Schwartz v. State Dept. of Revenue Admin., s. 90-331

• Decision Date: 24 April 1992
• Docket Number: 90-453,Nos. 90-331,s. 90-331
• Citation: 135 N.H. 470,606 A.2d 806
• Parties: Eugene SCHWARTZ v. The STATE of New Hampshire DEPARTMENT OF REVENUE ADMINISTRATION, and another.
• Court: New Hampshire Supreme Court

Page 806

606 A.2d 806

135 N.H. 470

Eugene SCHWARTZ v. The STATE of New Hampshire DEPARTMENT OF REVENUE ADMINISTRATION, and another.

Nos. 90-331, 90-453.

Supreme Court of New Hampshire.

April 24, 1992.

Susan V. Denenberg, Portsmouth, by brief, and Martin Schwartz, New Rochelle, N.Y., orally, for plaintiff.

John P. Arnold, Atty. Gen. (Monica A. Ciolfi, Asst. Atty. Gen., on the brief and orally), for State.

BROCK, Chief Justice.

The plaintiff, Eugene Schwartz, appealed a tax assessment pursuant to RSA 77:25 (recodified as RSA 21-J:28-b (Supp.1991)), including claims under 42 U.S.C. § 1983 that the interest and dividends tax violates the commerce clause and equal protection clause of the Federal Constitution. The Superior Court (Manias, J.) dismissed the plaintiff's appeal in its entirety. We affirm in part, reverse in part and remand.

The facts of this case, although convoluted, are not in dispute. Eugene Schwartz was a resident of Concord from March 1984 until July 1, 1988, when he moved to Washington, D.C. As a resident of New Hampshire, Schwartz was subject to the interest and dividends tax, RSA 77:4-a, which taxes interest earned, in excess of $1200, in states other than New Hampshire or Vermont. Schwartz was unaware that any tax was due until he received a notice from the New Hampshire Department of Revenue Administration (Department). The notice, dated November 10, 1988, had been forwarded to his Washington, D.C., address by the United States Post Office, and was not received by the plaintiff until November 28, 1988. On January 5, 1989, the plaintiff forwarded his check for $887.18 to cover the taxes due (including interest thereon) for the years 1985 through 1987. On January 25, 1989, Schwartz filed a bill in equity in the superior court. Counts I and II of the petition constituted an appeal of the tax assessment pursuant to RSA 77:25 on the grounds that the interest and dividends tax violates the commerce clause (count I) and the equal protection clause (count II) of the Federal Constitution. Count III sought to raise the same constitutional claims under the guise of a civil rights action pursuant to 42 U.S.C. § 1983.

On April 19, the superior court granted the Department's motion to dismiss counts I and II on the grounds that the appeal was untimely under RSA 77:25. The court also dismissed count III, to the extent it alleged a commerce clause violation pursuant to 42 U.S.C. § 1983, relying on our decision in Private Truck Council of America v. State, 128 N.H. 466, 517 A.2d 1150 (1986). The court allowed the remainder of the third count, which alleged an equal protection claim pursuant to 42 U.S.C. § 1983, to stand. Prior to receiving the court's ruling, the plaintiff moved to amend his petition to add a claim for the interest and dividends tax of $88.63 that he paid for 1988. The Department did not contest the amendment, but the court allowed the amendment only to the extent it amended the § 1983 equal protection cause of action. In response to the court's ruling, the plaintiff filed a second bill in equity ("second suit"), consisting of three counts alleging the same claims as in the first suit, but with respect to the 1988 taxes.

By order dated June 18, 1990, the superior court, reasoning that the plaintiff may not pursue a § 1983 claim when an adequate state law remedy exists, reversed its earlier ruling and dismissed the amended complaint in toto. The trial court also dismissed the plaintiff's second suit, ruling that because the court had made determinative rulings on all the claims in the first suit, the doctrines of res judicata and collateral estoppel prevented the plaintiff from relitigating these issues in the second suit.

The first issue on appeal is whether the trial court erroneously interpreted RSA 77:25 to require a taxpayer's appeal to be filed in the superior court within sixty days of the date on the Department's notice, thereby rendering the plaintiff's constitutional claims in counts I and II untimely. RSA 77:25 provides that a taxpayer aggrieved by the assessment of any tax must appeal such assessment within sixty days of the notice of the tax. The trial court interpreted this statute to require a taxpayer's appeal to be filed in the superior court within sixty days of the date on the Department's notice, rather than within sixty days of the taxpayer's receipt of the notice.

Although this court has not previously construed RSA 77:25, we have considered the issue of timely appeals in other statutes. We have consistently held that appeal periods run from the date of the order or other action giving rise to the appeal, rather than the date the decision is received. See, e.g., Wentworth-Douglass Hosp. v. N.H. Dept. Health & Welfare, 131 N.H. 364, 367, 553 A.2d 311, 313 (1988) (petition for certiorari must be filed within thirty days of adverse decision by administrative body); Chauffeurs Local Union No. 633 v. Silver Bros. Inc., 122 N.H. 1035, 1037, 453 A.2d 1292, 1293 (1982) (appeal period runs from date the motion to reconsider is denied); Rollins v. Rollins, 122 N.H. 6, 10, 440 A.2d 438, 440 (1982) (appeal period runs from date of last order); Keene v. Zoning Board, 114 N.H. 744, 746, 329 A.2d 141, 142 (1974) (appeal period runs from date of order or decision by zoning board); Salmonsen v. Rindge, 113 N.H. 46, 48, 299 A.2d 926, 927 (1973) (expressly noting that appeal period runs from date action complained of is recorded, not time of receipt of notice). The plaintiff has introduced no evidence which would excuse his delay, and we find no principled reason to deviate from our previous decisions concerning the timeliness of appeals in those cases. Accordingly, we hold that, absent extenuating circumstances, notice is commensurate with the date on the letter notifying the taxpayer of his obligation, rather than the date the notice is actually received.

In the case before us, the Department mailed the plaintiff a letter, dated November 10, 1988, notifying him of taxes due for the years 1985-87. The plaintiff commenced suit contesting the constitutionality of the statute on January 28, 1989, seventy-five days later. Therefore, since the plaintiff filed suit after the sixty-day appeal period had expired, the appeal was untimely, and the trial court properly dismissed counts I and II of the first suit.

We now turn our attention to the question of whether the plaintiff's second suit, for the 1988 taxes, was properly barred by res judicata. The plaintiff, prohibited from amending his original complaint to fully assert his claims for the 1988 taxes, filed a bill in equity thereby commencing a second suit. The trial court ruled that this claim could have been included in the first suit. Therefore, even though it was timely, the second suit was dismissed on the grounds of res judicata.

"The doctrine of res judicata bars litigation in a later case of matters actually litigated, and matters that could have been litigated, in an earlier action between the same parties for the same cause of action." In re Alfred P., 126 N.H. 628, 629, 495 A.2d 1264, 1265 (1985). "The term 'cause of action' means the right to recover and refers to all theories on which relief could be claimed arising out of the same factual transaction in question." Radkay v. Confalone, 133 N.H. 294, 297, 575 A.2d 355, 357 (1990) (citations omitted). The plaintiff has asserted no new theories of relief. On the contrary, the theories are identical; it is the factual matter, i.e., the year of the tax assessment, that differs.

As a preliminary matter, we note that the plaintiff's appeal rights accrued at different...