State Dept. of Revenue v. Zegarelli

• Decision Date: 22 March 1996
• Citation: 676 So.2d 354
• Parties: STATE DEPARTMENT OF REVENUE v. Joseph John ZEGARELLI, Jr. Joseph John ZEGARELLI, Jr. v. STATE DEPARTMENT OF REVENUE. 2941055, 2941117.
• Court: Alabama Court of Civil Appeals

Page 354

676 So.2d 354

STATE DEPARTMENT OF REVENUE v. Joseph John ZEGARELLI, Jr.

Joseph John ZEGARELLI, Jr. v. STATE DEPARTMENT OF REVENUE.

2941055, 2941117.

Court of Civil Appeals of Alabama.

March 22, 1996.

Dan E. Schmaeling, Asst. Counsel, Department of Revenue, and Deputy Atty. Gen., for the State Department of Revenue.

Walter L. Blocker III, Birmingham, for Joseph John Zegarelli, Jr.

SAM A. BEATTY, Retired Justice.

On February 6 and March 20, 1989, Joseph John Zegarelli, Jr., was arrested for possession of marijuana. On May 17, 1989, the Alabama Department of Revenue ("the Department") entered two final jeopardy assessments of marijuana and controlled substances tax against Zegarelli pursuant to Alabama's controlled substances excise tax statutes, §§ 40-17A-1 to -16, Ala.Code 1975. On December 15, 1989, Zegarelli pleaded guilty to possession of marijuana in the first degree; the court gave him a ten-year suspended sentence and placed him on a five-year probation. On September 9, 1994, the Department issued a writ of garnishment against Zegarelli's employer in an effort to collect the final assessment taxes entered against Zegarelli in 1989. By that time, the assessments and interest thereon totalled $14,468.83.

After his employer had withheld approximately $300 from his wages, Zegarelli filed a motion to quash the writ of garnishment and a complaint attacking the amount of the final assessment and the constitutionality of Alabama's controlled substances excise tax statutes. After holding two hearings, the trial court reduced the amount of controlled substances tax owed by Zegarelli to $5,882.50 and denied all other relief sought. The Department appealed, and Zegarelli cross-appealed.

The Department argues that the trial court did not have jurisdiction over this case, and, therefore, that the court should have dismissed it. We agree. Section 40-2A-7(b)(5), Ala.Code 1975, currently outlines the procedure a taxpayer must follow in order to appeal or contest an assessment. The taxpayer must file a notice of appeal within 30 days from the entry of the final assessment and must either pay the assessment in full, file a supersedeas bond in double the amount of the assessment, or show to the circuit court clerk's satisfaction that he or she has a net worth of $20,000 or less. The statute mandates that "[i]f such prerequisites are not satisfied within the time provided for appeal, the appeal shall be dismissed for lack of jurisdiction." It is undisputed that Zegarelli did not contest the assessments within 30 days. Indeed, he did not contest them until five years later, when the Department garnished his wages in an effort to collect the taxes. It is also undisputed that Zegarelli neither paid the assessments nor filed a supersedeas bond.

At the time the assessments were entered in 1989, the appeal process was governed by § 40-2-22, Ala.Code 1975 (repealed by Ala. Acts 1992, No. 92-186, § 80). The procedure for appeal set out by that statute was substantially the same as that now outlined by § 40-2A-7, except that § 40-2-22 contained a third requirement that a bond or security for costs be filed within the 30-day appeal period. The final jeopardy assessments against Zegarelli clearly notified him that any appeal of the assessments must be filed within 30 days in accordance with § 40-2-22. Caselaw construing § 40-2-22 holds that the failure to comply with any of the statutory requirements for appeal prevents a circuit court from having jurisdiction to entertain an appeal from an assessment. See, e.g., Frozen Yogurt Shop, Inc. v. State, 595...