisdiction of a court must be invoked in the manner and within the time required by statute. . . . The right of appeal from a final assessment of the revenue department of the state is purely statutory and must be exercised in the manner and within the...