Riggan v. Director of Revenue

• Decision Date: 12 April 1969
• Docket Number: No. 45290,45290
• Citation: Riggan v. Director of Revenue, 203 Kan. 129, 453 P.2d 52 (Kan. 1969)
• Parties: James H. RIGGAN, Appellant, v. DIRECTOR OF REVENUE of the State of Kansas, Leonard H. Axe, Appellee.
• Court: Kansas Supreme Court

Page 52

453 P.2d 52

203 Kan. 129

James H. RIGGAN, Appellant, v. DIRECTOR OF REVENUE of the State of Kansas, Leonard H. Axe, Appellee.

No. 45290.

Supreme Court of Kansas.

April 12, 1969.

Syllabus by the Court

1. Statutes of limitation do not run against the state unless specifically provided by statute. The rights of a state are not lost through laches, estoppel or inaction of public officials.

2. The methods prescribed for the recovery of delinquent taxes are wholly statutory, no methods exist apart from the statute, and whatever procedures and remedies are available are to be found in the tax statutes.

3. The Director of Revenue of the state of Kansas issued an alias tax warrant to recover unpaid sales tax from the plaintiff more seven years after a previous alias tax warrant was returned unsatisfied. No action whatever was taken by the Director during the intervening period. In an action by the plaintiff to enjoin the Director from collecting such unpaid sales tax, the trial court denied the plaintiff relief, and on appeal it is held: (a) The Director is authorized under K.S.A. 79-3617 to issue an alias warrant at any time after a warrant has been returned unsatisfied, or satisfied only in part, until the full amount of the tax is collected; and (b) the provisions of K.S.A. 60-2403 in the code of civil procedure pertaining to a dormant judgment do not apply.

Earl M. Clarkson, Jr., Wichita, argued the cause, and Wilmer E. Goering and Michael J. Silver, Wichita, with him on brief for appellant.

Dale E. Dixon, Topeka, argued the cause, and Kent Frizzell, Atty. Gen., with him on brief for appellee.

SCHROEDER, Justice.

This is an action to enjoin the Director of Revenue from any further attempts to collect sales tax from the plaintiff herein. The sales tax was imposed during the year 1950 against the plaintiff, and no action was taken by the Director of Revenue from August 1, 1958, until June 29, 1966, a period of seven years, ten months and twenty-nine days. By reason thereof the plaintiff contends the Director is barred from collection of the tax by the provisions of K.S.A. 60-2403-the dormant judgment statute. The district court of Sedgwick County entered judgment against the plaintiff and appeal has been duly perfected.

The underlying question is whether the Director of Revenue is barred from further attempts to collect sales tax owing by the plaintiff when more than seven years have passed since any attempt was undertaken to collect the tax.

The facts are not in dispute, the same having been admitted by the pleadings and stipulations of the parties.

James H. Riggan (plaintiff-appellant) operated a food market in Great Bend, Kansas, and incurred a sales tax liability of $1,100.88. This resulted in a sales tax warrant filed July 2, 1952, with the clerk of the district court of Sedgwick County, Kansas, where the appellant was then residing.

Thereafter, various garnishments and collections reduced the amount due and owing the state of Kansas to the sum of $629.30. On August 1, 1958, an alias sales tax warrant was filed with the clerk of the district court of Sedgwick County, Kansas, for the collection of this sum. The original of this warrant was returned unsatisfied to the Director of Revenue of the state of Kansas.

Thereafter, no further action of any nature was taken until the 29th day of June, 1966, at which time an alias tax warrant was filed with the clerk of the district court of Sedgwick County-this being a period of seven years, ten months and twenty-nine days after the alias sales tax warrant of August 1, 1958, was filed.

After the 1966 alias tax warrant was filed, the appellant filed a petition in the district court of Sedgwick County, Kansas, praying for an injunction to bar the Director of Revenue of the state of Kansas from the collection of such sales tax on the ground that the original warrant of August 1, 1958, became a judgment, and because no action was taken thereon for a period of more than five years the judgment became dormant by virtue of K.S.A. 60-2403, and so remained for a period of more than two years thereafter, no revivor having been undertaken pursuant to the provisions of K.S.A. 60-2404.

The trial court after hearing the matter denied the injunction, holding that although a period of more than seven years 'elapsed without any further action or attempt to collect the sales tax liability, that after a tax warrant has been timely filed, additional tax warrants may be filed thereafter without any limitation as to time and without any regard to any applicable statute of limitations.'

It must generally be conceded the methods of collecting taxes are statutory, and that statutes of limitation do not run against the state unless specifically provided by statute. The rights of a state are not lost through laches, estoppel or inaction of public officials. (In re Moseley's Estate, 100 Kan. 495, 164 P. 1073, L.R.A. 1917E, 1160; Kucera v. State, 160 Kan. 624, 164 P.2d 115; and Board of County Commissioners v. Lewis, this date decided, 203 Kan. 188, 453 P.2d 46.)

The issue presented herein must be resolved by a construction of the various statutes touching the subject.

K.S.A. 79-3617 provides in part:

'Whenever any taxpayer liable to pay any sales or compensating tax, refuses or neglects to pay the same, the amount, including any interest or penalty, shall be collected in the following manner: The director of revenue shall issue a warrant under his hand and official seal directed to the sheriff of any county of the state commanding him to levy upon and sell the real and personal property of the taxpayer found within his county to satisfy said tax, including penalty and interest, and the cost of executing the warrant and to return such warrant to the director of revenue and pay to him the money collected by virtue thereof not more than ninety (90) days from the date of the warrant. The sheriff shall, within five (5) days, after the receipt of the warrant file with the clerk of the district court of his county a copy thereof, and thereupon the clerk shall enter in the judgment docket in appropriate columns, the name of the taxpayer mentioned in the warrant, the amount of the tax or portion thereof, interest and penalties for which the warrant is issued and the date such copy is filed. The amount of such warrant so docketed shall thereupon become a lien upon the title to, and interest in, the real property of the taxpayer against whom it is issued in the same manner, as a judgment duly docketed in the office of such clerk. The sheriff shall proceed in the same manner and with like effect as prescribed by law with respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for his services.

'The court in which the warrant is docketed shall have jurisdiction over all subsequent proceedings as fully as though a judgment had been rendered in said court: Provided, however, * * * If a warrant be returned, unsatisfied in full, the director shall have the same remedies to enforce the claim for taxes as if the state of Kansas had recovered judgment against the taxpayer for the amount of the tax. * * * The director shall have the right at any time after a warrant has been returned unsatisfied, or satisfied only in part, to issue alias warrants until the full amount of said tax is collected: * * *' (Emphasis added.)

It should be noted the last italicized sentence in 79-3617, supra, above quoted, also appears in K.S.A. 79-3235, which provides for the collection of income tax.

The appellee contends this case necessarily involves an interpretation of the language in the last italicized sentence. It is argued, unless the language in this sentence is interpreted literally, the provision is 'null and void and of no force and effect and constitutes a gratuitous and unwarranted legislative pronouncement.'

This provision is a distinguishing characteristic of the tax warrant authority vested in the Director of Revenue by the Kansas legislature with respect to the collection of sales tax and income tax, and it is in direct contrast to the tax warrant provision contained in K.S.A. 79-2101 which establishes the procedure for the collection of unpaid personal property taxes, vesting the authority for the issuance of tax warrants for the collection of personal property taxes in the county treasurer of the several counties.

The material portions of 79-2101, supra, pertaining to the collection of unpaid personal property taxes, read as follows:

'The sheriff as soon as he shall collect the tax warrant shall make a return thereof and shall make a return of all tax warrants delivered to him on or before the first day of October of the year following the year in which said tax was levied. If the warrant so returned shall show that the tax has been collected, the sheriff shall pay the same to the county treasurer; but if such return shall show that such tax has not been collected, then the county treasurer shall file with the clerk of the district court of his county an abstract of the total amount of unpaid taxes and interest due plus penalties and costs, accompanied by the last tax warrant, and said clerk shall enter the total amount thereof on his judgment docket, and said total amount, together with interest thereon at the rate of ten percent (10%) per annum from the date of filing thereof, until paid, shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure and shall become a lien on real estate from and after the time of the filing thereof. * * *

'* * * If execution shall not be sued out within five (5) years from the date of the entry of any such judgment, or if five (5) years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall...