IN THE SUPREME COURT OF MISSISSIPPI NO CA-00549

Transcription

1 E-Filed Document Oct :40: CA Pages: 26 IN THE SUPREME COURT OF MISSISSIPPI NO CA MARLENA ROBINSON APPELLANT vs. ED MORGAN, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF REVENUE OF THE MISSISSIPPI DEPARTMENT OF REVENUE APPELLEE ON APPEAL FROM THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI CAUSE NO. G S/2 BRIEF OF THE APPELLANT ORAL ARGUMENT REQUESTED James G. McGee, Jr., Esq. (MSB #102385) W. Harrison Webb, Esq. (MSB #105084) McGee Tax Law, PLLC 125 S. Congress St. Capital Towers, Suite 1240 Jackson, MS Telephone: (601) Facsimile: (601) COUNSEL FOR APPELLANT

2 IN THE SUPREME COURT OF MISSISSIPPI NO CA MARLENA ROBINSON APPELLANT vs. ED MORGAN, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF REVENUE OF THE MISSISSIPPI DEPARTMENT OF REVENUE APPELLEE ON APPEAL FROM THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI I. CERTIFICATE OF INTERESTED PARTIES THE UNDERSIGNED counsel of record certifies that the following listed persons and/or entities have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court of Mississippi and/or the Judges of the Mississippi Court of Appeals may evaluate possible disqualifications or recusal. 1. Marlena Robinson, Appellant 8971 Highway 145 North Quitman, MS James G. McGee, Jr., Esq. W. Harrison Webb, Esq. 125 S. Congress Street Capital Towers, Suite 1240 Jackson, MS Telephone: (601) Facsimile: (601) i

3 Jon F. Carmer, Jr., Esq. John S. Stringer, Esq. Mississippi Department of Revenue P. O. Box Jackson, MS Telephone: (601) Facsimile: (601) COUNSEL FOR APPELLEE 3. Hon. William Hale Singletary Hinds County Chancery Court Post Office Box 686 Jackson, MS SO CERTIFIED this 13th day of October, /s/ James G. McGee, Jr. James G. McGee, Jr. (MSB # ) COUNSEL FOR APPELLANT ii

4 II. STATEMENT REGARDING ORAL ARGUMENT The final resolution of the extent of the Chancery Courts jurisdiction to hear administrative appeals established by Miss. Code Ann will have profound implications for all taxpayers in the State of Mississippi. The tax system, by its very nature, is complex, and the majority of taxpayers do not have sufficient knowledge of tax concepts, thereby necessitating assistance of an accountant or tax attorney in preparing for an administrative hearings following assessment of additional tax. Here, the issues implicate principles of judicial interpretation and the administration of the Mississippi tax code in accordance with these principles. Accordingly, Marlena Robinson respectfully requests an oral argument as the Mississippi Department of Revenue s interpretation of its authority threatens to impinge on constitutional rights as more fully set forth herein. iii

5 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES...i STATEMENT CONCERNING ORAL ARGUMENT iii TABLE OF CONTENTS...iv TABLE OF AUTHORITIES...v STATEMENT OF THE ISSUES..viii STATEMENT OF THE CASE....1 A. Nature of the Case, the Course of Proceedings, and Disposition in the Court Below.1 B. Statement of the Facts SUMMARY OF THE ARGUMENT...4 ARGUMENT...5 A. STANDARD OF REVIEW... 5 B. THE CHANCELLOR ERRED IN GRANTING MDOR S MOTION TO DISMISS THE TAXPAYER S COMPLAINT ON THE BASIS THAT THE TAXPAYER FAILED TO SATISFY THE BOND REQUIREMENT MANDATED UNDER MISS. CODE ANN Because the language of Miss. Code Ann was amended during the pendency of the Taxpayer s appeal, this Court should apply the version of the law as it presently exists The ambiguous language of the purported savings clause described in Section 19 of H.B. 799 should not prevent the retroactive application of this amendment to tax assessments made prior to the effective date of those amendments..12 CONCLUSION CERTIFICATE OF SERVICE iv

6 TABLE OF AUTHORITIES SUPREME COURT OF MISSISSIPPI CASES Allred v. Yarborough 843 So.2d 727 (Miss.2003)...13 Am. Fid. Fire Ins. Co. v. Athens Stove Works, Inc., 481 So.2d 292 (Miss. 1985). 6 Bankston v. Department of Revenue, 95 So.3d 1275 (Miss.Ct.App. 2012) 5 Beatty v. State 627 So.2d 355 (Miss. 1993)...10 Bell v. Mitchell 592 So.2d 528 (Miss.1991)...10 Burch v. Land Partners L.P. 784 So.2d 925 (Miss. 2001). 5 Caldwell v. N. Miss. Med. Ctr. 956 So.2d 888 (Miss.2007) 13 City of Natchez v. Sullivan 612 So.2d 1087 (Miss.1992).. 13 Deposit Guaranty Bank & Trust Co. v. Williams 9 So.2d 638 (Miss. 1942)...10 Dupree v. Carroll 967 So.2d 27 (Miss.2007) In re Guardianship of Duckett 991 So.2d 1165 (Miss.2008)..13 Issaquena Warren Counties Land Co., LLC v. Warren County, 996 So.2d 747 (Miss. 2008). 6 Khurana v. Miss. Dep t. of Revenue 85 So.3d 851 (Miss. 2012)... 9 v

7 McCullen v. Sinclair Refining Co., 41 So. 2d 382 (Miss. 1949) 10 Miss. Dept. of Revenue v. AT&T Corp. 101 So.3d 1139 (Miss. 2012)... 9 Miss. Methodist Hospital and Rehab Cetr. Inc. v. Miss. Div. of Medicaid 21 So.3d 600 (Miss. 2009). 13 Parker v. Bailey 437 So.2d 33 (Miss.1983).. 10 Pope v. Brock 912 So.2d 935 (Miss.2005) Prentiss v. Turner, 155 So. 214 (Miss. 1934).6 Saliba v. Saliba, 753 So.2d 1095 (Miss. 2000)... 5 Southside, Inc. v. Miss. Dep t of Revenue ex rel. Morgan 158 So.3d 277 (Miss. 2014) State ex. rel. Pittman v. Ladner 512 So.2d 1271 (Miss.1987).. 11 State ex rel. Salter v. Board of Sup rs of Bolivar County, 72 So. 700 (Miss. 1916)...6 Stone v. Independent Linen Service Co. 55 So. 2d 165 (Miss. 1951) USPCI of Mississippi Inc. v. State ex rel. McGowen 688 So. 2d 783 (Miss. 1997). 10,11 CONSTITUTIONAL PROVISIONS M.S. CONST. art. 6, STATUTES AND REGULATIONS Miss. Code Ann , 2, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16 vi

8 Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann s. Laws Ch. 476 (H.B. 799), 19, eff. Jan. 1, , 7, 8, 9, 12, 14, 16 vii

9 STATEMENT OF THE ISSUE Whether the Chancellor erred in granting the Mississippi Department of Revenue s Motion to Dismiss for lack of jurisdiction when the Taxpayer failed to post a surety bond in an amount of one-half of the contested tax liability, as required by a version of Miss. Code Ann that was in effect at the time of her original assessment but later revised in 2015 to eliminate this bond requirement. viii

10 STATEMENT OF THE CASE A. Nature of the Case, Course of Proceedings, and Disposition in the Court Below This appeal focuses on the proper administration of the Mississippi Department of Revenue (hereinafter, MDOR ), under Title 27 of the Mississippi Code, as it pertains to providing taxpayers with an avenue for a judicial appeal from orders issued by the Mississippi Board of Tax Appeals under Miss. Code Ann In particular, this appeal implicates the ramifications that certain amendments to the language of this statute have on a taxpayer s right to obtain the jurisdiction of the Mississippi Chancery Courts to hear their pleas and requests for relief. Ms. Marlena Robinson (hereinafter, Ms. Robinson or the Taxpayer ) filed her Petition in the Chancery Court of Hinds County, First Judicial District, on June 1, 2015, requesting that the court vacate the findings of the Mississippi Board of Tax Appeals and find that the Responsible Person Assessment of Sales and Withholding Taxes issued against her are invalid. (Record at 4). In lieu of an answer, MDOR filed its Motion to Dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure on June 25, 2015, attacking the Chancery Court s jurisdiction to hear the case on the merits under Miss. Code Ann (Record at 17). In support of this contention, MDOR asserted that the Taxpayer had not fulfilled the mandatory bond requirements necessary for the Chancery Court to perfect its appellate jurisdiction. Id. The Taxpayer filed her Response in Opposition on June 31, 2015; MDOR filed its Reply on August 6, (Record at 32, 57). Also on June 31 st, the Taxpayer filed her Motion for Leave to Amend, requesting that the Chancellor permit her to post a surety bond to satisfy the disputed jurisdictional issue. (Record at 36). 1

11 After a hearing on this matter, the Chancery Court entered its Order Granting Defendant s Motion to Dismiss (hereinafter, Order ) on March 15, 2016, holding that Ms. Robinson failed to perfect the appellate jurisdiction of the Chancery Court when she failed to post a surety bond, as required by Miss. Code Ann (Rev. 2010). (Record at 62). The Chancery Court also denied the Taxpayer s Motion for Leave to Amend. (Record at 64). Ms. Robinson s Notice of Appeal to the Mississippi Supreme Court followed on April 14, (Record at 65). B. Statement of the Facts The facts and circumstances leading to the Taxpayer s appeal to the Chancery Court, and ultimately this Supreme Court, are relatively undisputed. The following recitation is derived from the Taxpayer s petition for judicial appeal to the Hinds County Chancery Court: The Taxpayer was previously married to Charles David Smith ( Mr. Smith ), and the two parties jointly owned D&M Enterprises, LLC ( D&M ). (Record at 5). A Mississippi limited liability company, D&M was located in Meridian, Mississippi, and served as an automotive and tire repair shop for the local community. Id. Prior to commencement of their dispute with the MDOR, the Taxpayer and Mr. Smith filed a joint complaint for divorce on the grounds of irreconcilable differences on July 3, Id. Subsequently, the divorce was granted and Robinson and Smith entered into a Property Settlement Agreement on August 28, Id. Following this marital dissolution, D&M went out of business in August of 2013 and was administratively dissolved with the Mississippi Secretary of State s office. Id. Prior to August of 2013, D&M was assessed by the MDOR for outstanding sales tax liabilities for the tax periods beginning July 1, 2012, and ending on June 30, Id. In conjunction with this, D&M was also assessed with outstanding withholding tax liabilities for the 2

12 tax periods beginning on March 1, 2012, and concluding June 30, Id. Following the conclusion of this assessment of taxes, MDOR issued a Responsible Person Assessment to Ms. Robinson in a letter dated February 4, Id. Pursuant to the provisions of Miss. Code Ann and , Ms. Robinson was unilaterally deemed to be personally responsible for the outstanding tax liabilities that had been previously assessed to D&M. Id. Accordingly, Ms. Robinson was indebted to MDOR in an amount of $69, for the outstanding sales taxes and $6, for the outstanding withholding taxes. Id. Disagreeing with this conclusion, the Taxpayer appealed the Responsible Person Assessment to the Mississippi Department of Revenue s Board of Review, the first step in the administrative appellate process mandated under Miss. Code Ann Id. Following a hearing on March 10, 2014, the Board of Review issued its order holding that the Taxpayer exercised the level of fiscal responsibility for D&M necessary for the assessment to be affirmed. Id. The Taxpayer then timely appealed the order from the Board of Review to the Mississippi Board of Tax Appeals on January 16, (Record at 6). A hearing was held in front of this Board of Tax Appeals on March 18, 2015, where the Taxpayer presented arguments and evidence to support her contention that she had not exercised responsibility for the fiscal management of D&M. Id. Being unpersuaded, the Board of Tax Appeals upheld the Responsible Person Assessments by an order issued April 1, (Record at 12). Having no other options to adequately contest the assessment of taxes that had been improperly assessed to her, Ms. Robinson filed her Petition with the Hinds County Chancery Court seeking a judicial review of the Board of Tax Appeals order. (Record at 4). 3

13 SUMMARY OF THE ARGUMENT In granting the MDOR s Motion to Dismiss for lack of jurisdiction, the Chancellor incorrectly determined that the Taxpayer s appeal should be governed by an outdated version of Miss. Code Ann which required that a surety bond be posted with the lower court before appellate jurisdiction could be perfected. In making this determination, the MDOR and the Chancellor relied on an ambiguous savings clause drafted in Section 19 of H.B. 799 and later included as an Editor s Note in the final version of that statute. As the plain language of the present version of Miss. Code Ann has clearly abolished this bond requirement, the Taxpayer was under no mandate to post a guaranty bond. For this reason, the dismissal of her appeal was improper. In support of these contentions, the Taxpayer relies on two points: (1) that the benefits of the amended version of Miss. Code Ann should apply retroactively to tax assessments made prior to the effective date of the amendment, and (2) that the purported savings clause found in H.B. 799 is patently ambiguous and therefore unenforceable as it directly contradicts the Mississippi Legislature s intentions. These contentions are amply supported by a litany of Mississippi Supreme Court cases which permit this Court consider revisions to statutes made during the pendency of an appeal. As the Mississippi Legislature clearly sought to remedy the inequities created by the bond requirement in passing H.B. 799, any savings clause precluding the retroactive application of this amendment would be patently ambiguous and irreconcilable with the plain-language reading of the law as it presently exists. Therefore, in support of continuity and taxpayer equity, Ms. Robinson would request that this Court find that her appeal to the Chancery Court should not be predicated on her ability to post an unreasonable surety bond. For these reasons, the Chancellor s determination should be reversed. 4

14 ARGUMENT A. STANDARD OF REVIEW Review of the jurisdiction of a trial court to hear an action is a question of law, thus an appellate court applies a de novo standard of review. Bankston v. Department of Revenue, 95 So.2d 1275 at 1277; Burch v. Land Partners L.P., 784 So.2d 925, 927 (Miss. 2001) (citing Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss. 2000)). B. THE CHANCELLOR ERRED IN GRANTING MDOR S MOTION TO DISMISS THE TAXPAYER S COMPLAINT ON THE BASIS THAT THE TAXPAYER FAILED TO SATISFY THE BOND REQUIREMENT MANDATED UNDER MISS. CODE ANN (REV. 2010). The crux of the issue before this Court concerns whether or not the Chancellor in the lower Chancery Court erred in granting the MDOR s Motion to Dismiss the Taxpayer s claim for want of appellate jurisdiction required by Miss. Code Ann (Rev. 2010). In granting their Motion, the Chancellor held that the Taxpayer s petition for the appellate jurisdiction of the Chancery Court was fatally flawed when it was unaccompanied by a surety bond or payment of the tax under protest. The Taxpayer finds these conclusions to be without merit and inconsolable the state of the law as it current exists. While previous versions of the statute governing these appeals may have mandated the posting of this particular type of surety bond, the law as it reads today is unambiguously clear: a taxpayer shall not be required to post a surety bond to perfect his appeal before the Chancery Court. This revision of the law by the Mississippi Legislature represents a long-overdue remedy owed to the taxpayers of this State in rectifying a blatant deprivation of their rights to an impartial review of tax assessments. For this reason, the Taxpayer takes error with the Chancellor s Order and brings this appeal before the Honorable Justices of this Court. 5

15 1. Because the language of Miss. Code Ann was amended during the pendency of the Taxpayer s appeal, this Court should apply the version of the law as it presently exists. The Mississippi Constitution confers jurisdiction on Chancery Courts to hear [a]ll matters in equity. M.S. CONST. art. 6, 159. Also, the Legislature may not divest courts of powers conferred by the Constitution. Prentiss v. Turner, 155 So. 214 (Miss. 1934); State ex rel. Salter v. Board of Sup rs of Bolivar County, 72 So. 700 (Miss. 1916). To determine whether equity jurisdiction is proper, the face of the complaint is examined to determine the nature of the controversy and the relief sought. Am. Fid. Fire Ins. Co. v. Athens Stove Works, Inc., 481 So.2d 292, 296 (Miss. 1985). As such, equity jurisdiction has been held to extend to an action, initiated by private parties, seeking a declaration regarding the propriety of measures taken by a political subdivision of the State of Mississippi with regard to administration and enforcement of ordinances. Issaquena Warren Counties Land Co., LLC v. Warren County, 996 So.2d 747 (Miss. 2008). By enacting Miss. Code Ann , the Mississippi Legislature has given the Chancery Courts exclusive permission to hear and adjudicate certain tax disputes arising between taxpayers and the Mississippi Department of Revenue, if certain requirements are satisfied. See Miss. Code Ann (Rev. 2015). An appeal to the Chancery Court under this statute represents the final forum for a taxpayer to contest an assessment of taxes made against him by the MDOR and affirmed by the Mississippi Board of Tax Appeals. Id. Miss. Code Ann establishes a two-tier process for tax appeals that would ultimately present a taxpayer with the opportunity to petition the Chancery Court for appellate jurisdiction. See Miss. Code Ann (Rev. 2015). As illustrated in the factual timeline presented above, tier one is the Mississippi Department of Revenue s Board of Review and tier two is the Mississippi Board of Tax Appeals. Id. If a taxpayer s appeal before the Mississippi Board of Tax Appeals proves to 6

16 be unsuccessful, then that order may be appealed to the Chancery Court under Section Miss. Code Ann (Rev. 2015). The present appeal before this Court concerns the Chancery Court s exercise of appellate jurisdiction under Miss. Code Ann and the statutory requirements set forth therein. With regard to this appellate jurisdiction issue, there are two versions of Miss. Code Ann bearing importance to the Taxpayer s appeal: the pre-amendment version of the statute and post-amendment version of the statute. Prior to January 1, 2015, the applicable language of Miss. Code Ann permitted a taxpayer to a file a petition to the Chancery Court appealing an order from the Mississippi Board of Tax Appeals within thirty days from the date of entry of that order. Miss. Code Ann (Rev. 2010). However, this statute also mandated that a taxpayer s petition appealing an order from the Board of Tax Appeals be accompanied by a surety bond in an amount approved by the clerk of the court in a sum half the amount in controversy, conditioned to pay the judgement of the court. Id. at (3) (Rev. 2010). As an alternative to the posting of this bond, a taxpayer could have opted to pay the monetary amount ordered by the Board of Tax Appeals to the MDOR under protest prior to filing of the appeal, and could have opted to seek a refund of the same. Id. During the legislative session in 2014, House Bill No. 799 ( HB 799 ) revised Miss. Code Ann (3), which took effect on January 1, s. Laws Ch. 476 (H.B. 799), 17, eff. Jan. 1, Under this version of the statute, no taxpayer appealing an order of the Board of Tax Appeals shall be required to post a bond or pay a tax under protest in order to obtain appellate jurisdiction before the Chancery Court. Miss. Code Ann (Rev. 2015). This version of the law is still in effect today. 7

17 Although not classified in the general language of the statute as it is exists today, Section 19 of HB 799, presently included as an Editor s Note, states as follows: Nothing in Sections 15, 16 or 17 of this act shall affect or defeat any assessment, refund claim, request for waiver of a tax penalty or claim for tax credits or incentives or the administrative appeal or judicial appeal thereof where the initial date of said assessment, refund claim, tag penalty, claim for tax credits or incentives is before the date on which this act becomes effective. The provisions of the laws relating to the administrative appeal or judicial review of such actions which were in effect prior to the effective date of this act are expressly continued in full force, effect and operation for the purpose of providing an administrative appeal and/or judicial review of any assessment, refund claim, request for waiver of a tag penalty or claim for tax credits or incentives where the initial date of said assessment, refund claim, tag penalty, claim for tax credits or incentives is before the date on which this act becomes effective. 2014s. Laws Ch. 476 (H.B. 799), 19, eff. Jan. 1, (emphasis added). According to the MDOR s interpretation, this unclassified section of HB 799 should be categorized as a savings clause designed to prevent the retroactive application of these amendments. Such a savings clause would preclude a taxpayer who was assessed taxes prior to the effective date of January 1, 2015, from obtaining the benefit of the amended version of the law. In their Motion to Dismiss, the MDOR argued that because the assessment of taxes against Ms. Robinson occurred prior to January 1, 2015, then the savings clause found in Section 19 of HB 799 would prevent her from obtaining the benefits of the amended version of Miss. Code Ann Applying this interpretation, the MDOR contended that the Taxpayer s petition should have been accompanied by a surety bond or she should have paid the taxes under protest in order to obtain jurisdiction before the Hinds County Chancery Court. As the Taxpayer never paid such a bond, this petition should be dismissed pursuant to M.R.C.P. 12(b)(1). 8

18 In its Order, the Court agreed with the MDOR and held that the pre-2015 version of the statute would be the controlling authority, as Section 19 of HB 799 operated as an effective savings clause which foreclosed the retroactive application of the amendments to the statute to assessments made prior to the effective date. Based upon this finding, the Court determined that the Taxpayer s appeal should be dismissed as she failed to comply with the strict language of the law requiring the posting of a requisite surety bond. In support of this, the Chancellor cites to several Mississippi Supreme Court cases that have consistently held that mandatory language, such as that found in the pre-2015 version of Miss. Code Ann , require strict statutory compliance. In particular, the Court references this Court s holding in Miss. Dept. of Revenue v. AT&T Corp, which stands for the proposition that a chancery court lacks jurisdiction overs administrative agency appeals which are not in full compliance with statutory requirements. Miss. Dept. of Revenue v. AT&T Corp., 101 So.3d 1139, 11 (Miss. 2012). The lower court also refers the Taxpayers to this Court s holdings in Khurana v. Miss. Dep t. of Revenue 1 and Southside, Inc. v. Miss. Dep t of Revenue ex rel. Morgan 2. In general, the Taxpayer does not quarrel with this Court s well-established precedent that the appellate jurisdiction of the chancery court is predicated on strict compliance with the statutory authority governing such appeals. However, the chancellor erred in granting the MDOR s Motion to Dismiss because the Taxpayer in this present case fully complied with the statutory requirements of the law as it was in effect at the time of filing the appeal. Because the Mississippi Legislature eliminated the surety bond requirement in passing H.B. 799 and the Taxpayer s appeal was filed after the effective date of that amendment, the Taxpayer should not 1 Khurana v. Miss. Dep t of Revenue, 85 So.3d 851 (Miss. 2012). 2 Southside, Inc. v. Miss. Dep t of Revenue, 158 So.3d 277 (Miss. 2014). 9

19 have been required to post a surety bond in order to perfect her appeal to the Chancery Court. The Taxpayer should have been given the benefit of the amended language of the statute as the Legislature clearly recognized the inequity that resulted from this surety bond requirement. This Court has routinely recognized the proposition that [a]n amended act is ordinarily construed as if the original statute been repealed, and as far any action after the adoption of the amendment is concerned, as if the statute had been originally enacted in its amended for. USPCI of Mississippi Inc. v. State ex rel. McGowen, 688 So. 2d 783, (citing Beatty v. State, 627 So. 2d 355, 357 (Miss. 1993); Stone v. Independent Linen Service Co., 55 So. 2d 165 (Miss. 1951); McCullen v. Sinclair Refining Co., 41 So. 2d 382 (Miss. 1949)). Similarly, this Court has also held that a statute modifying previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modified statute Deposit Guaranty Bank & Trust Co. v. Williams, 9 So.2d 638, 639 (Miss. 1942). However, the Court in this case does note that the retroactive application of an amendment to a statute may be prevented by the inclusion of a savings clause. Id. In USPCI of Mississippi Inc., the Mississippi Supreme Court considered the application of Miss. Code Ann et seq. to the Office of the Governor of the State of Mississippi. USPCI of Mississippi Inc., 688 So.2d at 787. During the pendency of the matter, the Mississippi Legislature amended a portion of the statute that constituted the subject-matter of the case. In its review of this statute, the Court found that [w]hen cases are in the bosom of this Court and there is involved a statute that is modified prior to a final decision of this Court, we take that modification into consideration. 688 So.2d at 787, quoting Bell v. Mitchell, 592 So.2d 528 (Miss.1991), citing Parker v. Bailey, 437 So.2d 33 (Miss.1983). 10

20 In its findings, the Court in USPCI relies on its holding in State ex. rel. Pittman v. Ladner, 512 So.2d 1271 (Miss.1987), when considering the effect of an amended or repealed statute on existing causes. The Court in Ladner stated: [b]ecause the statute has been changed, and because this Court is obliged to act consistent with a rational reading of the legislative declaration, we have as a matter of reason, precedent and choice determined that we should stay our hand from enforcement of that which has been repealed. Ladner, 512 So.2d at This Court, in summarizing the law, determined that: [I]n litigation between the state and an individual, where the operative statute has been repealed or amended and the litigation arises out of a pre-repeal, pre-amendment transaction or occurrence, the individual may claim and be given the benefit of the prior law in effect at the operative time where he regards it more favorable to him. But the converse is not necessarily so. Unless the state holds a contract or otherwise has a vested right, a repealed or amended statute will ordinarily not be enforced against an individual where he regards it as less favorable to him. Ladner, 512 So.2d at Taking this prior precedent into account, the Court in USPCI held that the amended version of the applicable statute would be the controlling authority, as this amendment occurred during the pendency of the appeal. USPCI, 688 So.2d at 787. The Taxpayer would assert that the Court s finding in USPCI would be applicable to their present appeal as the factual and legal circumstances surrounding these matters are reasonably congruent. In the cases described above, this Court found that statutory amendments should be considered when those amendments bear on the outcome of a pending appeal. This is nearly identical to the predicament presently faced by the Taxpayer. When the Responsible Person Assessment was issued to the Taxpayer in February of 2014, the law governing her right to appeal a determination of the Board of Tax Appeals required that she post a surety bond with the chancery court before appellate jurisdiction could be perfected. However, this requirement was 11

21 abdicated by the legislature in the interim period. When the Taxpayer did timely file a petition for her appeal in June of 2015, the law was unequivocal and unambiguous: no surety bond was required. In following the present language of the law, the Taxpayer correctly filed her appeal without posting a surety bond. Applying the legal and factual circumstances set forth above, this Court should hold that the post-amendment version of Miss. Code Ann should be the controlling statute as this statute was amended during the course of the Taxpayer s appeal. To do so would be in the best interest of continuity and equity. 2. The ambiguous language of the purported savings clause described in Section 19 of H.B. 799 should not prevent the retroactive application of this amendment to tax assessments made prior to the effective date of those amendments. In continuing the dispute between the MDOR and Taxpayer over which version of Miss. Code Ann , a question of law arises as to whether or not a purported savings clause, drafted into Section 19 of H.B. 799 and presently located as an Editor s Note in the statute, should prevent the retroactive application of these amendments to assessments made prior to the effective date of January 1, While the MDOR contends that this savings clause is a catchall provision designed to enforce the language of the law as it existed when the original assessment of taxes is made, the Taxpayer would contend that the plain-language reading of the law as it currently exists makes this savings clause obsolete. Because the clear language of the present version of Miss. Code Ann unambiguously eliminates the bond requirement, the catch-all provisions in Section 19 of H.B. 799 are unenforceable. Therefore, the Chancellor erred in finding that the current version of Miss. Code Ann (Rev. 2015) requires that a taxpayer post a surety bond, even if the assessment of the taxes was made prior to January 1,

22 In Miss. Methodist Hospital and Rehab Cetr. Inc. v. Miss. Div. of Medicaid, 21 So.3d 600 (Miss. 2009), this Court elaborates on its protocols for the interpretation of ambiguous statutes. In doing so, it explains that this Court will not engage in statutory interpretation if a statute is plain and unambiguous. Methodist, 21 So.3d at 607 (citing In re Guardianship of Duckett, 991 So.2d 1165, 1181 (Miss.2008); also citing Dupree v. Carroll, 967 So.2d 27, 30 (Miss.2007)). However, statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue. Id. In either case, the ultimate goal of this Court is to discern the legislative intent. Id. (citing Allred v. Yarborough, 843 So.2d 727 (Miss.2003); quoting City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)). The best evidence of legislative intent is the text of the statute; the Court may also look to the statute's historical background, purpose, and objectives. In re Duckett, 991 So.2d at If a statute is ambiguous, it is the Court's duty to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case. Caldwell v. N. Miss. Med. Ctr., 956 So.2d 888, 891 (Miss.2007) (quoting Pope v. Brock, 912 So.2d 935, 937 (Miss.2005)). Applying these principles of statutory interpretation to the present case, it is exceedingly clear that the present language of Miss. Code Ann (Rev. 2015) is unambiguous. A taxpayer, having reviewed the language of this statute as it is presented, could have assuredly relied on the Legislature s intentions to abolish any bond requirement that would have previously been necessary to obtain appellate jurisdiction. As the language of the statute has clearly removed the surety bond requirement, it is not necessary for the Court to attempt to interpret the language of this particular subsection. While the language of subsection 3 of Miss. Code Ann (Rev. 2015) is unambiguously clear that a taxpayer is not required to post a surety bond, there are substantial 13

23 ambiguities in the purported savings clause found in Section 19 of H.B This section, which is not classified in the actual language of the statute, but rather as an Editor s Note attached at the end, purports to prevent the application of these amendments to any assessments made prior to the effective date of the statute January 1, It is through this addendum that the MDOR and the Chancellor root their determinations regarding the applicable law to the Taxpayer s appeal. Miss. Code Ann has been revised three (3) times in the last ten (10) years. Each time the statute was amended, the Mississippi Legislature continued to reduce the bond requirement necessary for a taxpayer to perfect appellate jurisdiction with the Chancery Court. During each of these revisions, the language of the amendments was silent as to the effect the amendments would have on assessments made prior to the effective date of the newest version of the statute. However, each of these revisions also included a similar Editor s Note providing that those changes would not affect or defeat any assessments made prior to the effective date of those revisions. When the Mississippi Legislature finally recognized the inequitable consequences resulting from this surety bond requirement and removed it in its entirety, they included a similar Editor s Note, codified in Section 19 of H.B Taking into account the history of this particular legislation, the Taxpayer would contend that this purported savings clause was a routine inclusion of boilerplate language designed to protect the MDOR s interest in prosecuting assessments made prior to the effective date of the statute. Additionally, this type of provision would allow a taxpayer to properly ascertain the exact amount of a bond that would need to be posted when filing an appeal. However, as the Legislature completely abolished the bond requirement in the 2015 revision, the need for such a savings clause was now obsolete. The Mississippi Legislature clearly recognized the need to 14

24 eliminate the bond requirement that was causing such serious inequities for Taxpayers seeking appeals. As such, a savings clause allowing the flawed portions of Miss. Code Ann to continue in full effect creates an unresolvable ambiguity in its interpretation. It is well established that ambiguity in the tax code must be resolved in favor of the taxpayer. As the language of the statute eliminating the bond is exceedingly clear and the language of savings clause is patently ambiguous, it would only stand to reason that this Court s interpretation of Miss. Code Ann should be against the surety bond requirement and the MDOR. As such, Ms. Robinson should not have been required to post a surety bond prior to appeal. Therefore, the Chancellor s grant of the MDOR s Motion to Dismiss was improper as the Taxpayer had complied with all of the jurisdictional requirements set forth in the most recent version of the law. 15

25 CONCLUSION For the reasons set forth herein, the Chancellor erred in dismissing Ms. Robinson s appeal based on lack of jurisdiction under Miss. Code Ann (Rev. 2010). In finding that the Taxpayer s appeal to the Chancery Court should be dismissed, the Chancellor incorrectly determined that the Taxpayer should be subjected to the bond requirement set forth under a previous version of this Statute. As this Statute was amended in 2015 to eliminate this bond requirement and the purported savings clause found in H.B. 799 should not preclude the retroactive application of this amendment to tax assessments made prior to January 1, 2015, the MDOR s Motion to Dismiss was improper. Ms. Robinson, therefore, prays that this Court reverse the Order Granting Defendant s Motion to Dismiss and remand this matter to the Chancery Court for proceedings on the issues raised in the Taxpayer s Complaint. RESPECTFULLY SUBMITTED this the 13 th day of October, /s/ James G. McGee, Jr. James G. McGee, Jr. (MSB # ) W. Harrison Webb (MSB# ) COUNSEL FOR APPELLANT 16

26 CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that a true and correct copy of the above and foregoing document has been filed electronically via the Mississippi Electronic Court (MEC) filing system which will then send notification to all registered MEC participants including the following: Jon F. Carmer, Jr., Esq. John Stringer, Esq. Mississippi Department of Revenue P. O. Box Jackson, MS Telephone: (601) Facsimile: (601) COUNSEL FOR APPELLEE Hon. William Hale Singletary Hinds County Chancery Court Post Office Box 686 Jackson, MS SO CERTIFIED this the 13 th day of October, /s/ James G. McGee, Jr. James G. McGee, Jr. (MSB # ) COUNSEL FOR APPELLANT 17