Terrebonne Parish Sales and Use Tax Dept. v. D & S Oilfield Rental Co.

• Decision Date: 03 April 1984
• Docket Number: No. 83,83
• Citation: 449 So.2d 589
• Court: Court of Appeal of Louisiana — District of US
• Parties: TERREBONNE PARISH SALES AND USE TAX DEPARTMENT v. D & S OILFIELD RENTAL COMPANY. CA 0559.

Page 589

449 So.2d 589

TERREBONNE PARISH SALES AND USE TAX DEPARTMENT v. D & S OILFIELD RENTAL COMPANY.

No. 83 CA 0559.

Court of Appeal of Louisiana First Circuit.

April 3, 1984.

Rehearing Denied May 21, 1984.

Edmund J. Connely, Houma, for plaintiff and appellant Terrebonne Parish Sales and Use Dept.

F. Kelleher Riess, Metairie, for defendant and appellee D & S Oilfield Rental Co.

Before SHORTESS, LANIER and CRAIN, JJ.

SHORTESS, Judge.

On September 16, 1982, the Terrebonne Parish Sales and Use Tax Department (Parish) filed three petitions seeking to collect unpaid sales and use taxes from Alvin Delaune, Special, D & S Oilfield Rental Company, and Louisiana Offshore Rentals, Inc. (defendants). It was alleged that defendants, all separate entities owned and/or substantially controlled by Alvin Delaune, had failed to pay the Parish taxes due on various transactions involving the purchasing and leasing of oil field support equipment.

The three petitions were identical except for the places where blanks had been filled in with the appropriate tax, interest, penalty, and total amount due the Parish. Additionally, the dates the alleged tax liability arose differed slightly for each defendant. Otherwise, the petitions stated that they had been filed pursuant to the Parish resolution "adopted on October 14, 1964, under the authority contained in Act No. 500 of the Regular Session of the 1964 Louisiana Legislature." The allegations in the petitions that the defendants are indebted to the Parish for this tax liability are all claims based upon sections of the Parish resolution. For example, Paragraph III of the petitions states that defendants failed to pay the tax, interest, and penalties, or to file the tax return required "by Section 6.02 of the Resolution." Paragraph IV states that the Parish proceeded to make an estimate of the taxes due it "in accordance with the provisions of the pertinent Section of the Resolution." Paragraph VI states that attorney fees are due the Parish from defendant "in accordance with the terms of the Resolution." Paragraph VII states that "under the authority contained in Section 9.02 of the Resolution, your petitioner is entitled to have a rule issued herein directed to the defendant, ordering it to show cause, [etc.]." However, the record does not contain any part of the "Resolution," much less its particular sections as referred to in the petitions.

The trial court found that Section 9.02 of the Terrebonne Parish General Sales and Use Tax Ordinance allowed the plaintiff to bring a suit for the taxes and seek an order prohibiting defendants from further pursuit of their businesses until the delinquent amounts were paid, noting that this remedy was "provided by Section 9.02 of the ... Ordinance and patterned after LSA-R.S 47:314." The court went on to state that "[s]tate and local tax departments are given an advantage under the law (LSA-R.S. 47:1574 and Section 9.01 of the Terrebonne Parish General Sales and Use Tax Ordinance) of being able to present a prima facie case for delinquent taxes and shifting the burden of proof to the alleged delinquent taxpayer to rebut the claim, if possible." The trial court then dismissed the claims based upon the Louisiana Sales Tax Law, La.R.S. 47:301-317 (apparently pursuant to the directive of La.Acts 1964, No. 500, § 1), ¹ as well as the "Parish ordinances" and some jurisprudence. A portion of the claims was dismissed without prejudice, as the trial court concluded that certain items in the audits could be taxable after closer analysis of those transactions. The Parish has appealed. Its brief contains arguments based upon the "Terrebonne Parish Sales and Use Tax Ordinance."

Prior to Act 316 of 1958, the only method by which a municipal or parochial ordinance could be proven in court was by a copy duly certified by the official, officer or employee who had custody of it (unless the original record were actually brought to court and properly identified). La.R.S. 13:3711 and 13:3712(A); Brown v. Parish of East Baton Rouge, 126 So.2d 173 (La.App. 1st Cir.1960). Act 316 of 1958 (La.R.S. 13:3712[B] ) authorized "courts of record" to take judicial notice of municipal or parochial ordinances "within their respective jurisdictions whenever certified copies of such ordinances have been filed with the clerk of said court." The Parish bases its right to recovery on the Terrebonne Parish General Sales and Use Tax ordinance adopted on October 14, 1964. We have reviewed the record and find no certified copy of such ordinance therein. La.R.S. 13:3711 has not been complied with.

The transcript and the court minutes do not reflect that the district court took judicial cognizance of the ordinance. There is no allegation or proof that the ordinance has been filed in the district court. Hudson v. City of Baton Rouge, 372 So.2d 1240 (La.App. 1st Cir.1979). Even if the district court noticed the ordinance, for appellate review it is incumbent on the party relying on the ordinance to make a certified copy of it a part of the appellate...