New Garden Rest., Inc. v. Dir. Revenue

• Decision Date: 13 October 2015
• Docket Number: No. SC 94897,SC 94897
• Parties: New Garden Restaurant, Inc., Appellant, v. Director of Revenue, Respondent.
• Court: Missouri Supreme Court

471 S.W.3d 314

New Garden Restaurant, Inc., Appellant,

v.Director of Revenue, Respondent.

No. SC 94897

Supreme Court of Missouri, en banc .

Opinion issued October 13, 2015

The restaurant was represented by Liyue Huang–Sigle, an attorney in Overland Park, Kansas, (913) 244–2212.

The director was represented by Solicitor General James R. Laytonand Rochelle L. Reevesof the attorney general's office in Jefferson City, (573) 751–3321; and Stephen Patrick Sullivan of the department of revenue in Jefferson City, (573) 751–0961.

Opinion

Zel M. Fischer, Judge

New Garden Restaurant, Inc. petitions for review of the Administrative Hearing Commission's summary decision dismissing New Garden's appeal of the Director of Revenue's tax assessments against New Garden. The Commission held it had no authority to hear New Garden's appeal because the appeal was not filed within the time limitation for doing so. New Garden argues the Commission's interpretation of §§ 621.050.1 and 144.261¹is unfair to taxpayers and violates the due process clauses of the Missouri and United States constitutions.²New Garden also argues the Commission erred in: (1) holding equitable estoppel did not apply in this case; (2) assuming New Garden received notice of the final assessments; and (3) finding the appeal was filed late. This Court has jurisdiction pursuant to article V, section 3 of the Missouri Constitution. The Commission's summary decision dismissing New Garden's appeal is affirmed.

Factual and Procedural History

In July 2014, New Garden received “estimated audit assessments” from the Department of Revenue, notifying New Garden it owed $43,737.82 in unpaid sales tax and that final assessment notices would be delivered via certified mail after the audit was reviewed and processed. The record reflects that, on September 5, 2014, the Department sent 34 final assessment notices by certified mail to New Garden's address, each of which stated:

This assessment is the Final Decision of the Director of Revenue. If you are adversely affected by this decision, you may appeal to the Administrative Hearing Commission. To appeal, you must file a petition with the Commission within sixty (60) days after the date this decision was mailed or the date it was delivered, whichever date was earlier.... Send appeals to the Administrative Hearing Commission, Box 1557, Jefferson City, MO 65102–1557.

The notices also explained that another option was to “request the director of revenue to conduct an informal review of the assessment” but that such request did not extend or affect the 60–day limitation for filing an appeal with the Commission. As such, the deadline to file an appeal with the Commission was November 4, 2014.

New Garden claims it never received these final assessment notices. On October 9, New Garden's counsel emailed an auditor at the Department, indicating an intent to dispute the estimated assessments. The email also expressed concern over a possible approaching deadline to do so—though counsel was unable to determine when this deadline would be—and requested an extension. In response, the auditor provided counsel the “Missouri Taxpayer Bill of Rights,” which contained the same pertinent information as the final assessment notices with regard to appeals, informal reviews, and the time limitations. New Garden claims that, the following day, its counsel had a telephone conversation with another Department agent in which the agent told counsel the 60–day period for appeal did not run if New Garden had not received the notices, but that New Garden could still request an informal review from the Department in the meantime.

New Garden claims it then requested such informal review on October 24 and that, after not hearing back, its counsel called the Department on November 12 and was told New Garden's filing was missing and to “quickly file with [the Commission].” New Garden further claims its counsel was then given the wrong fax number for the Commission, which caused additional delay. New Garden's appeal was finally filed with the Commission on November 19, over two weeks past the deadline. The Director of Revenue then filed a motion to dismiss New Garden's appeal as untimely. Because this motion contained matters outside the pleadings, the Commission treated it as a motion for summary decision, pursuant to 1 CSR 15–3.436(4)(A). The Commission granted the motion, and New Garden subsequently petitioned this Court for review.

Standard of Review

Summary decision “is proper if a party establishes facts that entitle any party to a favorable decision and no party genuinely disputes such facts.” Krispy Kreme Doughnut Corp. v. Dir. of Revenue,358 S.W.3d 48, 51 (Mo. banc 2011)(internal quotations omitted). “A claimant wishing to succeed on a summary decision motion, therefore, must establish that there is no genuine dispute as to those material facts upon which the claimant would have had the burden of persuasion at a hearing.” Id.(Internal quotations omitted).

This Court will uphold the Commission's decision when it is “authorized by law and supported by competent and substantial evidence upon the record as a whole unless clearly contrary to the reasonable expectations of the General Assembly.” 801 Skinker Blvd. Corp. v. Dir. of Revenue,395 S.W.3d 1, 3–4 (Mo. banc 2013)(internal quotations omitted); see also§ 621.193. “This Court reviews the commission's interpretation of the applicable statutes de novo.” BASF Corp. v. Dir. of Revenue,392 S.W.3d 438, 443–44 (Mo. banc 2012). “The Commission's findings of fact will be upheld if the findings are supported by substantial evidence on the whole record.” 801 Skinker,395 S.W.3d at 4.

Analysis

Section 621.050.1 provides the right to appeal “any finding, order, decision, assessment or additional assessment made by the director of revenue,” and requires the director to give notice of this right of appeal. Section 621.050.1 also provides a time limitation for appealing: “within thirty days after the decision of the director is placed in the United States mail or within thirty days after the decision is delivered, whichever is earlier.” However, § 144.261 modifies this time limitation, providing that “notwithstanding the provisions of section 621.050 to the contrary, such [appeal to the Commission of a tax assessment] must be filed within sixty days after the mailing or delivery of such decision,whichever is earlier.” (Emphasis added).

Sections 621.050.1 and 144.261 Do Not Violate Due Process

New Garden's position is that it missed the deadline to file an appeal with the Commission because it never received the final assessment notices and, therefore, had no notice of the right of appeal and the corresponding deadline. New Garden argues the Commission's interpretation of §§ 621.050.1 and 144.261 is unfair to taxpayers and violates the due process clauses of the Missouri and United States Constitutions. It contends that, because § 621.050.1 requires the director to provide notice of the right of appeal, the legislature intended to make the taxpayer's actual knowledge of the right of appeal a “pre-condition to the imposition of the 60–day filing deadline,” i.e.,the time limitation should not begin to run until the taxpayer receives actual notice of the final assessments with the accompanied information on right of appeal. This argument is without merit.

First, the Commission's application of the law involved no statutory interpretation. Sections 621.050.1 and 144.261 unambiguously provide that the respective time limitations begin to run either after mailing ordelivery of the director's decision, whichever is earlier. Neither section contains any provision that the taxpayer must actually receive the decision—or have actual knowledge of the right of appeal—for the time limitation to run. There is no issue of interpretation; the Commission simply applied the statutes' plain, unambiguous terms in calculating the deadline. SeeIns. Co. of State of Pa. v. Dir. of Revenue and Dir. of Ins.,269 S.W.3d 32, 34 n. 5 (Mo. banc 2008)(“There is no need to resort to statutory interpretation to determine a statute's applicability when the statute is unambiguous.”).

Second, the fact that the sections provide for the time limitations to start without the taxpayer actually receiving notice of the director's decision does not raise a due process concern. Due process does not require actual notice before the government takes action. State v. Elliott,225 S.W.3d 423, 424 (Mo. banc 2007)(citing Dusenbery v. United States, 534 U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002)).³However, “[d]ue process does require notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id.(citing Mullane v. Cent. Hanover Bank & Trust Co.,339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). “The notice required will vary with the circumstances and conditions.” Id.(citing Walker v. City of Hutchinson,352 U.S. 112, 115, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956)).

Because due process does not require actual notice, there is no constitutional prohibition with §§ 621.050.1 and 144.261 starting the time limitations without requiring the taxpayer to receive actual notice. The issue is whether notice sent pursuant to these sections was reasonably calculated to give notice and an opportunity to respond in this particular case. In Elliott,the director sent notices of tax assessments by certified mail to the taxpayer's last known address, pursuant to § 143.611's requirements.⁴Id.The notices were returned to the Director as unclaimed, and the taxpayer, like New Garden, claimed a due process violation because she never received the notices. Id.This Court, however, held the method of notice was sufficient for due process purposes because there was “no evidence that the address was incorrect.” Id.Here, the final assessment notices were sent via certified mail to New Garden's last...