Standard Oil Co. v. Howell

• Citation: 360 So.2d 1200
• Decision Date: 17 May 1978
• Docket Number: No. 50253,50253
• Parties: STANDARD OIL COMPANY v. Jamie W. HOWELL, Sr., Motor Vehicle Comptroller of the State of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1200

360 So.2d 1200

STANDARD OIL COMPANY v. Jamie W. HOWELL, Sr., Motor Vehicle Comptroller of the State

of Mississippi.

No. 50253.

Supreme Court of Mississippi.

May 17, 1978.

Rehearing Denied Aug. 9, 1978.

Watkins & Eager, Thomas H. Watkins, Cox & Dunn, Vardaman S. Dunn, Jackson, for appellant.

Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, John B. Clark, Jackson, for appellee.

Before ROBERTSON, LEE and BOWLING, JJ.

LEE, Justice, for the Court:

The Motor Vehicle Comptroller of the State of Mississippi entered an order on July 18, 1973, after an evidentiary hearing, requiring Standard Oil Company to pay to the State of Mississippi the sum of one hundred ninety-eight thousand five hundred forty-three dollars twenty-six cents ($198,543.26), tax and penalty on diesel fuel, pursuant to Mississippi Code Annotated Section 27-55-331 (1972). On appeal, the Chancery Court of Hinds County reversed and vacated the order of the Comptroller, the Mississippi Supreme Court reversed and reinstated the Comptroller's order (Sharpe v. Standard Oil Co., 322 So.2d 457 (Miss.1975)), and the United States Supreme Court denied certiorari. The mandate from this Court ordered that the decree of the chancery court rendered in said cause on the 14th day of March, 1974, be reversed and the order of the Motor Vehicle Comptroller be reinstated.

Standard Oil Company paid the tax and interest accrued in the sum of one hundred sixty-seven thousand seven hundred forty- one dollars nineteen cents ($167,741.19), but declined to pay the penalty amount of thirty thousand eight hundred two dollars seven cents ($30,802.07). Instead, a petition for waiver of penalty was filed with the Comptroller in accordance with Mississippi Code Annotated Section 27-55-331 (1972), which section follows:

"When any distributor of other motor fuel or other person shall fail to file his or its monthly report with the comptroller on or before the time fixed in this article for the filing thereof, or when such distributor or other person shall fail to pay to the comptroller the amount of taxes due this state when the same shall become due and payable, a penalty of five percent of the principal tax shall immediately accrue if the failure is for not more than thirty days; and for each additional thirty days, or fraction thereof, during which the failure shall continue an additional five percent penalty of the principal tax shall immediately accrue; provided, however, that all such penalties shall not exceed twenty percent in the aggregate of the principal tax, unless the failure is willful, or willful intent exists to defraud this state of any tax due under this article, in which event a special penalty of fifty percent of the principal tax due shall be assessed; and thereafter, said tax and penalty shall bear interest at the rate of six percent per annum until paid.

Notwithstanding anything to the contrary contained in this section, the comptroller shall have the authority to waive any penalty in an amount not to exceed one hundred dollars, or in any amount in excess thereof, with the written approval of the attorney general of this state, when it is shown to the satisfaction of the comptroller that there was no willful intent to violate this article." (Emphasis added).

After the petition for waiver of penalty was filed, the Motor Vehicle Comptroller made a factual determination that Standard Oil Company did not willfully refuse to pay the tax, and the Attorney General of Mississippi gave his written consent and approval for waiver of the penalty. The Comptroller further indicated that he would exercise his authority to waive the penalty, but that he had no jurisdiction to do so and the petition was denied. On appeal to the Chancery Court of Hinds County, the chancellor sustained the Comptroller and held that the former hearing and order was res judicata of the waiver question.

Standard Oil Company contends on appeal to this Court:

(1) The chancery court erred as a matter of law, in concluding that the Motor Vehicle Comptroller had no jurisdiction to waive the penalty involved by reason of the judgment of the Supreme Court of Mississippi on the former appeal from the Comptroller's assessment of the tax and penalty in this case.

(2) Since the Comptroller found as a fact that there was no willful intention to violate the law in the nonpayment of the tax by appellant when due, and since the application for waiver had been approved in writing by the Attorney General of the State of Mississippi, the chancery court must apply the law to the facts, as such facts existed at the time of the application for waiver.

(3) The chancery court erred in applying the theory of res judicata to the application for waiver of penalty and the interest thereon.

(4) The chancery court erred in affirming the order of the Comptroller and in failing to order a waiver of the penalty.

The question before the Court here upon undisputed facts, regardless of the assignments of error, is one of law and, simply stated, is whether or not the decision and judgment rendered by this Court in Sharpe v. Standard Oil Company, supra, now preclude waiver of the statutory penalty under the above Section 27-55-331 and the doctrine of res judicata.

Prior to, and at the time of, the evidentiary hearing before the Comptroller, appellant did not avail itself of the statutory provision that the Comptroller has authority to waive any penalty with the written approval of the...