Nexus Rent-A-Car, Inc. v. Nash

• Decision Date: 08 March 1988
• Docket Number: Nos. WD,INC,RENT-A-CA,s. WD
• Citation: 747 S.W.2d 683
• Parties: NEXUS, d/b/a Dollar Rent-A Car, Inc., Plaintiff-Appellant, v. Donna C. NASH, Collector, Platte County, Missouri, Defendant-Respondent. 39401, WD 39402.
• Court: Missouri Court of Appeals

Page 683

747 S.W.2d 683

NEXUS RENT-A-CAR, INC., d/b/a Dollar Rent-A Car, Inc. Plaintiff-Appellant, v. Donna C. NASH, Collector, Platte County, Missouri Defendant-Respondent.

Nos. WD 39401, WD 39402.

Missouri Court of Appeals Western District.

March 8, 1988.

Donna L. Stanford, Kansas City, for plaintiff-appellant.

David A. Dolph, Platte City, for defendant-respondent.

Before NUGENT, P.J., and SHANGLER and BERREY, JJ.

NUGENT, Presiding Judge.

Nexus Car Rental, Inc. (Nexus), appeals from two decisions of the trial court granting defendant's motions to dismiss. Nexus argues that it was not required to exhaust administrative remedies before filing suit against the county collector to obtain a refund of taxes paid under protest, that under the language of the statutes, an alternative and equally valid remedy is presented.

We affirm.

Nexus conducts its car rental business on property at the Kansas City International Airport. Like all other car rental companies at K.C.I. Nexus has two contracts with the city, a concession agreement and a ground lease. The ground lease is for fifteen years at $7,200 per year. The lease terminates immediately upon plaintiff's failure to continue as a concessionaire at the airport.

The second contract is a concession agreement with a fixed minimum annual fee of $63,000 for the first three years and $75,000 for the fourth and fifth years or ten percent of concessionaire's annual gross revenue from the rent-a-car operations, whichever is greater. The agreement may be cancelled if Nexus fails to pay the fees.

The Platte County assessor assessed taxes against Nexus for 1981 and 1982 real property taxes on the basis of the ground lease alone. On July 19, 1985, Nexus paid the taxes under protest. On October 4, 1985, Nexus filed a petition to recover the protested tax in the Circuit Court of Platte County. The assessor filed her answer, and Nexus filed a motion for summary judgment. On January 28, 1987, the court denied the motion, and on January 30 the assessor filed a motion to dismiss. The trial court sustained the motion, and Nexus filed its appeal.

The Platte County assessor also assessed taxes for 1983 against Nexus; on July 22, 1986, the plaintiff paid the taxes under protest and on September 30 filed a petition to recover the protested taxes. The defendant's motion to dismiss was sustained on April 27, 1987, and this appeal followed. These appeals have been consolidated.

On this appeal, Nexus raises several points: First, it claims that the trial court erred in dismissing its petition because this court's decision in Avis Rent A Car Systems, Inc. v. State Tax Commission of Missouri, 716 S.W.2d 871 (Mo.App.1986), held that Nexus' leasehold interest has no value for tax purposes and the taxes were improperly assessed. Second, under the applicable statute Nexus had an alternative remedy to the administrative remedy. Third, the petition liberally construed with broad indulgence invokes substantive principles of law entitling plaintiff to relief. Fourth, plaintiff was not required to exhaust administrative remedies before filing suit under the statute, § 139.031.2. Finally, respondent collector has waived her right to raise the question of the trial court's lack of jurisdiction or is estopped from doing so because of the Avis decision relating to identically situated car rental agencies in Platte County.

Plaintiff's protest of 1981 and 1982 tax assessments is governed by § 137.385, § 138.430, and § 139.031, of the Revised Statutes of Missouri, 1978; plaintiff's protest of 1983 taxes is governed by the same sections of the 1986 revised statutes. § 137.385 provides: "Any person aggrieved by the assessment of his property may appeal to the county board of equalization...." Before its 1983 amendment, ¹ § 138.430 gave every owner of real or tangible personal property "the right of appeal from the local boards of equalization under rules prescribed by the state tax commission."

Section 139.031, in effect for the calendar years 1981 and 1982, provided in its pertinent parts as follows:

1. Any taxpayer may protest all or any part of any taxes assessed against him, except taxes collected by the director of revenue of Missouri. Any such taxpayer desiring to pay any taxes under protest shall, at the time of paying such taxes, file wtih the collector a written statement setting forth the grounds on which his protest is based, and shall further cite any law, statute, or facts on which he relies in protesting the whole or any part of such taxes.

2. The collector shall disburse to the proper official all portions of taxes not so protested, and he shall impound in a separate fund all portions of such taxes which are so protested. Every taxpayer protesting the payment of taxes, within ninety days after filing his protest, shall commence an action against the collector by filing a petition for the recovery of the amount protested in the circuit court of the county in which the collector maintains his office. If any taxpayer so protesting his taxes shall fail to commence an action in the circuit court for the recovery of the taxes protested within the time herein prescribed, such protest shall become null and void and of no effect, and the collector shall then disburse to the proper official the taxes impounded, as hereinabove provided.

In 1983, § 139.031 was amended and substantial changes were made by the addition of the phrase "Except as provided in subsection 3 of this section," at the beginning of the second sentence of § 139.031.2, and by the addition of a new subsection 3. ² Subsections 1, 2 and 3 of amended § 139.031, now found in Revised Statutes of Missouri, 1986, read as follows:

1. Any taxpayer may protest all or any part of any taxes assessed against him, except taxes collected by the director of revenue of Missouri. Any such taxpayer desiring to pay any taxes under protest shall, at the time of paying such taxes, file with the collector a written statement setting forth the grounds on which his protest is based.

2. The collector shall disburse to the proper official all portions of taxes not so protested and shall impound in a separate fund all portions of such taxes which are so protested. Except as provided in subsection 3 of this section, every taxpayer protesting the payment of taxes shall, within ninety days after filing his protest, commence an action against the collector by filing a petition for the recovery of the amount protested in the circuit court of the county in which the collector maintains his office. If any taxpayer so protesting his taxes shall fail to commence an action in the circuit court for the recovery of the taxes protested within the time prescribed in this subsection, such protest shall become null and void and of no effect, and the collector shall then disburse to the proper official the taxes impounded, and any interest earned thereon, as provided above in this subsection.

3. No action against the collector shall be commenced by any taxpayer who has, for the tax year in issue, filed with the state tax commission a timely and proper appeal of the protested taxes. Such taxpayer shall notify the collector of the appeal in the written statement required by subsection 1 of this section. The taxes so protested shall be impounded in a separate fund and the commission may order all or any part of such taxes refunded to the taxpayer, or may authorize the collector to release and disburse all or any part of such taxes in its decision and order issued pursuantto chapter 138, RSMo.

Thus, the law applicable to Nexus' claims for 1981 and 1982 and 1983 through September 27 is different from that applicable after September 27, 1983. For the latter year, on and after September 28, the taxpayer need not have commenced an action against the collector if the taxpayer had for that year already filed a timely and proper appeal of the protested tax with the state tax commission and properly notified the collector of that appeal. § 139.031.3 (1986).

Nothing could be more clear than that both the old and the new § 139.031 require that some action to protest tax assessments and to seek a refund of protested taxes paid be taken within the time prescribed in § 137.385, § 138.430 and § 139.031. Section 137.385 requires that one may appeal the assessment of his property to the county board of equalization, but that appeal "shall be lodged ... before the third Monday in June; provided, that the board may in its discretion extend the time for filing such appeals."

Next, through September 27, 1983, § 138.430 gave every property owner the right to appeal to the state tax commission from the board of equalization under rules prescribed by the commission.

Finally, through September 27, 1983, § 139.031 allowed any taxpayer to protest taxes assessed against him by paying the tax under protest and filing with the collector a written statement of the grounds for the protest and, within ninety days of filing the protest, by commencing an action in the circuit court against the collector to recover the amount protested. If the taxpayer failed to commence that circuit court action within the ninety days, his protest would become null and void, permitting the collector to disburse the fund collected to the proper officials. Since the effective date of the 1983 amendment of § 139.031, September 28, 1983, however, the taxpayer may rely on his appeal to ...