Justia.com Opinion Summary: For several years, Plaintiff Housatonic Railroad Company purchased diesel fuel from a petroleum distributor that was used exclusively by Plaintiff as part of its interstate freight rail business. The distributor remitted the petroleum tax to Defendant, the commissioner of revenue services. The distributor separately billed Plaintiff for the amount of tax it paid to the department of revenue services, and Plaintiff paid that amount directly to the distributor. Plaintiff then submitted requests to the department for a refund of the money paid for the petroleum tax by the distributor to the department. The commissioner denied Plaintiff's request. Plaintiff appealed. The trial court granted Defendant's motion to dismiss, concluding that the state was immune from suit because Plaintiff could not establish an exception to sovereign immunity under any of three separate statutory provisions. The Supreme Court affirmed, holding that none of the statutory provisions on which Plaintiff relied permits a rail carrier to bring an action against the state for a refund of taxes paid by a petroleum distributor.
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HOUSATONIC RAILROAD COMPANY,
INC. v. COMMISSIONER OF
REVENUE SERVICES
(SC 18685)
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan,
Eveleigh and Vertefeuille, Js.
Argued February 10—officially released June 28, 2011
Edward J. Rodriguez, with whom was Matthew R.
Whitney, for the appellant (plaintiff).
Rupal Shah Palanki, assistant attorney general, with
whom, on the brief, was Richard Blumenthal, former
attorney general, for the appellee (defendant).
Opinion
ZARELLA, J. This appeal requires us to determine
whether the doctrine of sovereign immunity bars an
action brought against the state by a rail carrier seeking
a refund of amounts paid to a petroleum product distributor to cover the cost of an allegedly discriminatory
petroleum fuel products gross earnings tax (petroleum
tax) imposed on and paid by the distributor. The plaintiff, Housatonic Railroad Company, Inc., appeals1 from
the judgment of the trial court, which granted the
motion of the defendant, the commissioner of revenue
services (commissioner), to dismiss the plaintiff’s
appeal seeking a refund for amounts paid to a fuel
distributor to cover the petroleum tax imposed on the
distributor pursuant to General Statutes § 12-587 (b)
(1). On appeal, the plaintiff claims that the trial court
incorrectly concluded that the state was immune from
suit because the plaintiff could not establish an exception to sovereign immunity under any of three separate
statutory provisions: (1) the federal Railroad Revitalization and Regulatory Reform Act of 1976 (4-R act), Pub.
L. No. 94-210, 90 Stat. 31, which, among other things,
prohibits states from taxing rail carriers in a discriminatory manner; see 49 U.S.C. § 11501 (b) (2006); (2) General Statutes § 12-597, which permits ‘‘[a]ny taxpayer’’
aggrieved by an order or decision of the commissioner
with respect to the imposition of the petroleum tax to
appeal to the Superior Court; and (3) General Statutes
§ 12-33, which permits any aggrieved town or company
to appeal to the Superior Court from an action of the
commissioner. Because we conclude that none of the
statutory provisions on which the plaintiff relies permits
a rail carrier to bring an action against the state for a
refund of taxes paid by a petroleum distributor, we
affirm the judgment of the trial court.
The trial court’s memorandum of decision summarizes the plaintiff’s factual allegations as follows: ‘‘In
its complaint, the plaintiff alleges that [it] is a specially
chartered Connecticut railroad corporation operating
a railroad exclusively as a common carrier of freight
by rail within [this state] and Massachusetts under the
authority of the [federal] Surface Transportation Board
and its predecessor agency, the [federal] Interstate
Commerce Commission.2
‘‘During the period from July 1, 2003, through June 30,
2007, [the plaintiff] purchased diesel fuel in Connecticut
from Sack Distributors Corporation and its predecessor, Stephen H. Sack, [doing business as] Sack Distributors, in [the city of] Hartford . . . .3 The diesel fuel
purchased from the distributor was used exclusively by
[the plaintiff] in its locomotives as part of its interstate
freight rail business. The distributor remitted the [petroleum tax], in the amount of $100,176.91, to the commissioner.’’ The distributor separately billed the plaintiff
for the amount of the tax that it paid to the department
of revenue services (department), and the plaintiff paid
that amount directly to the distributor. Although the
plaintiff did not pay the amount of the fuel purchase
attributed to the petroleum tax directly to the department, the plaintiff submitted requests to the department
for a refund of the money paid for the petroleum tax
by the distributor to the department. The plaintiff based
its request for a refund on its claim that the petroleum
tax discriminated against it because gross earnings from
fuel sold for use in vessels traveling in interstate commerce (water carriers) are exempt from the tax,
whereas gross earnings from fuel sold to rail carriers
are not exempt, in violation of the 4-R act. The commissioner denied the plaintiff’s request for a refund on the
ground that only the distributor, and not the plaintiff,
could request a refund because the distributor, rather
than the plaintiff, had paid the tax in question. The
plaintiff subsequently appealed from the commissioner’s decision to the Superior Court, seeking a refund
of the tax. The commissioner filed a motion to dismiss
the appeal, claiming that the doctrine of sovereign
immunity barred the plaintiff’s action because the plaintiff had not established statutory authority to bring the
appeal, and, therefore, the court did not have subject
matter jurisdiction over the plaintiff’s claim.
The plaintiff responded that it could bring its claim
under any of three separate statutory provisions that
were sufficient to establish an exception to sovereign
immunity: (1) the antidiscrimination provisions of the
4-R act; see 49 U.S.C. § 11501 (2006); (2) § 12-597, which
permits ‘‘[a]ny taxpayer’’ aggrieved by a decision of the
commissioner regarding the imposition of the petroleum tax to appeal from that decision to the Superior
Court; and (3) § 12-33, which permits any town or company aggrieved by an action of the commissioner to
appeal from that action to the Superior Court. Following
a hearing, the trial court granted the commissioner’s
motion to dismiss. The court first concluded that the
plaintiff could not appeal under § 12-33 because § 12597, which applies expressly to appeals relating to the
imposition of the petroleum tax, was the controlling
statute for purposes of such appeals. The court next
concluded that the plaintiff could not appeal under § 12597 because the plaintiff was not a ‘‘taxpayer’’ within
the meaning of that statute insofar as it was not liable
for the tax and did not pay the tax to the department.
The court instead concluded that only fuel distributors
are taxpayers for purposes of § 12-597 and that, because
the plaintiff was not a fuel distributor, it could not
establish that the state had waived its immunity with
respect to the plaintiff’s claim under that provision.
Finally, the court concluded that the plaintiff could
not assert its claim against the state under the 4-R act
because that act prohibited only discriminatory ad valorem taxes on property and did not apply to taxes on
gross earnings of fuel distributors. Having concluded
that none of the statutes on which the plaintiff relied
permitted it to bring its claim, the court concluded that
the doctrine of sovereign immunity barred the plaintiff’s
appeal. The court granted the commissioner’s motion
to dismiss the plaintiff’s appeal and rendered judgment
in the commissioner’s favor. This appeal followed.
On appeal to this court, the plaintiff claims that,
because the state has consented to such claims, the trial
court incorrectly concluded that the plaintiff’s claim
for a refund was barred by the doctrine of sovereign
immunity. In support of this argument, the plaintiff
renews the argument that it made in the trial court,
namely, that its claim is maintainable on three separate
and independent grounds. The plaintiff first contends
that the claim is permitted by the 4-R act, which abrogates a state’s sovereign immunity from claims brought
by rail carriers seeking relief from discriminatory taxes.
The plaintiff next contends that §§ 12-33 and 12-597
each provide statutory authority for the plaintiff to bring
its claim for a refund against the state. The commissioner argues that none of the provisions on which the
plaintiff relies entitles it to bring its claim against the
state and, therefore, that the trial court properly granted
the commissioner’s motion to dismiss on the basis of
sovereign immunity. We agree with the commissioner.
We begin with the standard of review of a trial court’s
decision to grant a motion to dismiss and the applicable
principles governing the doctrine of sovereign immunity. ‘‘A motion to dismiss . . . properly attacks the
jurisdiction of the court, essentially asserting that the
plaintiff cannot as a matter of law and fact state a cause
of action that should be heard by the court. . . . [T]he
doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a
motion to dismiss.’’ (Citation omitted; internal quotation marks omitted.) C. R. Klewin Northeast, LLC v.
State, 299 Conn. 167, 174–75, 9 A.3d 326 (2010).
‘‘Sovereign immunity relates to a court’s subject matter jurisdiction over a case . . . and therefore presents
a question of law over which we exercise de novo
review. . . . The principle that the state cannot be sued
without its consent, or sovereign immunity, is well
established under our case law. . . . It has deep roots
in this state and our legal system in general, finding its
origin in ancient common law. . . . Exceptions to this
doctrine are few and narrowly construed under our
jurisprudence.’’ (Internal quotation marks omitted.)
DaimlerChrysler Corp. v. Law, 284 Conn. 701, 711, 937
A.2d 675 (2007). To ‘‘ ‘overcome the presumption of
sovereign immunity’ ’’; id.; a plaintiff seeking to bring
a claim against the state must establish that an exception to the doctrine applies. See id., 711–12.
I
The plaintiff first asserts that it may bring its claim
for a refund under the 4-R act and argues that the trial
court incorrectly concluded that the 4-R act prohibits
only discriminatory property taxes and not petroleum
taxes. In support of its claim, the plaintiff argues that,
in addition to prohibiting discriminatory property taxes,
49 U.S.C. § 11501 (b) (4) expressly prohibits states from
‘‘impos[ing] another tax that discriminates against a rail
carrier’’ and that this includes discriminatory petroleum
taxes. The plaintiff further argues that the state cannot
assert a sovereign immunity defense in response to a
claim brought under the 4-R act because Congress has
abrogated this immunity. The commissioner responds
that, although the 4-R act does permit rail carriers to
bring claims against the state for violations of that act,
the act provides for injunctive or declaratory relief only
and not a tax refund, as the plaintiff seeks. For this
reason, the commissioner claims that the state retains
its immunity from actions seeking refunds.4 Although
we agree with the plaintiff that the 4-R act does permit
it to bring a claim against the state for the imposition
of discriminatory petroleum taxes, we affirm the judgment of the trial court on the alternative ground that
the 4-R act permits the plaintiff to bring an action for
injunctive or declaratory relief only and not for a refund
of taxes already paid. Therefore, the state is immune
from such claims notwithstanding the provisions of the
4-R act.
The 4-R act permits private rail carriers to bring an
action against a state for violations of the act, including
those states that do not otherwise consent to be sued
by private parties (nonconsenting states), because Congress has abrogated the sovereign immunity of nonconsenting states pursuant to its enforcement powers
under § 5 of the fourteenth amendment to the United
States constitution.5 As a general rule, the doctrine of
sovereign immunity prohibits Congress from expanding
the jurisdiction of state courts to allow actions by private parties against nonconsenting states just as the
eleventh amendment to the United States constitution6
prohibits Congress from expanding the jurisdiction of
federal courts to allow such actions. See Alden v.
Maine, 527 U.S. 706, 754, 119 S. Ct. 2240, 144 L. Ed.
2d 636 (1999). There is, however, an exception to this
general rule that allows Congress to enforce the provisions of the fourteenth amendment to the United States
constitution by expanding the jurisdiction of state or
federal courts to allow actions by private parties against
nonconsenting states. Section 5 of the fourteenth
amendment empowers Congress to enforce that amendment through ‘‘appropriate legislation . . . .’’ Through
these enforcement powers, Congress may abrogate the
sovereign immunity of a nonconsenting state because,
‘‘in adopting the [f]ourteenth [a]mendment, the people
required the [s]tates to surrender a portion of [their
sovereign immunity] . . . .’’ Alden v. Maine, supra, 756.
Courts will uphold federal legislation passed pursuant
to this enforcement power as long as (1) ‘‘Congress
[has] identified a history and pattern of unconstitutional
discrimination by the states against the [nonsuspect]
class’’ that the legislation protects, and (2) the scope
of the legislation and the relief provided are ‘‘congruent
and proportional’’ to the harm caused by the discrimination. CSX Transportation, Inc. v. New York State Office
of Real Property Services, 306 F.3d 87, 97 (2d Cir. 2002).
Using this test, courts that have examined the 4-R act
have concluded that it is a valid exercise of Congress’
enforcement powers under § 5 of the fourteenth amendment and that it thereby abrogates a nonconsenting
state’s immunity from actions brought pursuant to the
act. See, e.g., id., 96–98.7 Because the state is not
immune from claims by private rail carriers that are
authorized by the provisions of the 4-R act, we must
determine whether the plaintiff’s claim is permitted by
that act.
We begin our review with the decision of the trial
court in the present case, which dismissed the plaintiff’s
appeal, in part because the 4-R act prohibits only discriminatory ad valorem taxes on property and not petroleum taxes. We conclude that the trial court improperly
dismissed the plaintiff’s appeal on that basis.
When construing the scope of a federal law, we look
to the text of the statute at issue. See, e.g., CSX Transportation, Inc. v. Alabama Dept. of Revenue,
U.S.
, 131 S. Ct. 1101, 1107, 179 L. Ed. 2d 37 (2011). The
portion of the 4-R act at issue in this appeal, namely,
49 U.S.C § 11501 (b), provides in relevant part: ‘‘The
following acts unreasonably burden and discriminate
against interstate commerce, and a State, subdivision
of a State, or authority acting for a State or subdivision
of a State may not do any of them . . . .’’ The statute
then sets forth four specific prohibitions on state tax
authority. The first three provisions prohibit the imposition of ad valorem taxes on railroad property that discriminate against railroads as compared to other
commercial and industrial property. See 49 U.S.C.
§ 11501 (b) (1) through (3) (2006).8 The text of the fourth
prohibition uses language that is much broader than
the first three subdivisions and provides that a state may
not ‘‘[i]mpose another tax that discriminates against
a rail carrier providing transportation subject to the
jurisdiction of the [Surface Transportation] Board
. . . .’’9 49 U.S.C. § 11501 (b) (4) (2006). Federal appellate courts have long interpreted this provision to apply
to any type of discriminatory tax. See, e.g., Burlington
Northern R. Co. v. Superior, 932 F.2d 1185, 1186 (7th
Cir. 1991) (‘‘Subsection [b] [4] [of 49 U.S.C. § 11501] is
a catch-all designed to prevent the state from accomplishing the forbidden end of discriminating against railroads by substituting another type of tax. It could be
an income tax, a gross-receipts tax, a use tax, an occupation tax . . . whatever.’’). The United States Supreme
Court upheld this commonly accepted reading of 49
U.S.C. § 11501 (b) (4) in a recent decision. See CSX
Transportation, Inc. v. Alabama Dept. of Revenue,
supra, 1107–1109. In CSX Transportation, Inc., the
court concluded that 49 U.S.C. § 11501 (b) (4) permitted
an interstate rail carrier to maintain a claim of discriminatory taxation against the state of Alabama arising
from a tax that applied to the sale or use of diesel fuel
to or by rail carriers where Alabama exempted from
taxation diesel fuel sold to interstate motor and water
carriers. Id., 1106, 1114.
In the present case, the plaintiff alleges that the state
imposed a tax on the gross earnings of fuel distributors
from the sale of fuel to rail carriers but exempted from
taxation gross earnings from the sale of fuel to water
carriers and that this tax resulted in the plaintiff having
to pay a higher price for fuel.10 In view of the similarity
between the plaintiff’s allegations in the present case
and the claims of the interstate rail carrier in CSX
Transportation, Inc., we conclude that the trial court
incorrectly dismissed the plaintiff’s appeal on the
ground that the 4-R act applies only to ad valorem taxes
on property.11
Although we conclude that the 4-R act applies to
discriminatory petroleum taxes, we further conclude
that the 4-R act does not permit courts to order refunds
of taxes already paid to the state, as the plaintiff seeks
in the present case; instead, it permits only prospective
relief, such as injunctive or declaratory relief. The text
of subsection (c) of 49 U.S.C. § 11501 provides in relevant part: ‘‘Notwithstanding section 1341 of title 2812
and without regard to the amount in controversy or
citizenship of the parties, a district court of the United
States has jurisdiction, concurrent with other jurisdiction of courts of the United States and the States, to
prevent a violation of subsection (b) of this section.
. . .’’ (Emphasis added.) Although the statute does not
delineate the specific types of remedies that courts may
order ‘‘to prevent’’ violations of 49 U.S.C. § 11501 (b),
we believe that a fair reading of this provision limits
the remedies available under this section to those that
are prospective in nature, including injunctive or declaratory relief. Indeed, nothing in this provision mentions
or confers on courts the power to grant remedies for
past violations. In the present case, however, the plaintiff seeks a refund of taxes that already have been paid,
allegedly in violation of the 4-R act, and it does not
seek to enjoin the future collection of the tax at issue.13
Because the 4-R act does not provide for refunds of
taxes already paid, the plaintiff’s request for relief
exceeds that permitted under the 4-R act.
The plaintiff urges us to allow a claim for a refund
because nothing in the 4-R act expressly limits the
power of state courts to order refunds. In support of
this argument, the plaintiff asserts that Congress may
‘‘confer jurisdiction to state courts to grant whatever
remedy the state court deems appropriate.’’ Although
we agree that Congress may invoke its enforcement
powers under § 5 of the fourteenth amendment to provide for appropriate relief; see, e.g., Alden v. Maine,
supra, 527 U.S. 756; we disagree with the plaintiff that
we may expand the relief available under the 4-R act
simply because Congress has not expressly prohibited
such relief.
The 4-R act constitutes congressional interference
with state tax authority and is in derogation of the
doctrine of sovereign immunity, which requires a narrow reading of the reach of that act and the types of
relief available. The United States Supreme Court has
recognized that the taxing authority of a state government is a key component of a state’s sovereignty. See
Dept. of Revenue v. ACF Industries, Inc., 510 U.S. 332,
345, 114 S. Ct. 843, 127 L. Ed. 2d 165 (1994). Because
the 4-R act ‘‘sets limits [on] the taxation authority of
state government’’; id.; the United States Supreme Court
has cautioned that the scope of the act should not be
expanded beyond that provided for by Congress. See
id. (declining to ‘‘extend the [4-R act] beyond its evident
scope’’ because it ‘‘sets limits [on] the taxation authority
of state government’’); see also CSX Transportation,
Inc. v. Alabama Dept. of Revenue, supra, 131 S. Ct. 1112
(reiterating principle that courts should not ‘‘ ‘extend’ ’’
4-R act beyond its clear meaning). See generally Scarborough v. Principi, 541 U.S. 401, 426, 124 S. Ct. 1856,
158 L. Ed. 2d 674 (2004) (‘‘a waiver of sovereign immunity must be construed strictly in favor of the sovereign
and not enlarge[d] . . . beyond what the language
requires’’ [internal quotation marks omitted]), quoting
United States v. Nordic Village, Inc., 503 U.S. 30, 34,
112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992). The only form
of relief provided for in the 4-R act is the power to
‘‘prevent’’ violations of the act. 49 U.S.C. § 11501 (c)
(2006). Because nothing in the 4-R act provides for
retroactive relief, and because the reach of the 4-R act
should not be expanded ‘‘beyond its evident scope’’;
Dept. of Revenue v. ACF Industries, Inc., supra, 345;
we decline to expand the reach of that act by adding
remedies not expressly provided for by Congress.14
In support of its argument that courts may order tax
refunds because the 4-R act does not expressly prohibit
such a remedy, the plaintiff cites to a federal decision
in which the court concluded that the 4-R act did not
prevent courts from ordering refunds. Atchison,
Topeka & Santa Fe Railway Co. v. Lennen, 732 F.2d
1495 (10th Cir. 1984). In Lennen, the Tenth Circuit Court
of Appeals, construing an earlier version of the 4-R act,15
concluded that, although the text of the act expressly
permitted only injunctive or declaratory relief, tax
refunds nevertheless might be permitted because the
court was ‘‘unwilling to infer’’ a restriction on such a
remedy. Id., 1507. The court ultimately declined, however, to order a refund on the basis of the facts of that
case. See id. In reaching its conclusion that refunds
might be permitted because the language of the 4-R act
did not expressly prohibit refunds, the Tenth Circuit
relied on a decision of the United States Supreme Court
that permitted a court to use its equitable powers to
craft a remedy for a violation of a federal antidiscrimination law by a private employer even though Congress
had permitted courts only to ‘‘restrain’’ violations of
that law. (Internal quotation marks omitted.) Id., 1506,
quoting Mitchell v. Robert DeMario Jewelry, Inc., 361
U.S. 288, 291, 80 S. Ct. 332, 4 L. Ed. 2d 323 (1960).
We disagree with and decline to follow the decision
in Lennen for two reasons. First, we disagree with the
court’s reliance on Mitchell because that case did not
address the availability of remedies against a sovereign.
In Mitchell, the court addressed a claim for restitution
for lost wages against a private employer under a different federal statute. See Mitchell v. Robert DeMario Jewelry, Inc., supra, 361 U.S. 289–90. Although the federal
statute at issue in Mitchell appeared to permit courts
only to ‘‘ ‘restrain’ ’’ violations of the law; id., 289; the
court concluded that, ‘‘[u]nless a statute in so many
words, or by a necessary and inescapable inference,
restricts the court’s jurisdiction in equity, the full scope
of that jurisdiction is to be recognized and applied.’’
(Internal quotation marks omitted.) Id., 291. Unlike the
claim in Mitchell, which related to employment discrimination and was brought against a private employer,
the claim in the present case was brought against the
state and involves matters of state tax authority. As
we discussed previously, United States Supreme Court
cases decided after Lennen demonstrate that states
generally are immune from congressional interference
on issues of state tax authority, a principle that dictates
a narrow construction of the 4-R act. The Lennen court’s
reliance on Mitchell to expand the remedies available
under the 4-R act by allowing for remedies not specifically provided for by Congress appears to contravene
this principle. See General American Transportation
Corp. v. Limbach, Docket No. C-2-85-1603, 1987 WL
288146, *15 (S.D. Ohio December 28, 1987) (questioning
validity of court’s conclusion in Lennen regarding availability of tax refund under 4-R act); see also Kansas
City Southern Railway Co. v. Borrowman, Docket No.
09-3094, 2009 WL 3188305, *5 n.2 (C.D. Ill. September
30, 2009) (questioning applicability of Mitchell to issue
of remedies available under 4-R act).
Second, subsequent decisions regarding the relief
available under the 4-R act demonstrate that the prevailing view among courts is that the act permits only
injunctive or declaratory relief. The very same federal
circuit court of appeals that concluded in Lennen that
refunds might be allowed under the 4-R act indicated
in a subsequent decision that the 4-R act permits only
injunctive relief, contrary to its earlier decision. See
Union Pacific R. Co. v. Utah, 198 F.3d 1201, 1208 (10th
Cir. 1999). In Union Pacific R. Co., the court concluded
that the 4-R act constituted a valid and reasonable exercise of Congress’ authority under § 5 of the fourteenth
amendment to abrogate a state’s sovereign immunity.
Id., 1209. It reached its conclusion in part on the basis
that the remedy provided by the 4-R act was a congruent
and proportional response to discrimination against rail
carriers because ‘‘the [4-R] [a]ct permits only injunctive
relief . . . .’’ Id., 1208. The Tenth Circuit Court of
Appeals reiterated this position in a subsequent case
in which that court declined to overturn its holding in
Union Pacific R. Co. See Burlington Northern & Santa
Fe Railway Co. v. Burton, 270 F.3d 942, 946–47 (10th
Cir. 2001), cert. denied sub nom. Atwood v. Burlington
Northern & Santa Fe Railway Co., 536 U.S. 959, 122
S. Ct. 2664, 153 L. Ed. 2d 838 (2002). The Second Circuit
Court of Appeals, in addressing the same issue as the
court in Union Pacific R. Co., also based its conclusion
that the 4-R act was a valid exercise of congressional
power in part on the basis that ‘‘Congress fashioned a
congruent and proportional remedy in the 4-R [a]ct’’
because the act authorizes rail carriers ‘‘only to seek
injunctive relief as to the amount in excess of that
allowable under the 4-R [a]ct.’’ CSX Transportation,
Inc. v. New York State Office of Real Property Services,
supra, 306 F.3d 97.16 Decisions of the federal district
courts also reflect this trend. See, e.g., Kansas City
Southern Railway Co. v. Borrowman, supra, 2009 WL
3188305, *5 n.2 (‘‘[T]raditional principles of comity and
restraint require the [c]ourt to construe [49 U.S.C.]
§ 11501 narrowly. . . . Section 11501 [c] [of title 49 of
the United States Code] gives [the] [c]ourt the power
to prevent a violation of [49 U.S.C.] § 11501 [b] . . .
and will not be interpreted as an indication that federal
district courts may open state coffers to plaintiff [rail
carriers] seeking refunds of past tax payments.’’ [Citation omitted; emphasis in original; internal quotation
marks omitted.]); General American Transportation
Corp. v. Limbach, supra, 1987 WL 288146, *15 (‘‘the
[c]ourt is extremely hesitant to ignore the proscription
of the [4-R act] which by its terms plainly would seem to
limit relief to a prospective remedy only’’); Burlington
Northern R. Co. v. Bair, 584 F. Sup. 1229, 1231–32 (S.D.
Iowa 1984) (declining to order refund under 4-R act
because language of act ‘‘does not provide for tax payment refunds,’’ ‘‘[p]rinciples of comity mandate a narrow construction of the relief provision’’ of the act, and
any intent to abrogate state immunity from claim for
refund ‘‘must be clear from the language of the law
enacted’’), rev’d in part on other grounds, 766 F.2d 1222
(8th Cir. 1985).17
For the foregoing reasons, we conclude that Congress, in exercising its enforcement powers under § 5 of
the fourteenth amendment, permitted courts to provide
only injunctive or declaratory relief to prevent violations of the antidiscrimination provisions of the 4-R act
and that Congress did not abrogate the state’s immunity
from claims seeking refunds for taxes already paid.
Therefore, we conclude that the trial court properly
rejected the plaintiff’s contention that it could bring
its claim for a refund under the 4-R act, albeit on the
alternative ground that the plaintiff’s claim falls outside
the scope of the 4-R act because that act empowers
courts to provide only injunctive or declaratory relief.
II
In light of our conclusion that the 4-R act does not
permit the plaintiff to assert its claim for a refund, we
turn next to the plaintiff’s argument that such a remedy
is permitted under state law. Because the 4-R act does
not allow the plaintiff to assert its claim for a refund,
the plaintiff must demonstrate that the legislature has
permitted the plaintiff to obtain the relief that it seeks
pursuant to state law. The plaintiff contends that it may
seek a refund from the state because § 12-597, which
permits taxpayers to appeal to the Superior Court from
decisions of the commissioner regarding the petroleum
tax, establishes that the legislature has waived the
state’s immunity from such claims. The plaintiff argues
that, contrary to the claim of the commissioner, it is
entitled to seek a refund of the amount of the petroleum
tax paid by the distributor on the distributor’s gross
earnings from the sale of petroleum products to the
plaintiff because the distributor billed the plaintiff for
the amount of this tax.18 Because the plaintiff paid the
distributor the amount of the distributor’s petroleum
tax, it argues that it has assumed the economic burden
of the tax and is therefore a taxpayer within the meaning
of § 12-597. The commissioner argues that the plaintiff
may not bring this claim under § 12-597 because that
statute permits only ‘‘taxpayers’’ to appeal from decisions of the commissioner regarding the petroleum tax
and the plaintiff in this case is not a taxpayer. In support
of this argument, the commissioner asserts that it is
irrelevant that the distributor billed the plaintiff for the
amount of the tax because the petroleum tax statutes
explicitly provide that the tax is levied on and collectible
only from the distributor and not the purchaser.
Because the plaintiff was not liable for the tax and did
not pay the tax to the department, the commissioner
maintains that the plaintiff cannot be considered a ‘‘taxpayer’’ within the meaning of § 12-597. We agree with
the commissioner.
Because the plaintiff has asserted a claim against the
state seeking money damages from the state treasury
and is contending that the state has statutorily waived
its immunity, we first set forth the well established
principles governing statutory waivers of sovereign
immunity.19 ‘‘[A] litigant that seeks to overcome the
presumption of sovereign immunity [pursuant to a statutory waiver] must show that . . . the legislature,
either expressly or by force of a necessary implication,
statutorily waived the state’s sovereign immunity . . . .
In making this determination, [a court shall be guided
by] the well established principle that statutes in derogation of sovereign immunity should be strictly construed. . . . [When] there is any doubt about their
meaning or intent they are given the effect which makes
the least rather than the most change in sovereign
immunity.’’ (Internal quotation marks omitted.) DaimlerChrysler Corp. v. Law, supra, 284 Conn. 711–12. Furthermore, ‘‘because such statutes are in derogation of
the common law, [a]ny statutory waiver of immunity
must be narrowly construed . . . and its scope must
be confined strictly to the extent the statute provides.’’
(Citation omitted; internal quotation marks omitted.)
Mahoney v. Lensink, 213 Conn. 548, 555–56, 569 A.2d
518 (1990). ‘‘We conduct this inquiry mindful that [an
appeal pursuant to § 12-597 may require] that the [commissioner] refund certain taxes . . . thereby imposing
a monetary obligation on the sovereign, and thus it is
essential for its requirements to be satisfied.’’ (Citation
omitted.) DaimlerChrysler Corp. v. Law, supra, 716.
Whether the legislature has waived the state’s sovereign immunity raises a question of statutory interpretation. See, e.g., First Union National Bank v. Hi Ho
Mall Shopping Ventures, Inc., 273 Conn. 287, 291, 869
A.2d 1173 (2005). General Statutes § 1-2z provides: ‘‘The
meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and
considering such relationship, the meaning of such text
is plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the meaning of the statute shall not be considered.’’ In accordance with these principles, we turn to the text of
the statute.
The text of § 12-597 imposes a requirement of taxpayer status on any party seeking to appeal from a
decision of the commissioner regarding the petroleum
tax. General Statutes § 12-597 provides in relevant part:
‘‘Any taxpayer aggrieved because of any order, decision, determination or disallowance of the [c]ommissioner . . . made in relation to the [petroleum] tax
imposed under section 12-587 may . . . take an appeal
therefrom to the superior court . . . .’’ (Emphasis
added.) The language expressly grants a right to appeal
only to a ‘‘taxpayer’’ who is aggrieved by a decision of
the commissioner regarding the petroleum tax; it does
not grant such a right to anyone else. Therefore, to
bring an appeal pursuant to this provision, the plaintiff
must demonstrate that it is an aggrieved ‘‘taxpayer,’’ as
that term is used in the statute. See, e.g., DaimlerChrysler Corp. v. Law, supra, 284 Conn. 716–17 (concluding that plaintiff was not ‘‘ ‘taxpayer’ ’’ within meaning of General Statutes § 12-422, another tax appeal
statute, and therefore ‘‘did not fall within the class of
persons . . . for whom the legislature waived sover-
eign immunity’’).
Section 12-597 and the remaining provisions of the
chapter governing the petroleum tax do not define the
term ‘‘taxpayer,’’ and, therefore, we construe that term
according to its common usage. See, e.g., Potvin v.
Lincoln Service & Equipment Co., 298 Conn. 620, 633,
6 A.3d 60 (2010) (‘‘When a statute does not provide a
definition, words and phrases in a particular statute are
to be construed according to their common usage. . . .
To ascertain that usage, we look to the dictionary definition of the term.’’ [Internal quotation marks omitted.]);
see also General Statutes § 1-1 (a). When a statute has
failed to define the term ‘‘taxpayer,’’ we generally have
used the definition that a taxpayer is ‘‘one that pays or
is liable for a tax.’’ (Internal quotation marks omitted.)
Bell Atlantic NYNEX Mobile, Inc. v. Commissioner of
Revenue Services, 273 Conn. 240, 256 n.16, 869 A.2d
611 (2005), quoting Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993); accord DaimlerChrysler Corp.
v. Law, supra, 284 Conn. 716; see also Webster’s Third
New International Dictionary (defining ‘‘taxpayer’’ as
‘‘one that pays or is liable to pay a tax’’).
Using this definition, we previously have concluded
that the term ‘‘taxpayer’’ generally includes only those
individuals or entities that are legally required to pay or
collect the amount of a tax and that the term ‘‘taxpayer’’
does not include those individuals or entities that
merely assume the intended taxpayer’s economic tax
burden. See DaimlerChrysler Corp. v. Law, supra, 284
Conn. 716–17. In DaimlerChrysler Corp., we concluded
that the plaintiff automobile manufacturer (manufacturer) could not establish a right to appeal from the
commissioner’s rejection of a request for a refund of
state sales tax that it had paid to consumers pursuant
to the state’s lemon law because it was not a taxpayer,
even though it had assumed the economic burden of
the tax that originally was collected from the consumer.
See id., 703–704, 716–17. In that case, the manufacturer
refunded all costs to consumers who had returned their
defective automobiles, including amounts that the consumer had paid to satisfy this state’s tax on the retail
sale of automobiles. Id., 705. The retail sales tax is
imposed on retailers, but retailers collect the amount
of the tax from consumers, generally at the time of the
sale. See General Statutes § 12-408 (1) and (2). Although
the manufacturer was neither the retailer that collected
the tax at the time of the sale nor the consumer required
to pay the tax, it nevertheless filed a request with the
commissioner for a refund of the amounts that it had
paid to consumers after they had returned the defective
automobiles to reimburse the consumers for their payment of the tax, suggesting that it was entitled to such
a refund because it had assumed the economic burden
of the tax. See id., 707. The commissioner denied the
request; see id., 706; and the manufacturer appealed to
the trial court, which rendered judgment dismissing the
manufacturer’s appeal, in part because the manufacturer was not a ‘‘taxpayer’’ within the meaning of § 12422, the sales tax appeals statute. Id., 709. We upheld
the trial court’s decision because, although the manufacturer had assumed the consumers’ economic burden
of the sales tax, the manufacturer was not a taxpayer
in that it was neither the consumer who purchased the
automobile nor the retailer that sold it, and, therefore,
it was not legally obligated to collect or pay the sales
tax. See id., 716–17; see also id., 717 (‘‘because the
[manufacturer] alleges neither that it was the purchaser
of the vehicles subject to the sales tax . . . nor that it
was responsible for the payment of the original sales
tax at the time of the original purchase giving rise to the
sales tax, we cannot conclude that it was an aggrieved
taxpayer under § 12-422’’).
Thus, consistent with the definition of taxpayer and
our decision in DaimlerChrysler Corp., we must determine whether the plaintiff in the present case was
legally liable either to pay or collect the amount of the
petroleum tax. Because the answer to this question is
not manifest in § 12-597 alone, we look to other provisions in chapter 227 of the General Statutes—the chapter governing the petroleum tax—to determine whether
the plaintiff is a payer of the petroleum tax. See General
Statutes § 1-2z (requiring courts construing statute to
consider its relationship to other statutes).
Other provisions in chapter 227 demonstrate that a
purchaser of petroleum products is not a payer of the
petroleum tax because it is not liable for and does not
pay that tax. The petroleum tax is imposed on and
collected only from distributors of petroleum products,
not the purchasers of such products. General Statutes
§ 12-587 (b) (1) provides in relevant part that ‘‘any company which is engaged in the refining or distribution,
or both, of petroleum products and which distributes
such products in this state shall pay a quarterly tax on its
gross earnings derived from the first sale of petroleum
products within this state. . . .’’ With one exception
that does not impact our resolution of this appeal,20
nothing in § 12-587, or any other provision of chapter
227, imposes this tax on the purchaser of petroleum
products, and no provision requires the purchaser to
pay such tax. Because purchasers of petroleum products are not liable for and are not required to pay the
petroleum tax, we cannot conclude that such purchasers are taxpayers within the meaning of § 12-597.
Indeed, the legislature included a specific statutory
provision expressing its intent that the petroleum tax
is not to be construed as a tax on the purchaser. General
Statutes § 12-599 (a) provides: ‘‘It is not the intention
of the General Assembly that the tax imposed under
section 12-587 be construed as a tax upon purchasers
of petroleum products, but that such tax shall be levied
upon and be collectible from petroleum companies as
defined in said section 12-587, and that such tax shall
constitute a part of the operating overhead of such
companies.’’ This statutory command that we not construe the petroleum tax as being ‘‘levied upon’’ the purchasers of petroleum products precludes us from
concluding that such purchasers are liable for the tax.
Furthermore, we cannot construe the petroleum tax as
being paid by the purchasers of such products because
we may construe the tax as being collectible from only
distributors of petroleum products and not from purchasers at the time of sale. Compare General Statutes
§ 12-599 (a) (petroleum tax to be construed as tax on
and collectible from seller only) with General Statutes
§ 12-408 (1) and (2) (retail sales tax imposed on seller
but collectible from purchaser). Thus, to conclude that
the purchaser of petroleum products is a taxpayer
within the meaning of § 12-597 would contradict the
intent of the legislature, as expressed in § 12-599 (a),
and such a construction would violate both the plain
meaning rule; see General Statutes § 1-2z; and the doctrine of sovereign immunity. See DaimlerChrysler
Corp. v. Law, supra, 284 Conn. 717; see also id., 716
(‘‘[a]ny statutory waiver of immunity must be narrowly
construed . . . and its scope must be confined strictly
to the extent the statute provides’’ [internal quotation
marks omitted]).
In addition to expressing the legislature’s intent
regarding the construction of the provisions concerning
the imposition of the petroleum tax, § 12-599 also prohibits petroleum distributors from passing on the cost
of the petroleum tax to purchasers by raising the prices
of their petroleum products in this state. See General
Statutes § 12-599 (b) (prohibiting petroleum companies
from raising ‘‘wholesale rack price’’ of their petroleum
products ‘‘by an amount higher than the average amount
by which such company raises its wholesale rack price
for such product in all ports on the eastern coast of the
United States’’). This provision is commonly referred to
as an ‘‘anti-passthrough provision . . . .’’ Mobil Oil
Corp. v. Dubno, 639 F.2d 919, 920 (2d Cir.), cert. denied,
452 U.S. 967, 101 S. Ct. 3122, 69 L. Ed. 2d 980 (1981).
Subsequent to this state’s adoption of the petroleum
tax, which included the anti-passthrough provision; see
Public Acts 1980, No. 80-71, §§ 1 and 13 (P.A. 80-71);
the United States District Court for the District of Connecticut declared the anti-passthrough provision of P.A.
80-71, § 13, unconstitutional on the ground that it violated the supremacy clause of the United States constitution; see U.S. Const., art. VI, cl. 2; inasmuch as the
federal government had preempted the states from regulating prices of petroleum products. Mobil Oil Corp.
v. Dubno, 492 F. Sup. 1004, 1013–14 (D. Conn. 1980),
aff’d in part and appeal dismissed in part, 639 F.2d 919
(2d Cir.), cert. denied, 452 U.S. 967, 101 S. Ct. 3122, 69
L. Ed. 2d 980 (1981). After the District Court declared
the state anti-passthrough provision unconstitutional,
petroleum products distributors began to pass the cost
of the petroleum tax on to the purchasers of such products, often in the form of a separate charge, itemized
on a sales invoice. See Texaco Refining & Marketing
Co. v. Commissioner of Revenue Services, 202 Conn.
583, 585, 522 A.2d 771 (1987).
The fact that the anti-passthrough provision in § 12599 (b) has been held to be unconstitutional and that
distributors are passing on the cost of the petroleum tax
to purchasers does not, however, alter the legislature’s
intent, as expressed in § 12-599 (a), that the petroleum
tax is not to be construed as a tax on purchasers. Indeed,
we previously have addressed and rejected such an
argument. See id., 595 (‘‘the unenforceability of § 12599 [b], for constitutional reasons, does not disturb the
legislative intent, manifested in § 12-599 [a]’’). In Texaco
Refining & Marketing Co., this court concluded that
the fact that the petroleum tax is passed on to purchasers does not alter the original intent of the legislature
to impose the tax on the distributor’s gross earnings
and to collect the tax only from the distributor and not
from the purchaser at the time of the sale. See id., 598
(‘‘[W]e conclude . . . that § 12-587 includes within
‘gross earnings’ the amounts that the [distributor] has
collected as taxes passed through to its customers. This
result is not altered by the fact that, for its own accounting purposes, the [distributor] billed its customers separately for the sales price of its petroleum products and
for the taxes it collected from them.’’). Because we are
obligated to abide by the intent of the legislature, as
expressed in § 12-599 (a), we cannot construe the term
‘‘taxpayer’’ in § 12-597 to include purchasers of petroleum products. Therefore, we conclude that the legislature has not waived the state’s immunity and allowed
purchasers of petroleum products to appeal from a
decision of the commissioner regarding the petroleum tax.21
In the present case, the plaintiff has alleged only that
it is a purchaser of petroleum products, not that it is
a distributor of such products. Although the plaintiff
alleges that it paid the distributor the amount of the
tax for which the distributor was liable, the plaintiff
was neither liable for the tax, nor did it pay the tax.
Therefore, any amounts paid to the distributor in anticipation of the distributor’s tax liability constitute only
an amount that the plaintiff paid in consideration for
the petroleum products that it purchased from the distributor. See Texaco Refining & Marketing Co. v. Commissioner of Revenue Services, supra, 202 Conn. 598.
That the distributor used this consideration to cover a
portion of its tax liability does not make the plaintiff a
taxpayer. See DaimlerChrysler Corp. v. Law, supra,
284 Conn. 716–17. Consistent with the expressed intent
of the legislature and our case law, we conclude that
the plaintiff is not a ‘‘taxpayer’’ within the meaning of
§ 12-597 and cannot appeal from the decision of the
commissioner to the Superior Court pursuant to that
statute.22
III
The plaintiff next claims that the trial court incorrectly concluded that it could not maintain its appeal
under § 12-33 on the ground that that statute was inapplicable to the plaintiff’s claim because § 12-597, rather
than § 12-33, governs any appeal from a decision of the
commissioner regarding the petroleum tax. In support
of this claim, the plaintiff argues that, if it cannot appeal
under § 12-597 because it is not a taxpayer within the
meaning of that statute, it nevertheless may appeal from
the commissioner’s decision under § 12-33, which the
plaintiff characterizes as a ‘‘general appeal statute
. . . .’’ The commissioner responds that the trial court
correctly concluded that § 12-597 is the controlling statute because that statute specifically applies to appeals
from decisions of the commissioner regarding the tax
at issue in the present case. In support of this argument,
the commissioner relies on the provisions of chapter
227 governing refund request procedures and argues
that these procedures specifically require that any
appeal from a decision of the commissioner regarding
the petroleum tax be taken pursuant to the provisions
of § 12-597 and not § 12-33. We agree with the commissioner.
Consistent with § 1-2z, we begin with the text of § 1233. General Statutes § 12-33 provides in relevant part:
‘‘Any . . . company aggrieved by the action of the commissioner may, within one month from the time of such
action, make application in the nature of an appeal
therefrom to the superior court of the judicial district
in which such applicant is located . . . .’’ Although
the text of § 12-33 appears to permit the appeal in the
present case insofar as the plaintiff is a ‘‘company
aggrieved by the action of the commissioner,’’ this does
not end our inquiry.
Section 1-2z also directs us to consider the relationship of this statute to other statutes. According to the
plaintiff, it requested a refund of the petroleum tax
pursuant to § 12-589, which prescribes the procedures
applicable to a request for a refund of an amount paid
for the petroleum tax. Because the claim in the present
case involves a request for a refund of an amount paid
for the petroleum tax, we look to § 12-589 and the procedures prescribed therein to assist in our determination
of whether the plaintiff may appeal from the decision
of the commissioner pursuant to § 12-33 instead of
§ 12-597.
A review of the procedures in § 12-589 demonstrates
that, notwithstanding the text of § 12-33, which otherwise appears to apply to the present case, the legislature
specifically has required that a decision of the commissioner regarding a petroleum tax refund request be
appealed pursuant to § 12-597. General Statutes § 12589 (a) (1) provides in relevant part: ‘‘Any company
believing that it has overpaid any taxes imposed under
section 12-587 [the statute imposing the petroleum tax]
may file a claim for [a] refund in writing with the commissioner . . . .’’ Section 12-589 further specifies the
procedures for the handling of any claims for a refund.
Specifically, the statute provides that, in the event that
the commissioner denies a request for a refund, ‘‘the
action of the commissioner on the claimant’s protest
shall be final upon the expiration of one month from
the date on which he mails notice of his action to the
claimant unless within such period the claimant seeks
judicial review of the commissioner’s determination
pursuant to section 12-597.’’ (Emphasis added.) General Statutes § 12-589 (a) (4). This provision expressly
provides that judicial review of a decision of the commissioner concerning a refund request filed pursuant to
§ 12-589 must be obtained pursuant to § 12-597. Indeed,
§ 12-589 (a) (4) makes clear that, unless a party claiming
a refund takes an appeal pursuant to § 12-597, the decision of the commissioner is ‘‘final’’ as to the ‘‘claimant’s’’
request for a refund.23 We conclude that this provision
strongly supports the conclusion that the legislature
intended for § 12-597, rather than § 12-33, to be the
provision governing an appeal from the decision of the
commissioner concerning a request for a refund of the
petroleum tax.24
This conclusion is supported by the well established
principle of statutory interpretation that requires courts
to apply the more specific statute relating to a particular
subject matter in favor of the more general statute that
otherwise might apply in the absence of the specific
statute. ‘‘[I]t is a well-settled principle of construction
that specific terms covering the given subject matter
will prevail over general language of the same or
another statute which might otherwise prove controlling. . . . The provisions of one statute which specifically focus on a particular problem will always, in the
absence of express contrary legislative intent, be held
to prevail over provisions of a different statute more
general in its coverage.’’ (Internal quotation marks omitted.) Tappin v. Homecomings Financial Network, Inc.,
265 Conn. 741, 760, 830 A.2d 711 (2003).
The text of the two statutes at issue and their respective locations in the state tax code demonstrate that
§ 12-597 more specifically applies to the tax at issue in
the present case. Section 12-597 is found within the
chapter of the tax code dedicated to the petroleum
tax, namely, chapter 227, and § 12-597 specifies the
requirements and procedures for appeals from a decision of the commissioner ‘‘made in relation to the tax
imposed under section 12-587,’’ which is the provision
imposing the petroleum tax.25 Section 12-33, on the
other hand, is located in the first chapter of the tax
code, namely, chapter 201, which contains numerous
provisions relating to the commissioner and the department generally, as well as several specific provisions
unrelated to the petroleum tax. Nothing in the text of
§ 12-33 indicates that it is specifically applicable to the
petroleum tax; indeed, nothing in chapter 227, the chapter governing the petroleum tax, refers to § 12-33 or
indicates in any way that § 12-33 has any relevance to
appeals from the commissioner’s decision concerning
the petroleum tax. Moreover, § 12-33 lacks any language
expressing that the legislature intended § 12-33 to apply
even though there might be other, more specific, appeal
provisions. For example, if the legislature had intended
§ 12-33 to operate as a general appeal provision, we
would expect to see some reference in the text of § 1233 that it should apply notwithstanding any other provision of law. See, e.g., General Statutes § 12-88a (b) (providing that section shall apply ‘‘[n]otwithstanding any
other provision of the general statutes’’). Such language
is absent in § 12-33. Thus, in the absence of any clear
legislative intent to the contrary, we conclude that § 12597, the provision that is more specific with respect to
appeals from the commissioner’s decision concerning
the petroleum tax, should apply over § 12-33.
We also are compelled to conclude that § 12-597
should apply instead of § 12-33 by virtue of another
well established principle of statutory construction that
requires us to interpret and apply statutes so as not to
render any statutory provision superfluous. We presume that ‘‘the legislature did not intend to enact meaningless provisions. . . . [S]tatutes must be construed,
if possible, such that no clause, sentence or word shall
be superfluous, void or insignificant . . . .’’ (Internal
quotation marks omitted.) Semerzakis v. Commissioner of Social Services, 274 Conn. 1, 18, 873 A.2d 911
(2005). The plaintiff argues that §§ 12-33 and 12-597
apply simultaneously as alternative appeal provisions.
This reading would, however, render § 12-597 superfluous because § 12-597 does not add any substantive
rights or procedures that do not already exist by virtue
of § 12-33, which was enacted prior to § 12-597. See
General Statutes (Rev. to 1958) § 12-33; see also General
Statutes (1949 Rev.) § 1711 (predecessor to § 12-33); cf.
P.A. 80-71, § 11, codified as amended at General Statutes
§ 12-597. Indeed, according to the plaintiff’s interpretation of the statutory scheme, if the legislature had not
enacted § 12-597, § 12-33 would nevertheless have permitted any aggrieved company to appeal from any decision of the commissioner, including those companies
qualifying as taxpayers that currently may appeal under
§ 12-597. Because, under the plaintiff’s interpretation,
any company that can appeal under § 12-597 already
could have appealed under § 12-33, and because § 12597 does not add any substantive right or procedure
that did not already exist in § 12-33, there would have
been no reason for the legislature to have enacted § 12597. Therefore, this principle supports the conclusion
that the legislature intended § 12-597 and not § 12-33
to be the applicable statute for appeals from the commissioner’s decision concerning the petroleum tax.26
Moreover, the legislature has enacted specific appeal
provisions for every kind of tax in the state tax code
under the jurisdiction of the commissioner. See, e.g.,
General Statutes § 12-237 (appeals regarding corporation business tax); General Statutes § 12-268l (appeals
regarding railroad company, community antenna television system, public utility company and public service
company taxes); General Statutes § 12-422 (appeals
regarding sales and use taxes); General Statutes § 12448 (appeals regarding alcoholic beverage tax); General
Statutes § 12-463 (appeals regarding motor vehicle fuels
tax); General Statutes § 12-521 (appeals regarding dividends, interest income and capital gains taxes); General
Statutes § 12-554 (appeals regarding admissions, cabaret and dues taxes). All of these provisions provide
essentially the same appeal procedures as § 12-33,
except they, like § 12-597, narrow the categories of permissible appellants. For the same reason that § 12-597
would be rendered superfluous, all of these statutes
and their respective limitations on standing to appeal
also would be rendered superfluous under both the
plaintiff’s and the dissent’s interpretation of the statutory scheme. In view of the extent to which the legislature has carefully enacted specific appeal provisions
for each kind of tax specified in the state tax code, we
cannot conclude that § 12-597 and similar statutes are
merely unnecessary surplus.
Finally, we disagree with the plaintiff’s conclusory
argument that ‘‘a more reasonable reasoning [of § 1233] is that the legislature foresaw a situation [in which]
a tax is illegally or erroneously collected by the commissioner from a company or town [that] may not fall into
the strict definition of a ‘taxpayer’ for the purposes
of the specific tax statute and, in response, wrote an
intentionally broad statute to provide an avenue of
appeal to those companies and towns.’’ To the extent
that the plaintiff and the dissent are asserting that the
legislature enacted § 12-33 to be an alternative to the
specific appeal statutes in the state tax code, such a
claim is not supported by the genealogy of the statute.
What is now § 12-33 originally was enacted to permit
appeals from ‘‘action[s] of the state board of equalization,’’ and not from actions of the tax commissioner.
Public Acts 1917, c. 186, § 1; see also Connecticut
Mutual Life Ins. Co. v. Rogers, 113 Conn. 14, 15–17,
154 A. 246 (1931) (resolving appeal from state board
of equalization brought pursuant to General Statutes
[1930 Rev.] § 1124, which is predecessor to § 12-33). At
that time, the state board of equalization had the power
to equalize property tax assessments by municipalities;
see General Statutes (1930 Rev.) § 1108; and to oversee
taxes on the gross earnings of certain types of companies, such as the tax on gross earnings of water, gas,
electric and power companies. See General Statutes
(1930 Rev.) § 1119. A predecessor to § 12-33, namely,
General Statutes (1930 Rev.) § 1124, permitted appeals
from the board of equalization and provided in relevant
part: ‘‘Any town, company or national banking association claiming to be aggrieved by the action of the board
of equalization may . . . appeal therefrom to the superior court . . . .’’ At the same time, the tax commissioner had authority over taxes that were different from
those within the authority of the state board of equalization, such as the corporation tax; General Statutes (1930
Rev.) § 1327; and each of the taxes that were within
the authority of the tax commissioner had their own
specific appeal provisions. See, e.g., General Statutes
(1930 Rev.) § 1335 (permitting appeals from decisions
of tax commissioner regarding corporation tax). Thus,
when originally enacted, the purpose of the predecessor
to § 12-33 was to permit appeals from an action of
the state board of equalization, not from an action or
decision of the tax commissioner.
The predecessor statute to § 12-33 did not apply to
actions of the tax commissioner until 1937, when the
legislature abolished the state board of equalization and
transferred its powers to the tax commissioner. See
Public Acts 1937, c. 238, § 13, codified at General Statutes (1939 Sup.) § 317e. The legislature accomplished
this transfer simply by striking out references to the
state board of equalization and replacing them with
references to the tax commissioner, including the reference to the board of equalization in the statute governing appeals from an action of the board. See General
Statutes (1939 Sup.) § 317e (‘‘[a]ny town or company
claiming to be aggrieved by the action of the tax commissioner may . . . appeal therefrom to the superior
court’’), amending General Statutes (1930 Rev.) § 1124
(governing appeals from action of state board of equalization). The legislature did not repeal the specific
appeal provisions in other parts of the state tax code
that already provided for appeals from decisions of the
tax commissioner regarding certain taxes. Thus, those
specific appeal provisions remained applicable to
appeals from decisions of the tax commissioner regarding the specific taxes that they addressed; see, e.g.,
General Statutes (1949 Rev.) § 1917 (appeals regarding
corporation tax); whereas the predecessor to § 12-33,
namely, General Statutes (1949 Rev.) § 1711, continued
to be the applicable appeal provision for decisions concerning those taxes formerly under the oversight of the
state board of equalization. Since the elimination of the
state board of equalization, the legislature subsequently
has amended those tax provisions formerly under the
supervision of that board to provide specific appeal
provisions for each of those taxes. See, e.g., Public Acts
1961, No. 604, § 27 (adding appeal provision for, inter
alia, utility company tax). The legislature also has
enacted specific appeal provisions for every new tax
in the state tax code. See, e.g., General Statutes § 12312 (permitting appeals from decision of commissioner
regarding cigarette tax). Even though all taxes formerly
under the control of the state board of equalization
currently have a specific appeal provision apart from
§ 12-33, and the legislature has included a specific
appeal provision for every other tax in the state tax
code, the legislature has not repealed § 12-33, and the
text of that provision has largely remained unchanged.27
Although § 12-33 no longer governs appeals from
decisions regarding those taxes formerly under the
oversight of the state board of equalization, it is not
left without any purpose because it has since been used
to permit appeals from actions of the commissioner
regarding taxes or assessments for which the legislature
has not provided a specific appeal statute, including
those taxes or assessments codified outside the state
tax code. See Circuit-Wise, Inc. v. Commissioner of
Revenue Services, 215 Conn. 292, 293–94 and n.2, 576
A.2d 1259 (1990) (resolving appeal brought pursuant
to § 12-33 from decision of commissioner concerning
hazardous waste tax assessment made in accordance
with General Statutes § 22a-132, which did not, at that
time, contain specific appeal procedure). Thus,
although the purpose of § 12-33 has changed since its
original enactment, nothing in the language of § 1233 or its genealogy demonstrates that the legislature
intended it to operate as an alternative to the specific
appeal procedures otherwise provided by the legislature.
For the foregoing reasons, we conclude that a person
or entity may appeal from a decision of the commissioner regarding the petroleum tax only pursuant to
§ 12-597 and not pursuant to § 12-33. Because none of
the provisions that the plaintiff relies on permits it to
assert its claim, we conclude that the trial court properly dismissed the plaintiff’s appeal.
The judgment is affirmed.
In this opinion ROGERS, C. J., and NORCOTT,
PALMER, McLACHLAN and VERTEFEUILLE, Js., concurred.
1
The plaintiff appealed to the Appellate Court from the judgment of the
trial court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2
The Interstate Commerce Commission was abolished and its functions
were transferred to the Surface Transportation Board, effective January 1,
1996. See ICC Termination Act of 1995, Pub. L. No. 104-88, §§ 101 and 201
(a), 109 Stat. 803, 804, 933–34.
3
We hereinafter refer to Sack Distributors Corporation and Sack collectively as the distributor throughout this opinion.
4
Although the commissioner did not specifically raise this claim as an
alternative ground for affirming the judgment of the trial court; see Practice
Book § 63-4 (a) (1); the claim raises an issue regarding the subject matter
jurisdiction of this court; see, e.g., DaimlerChrysler Corp. v. Law, supra,
284 Conn. 711 (sovereign immunity implicates subject matter jurisdiction);
and this court therefore is required to address it. See, e.g., Richardson v.
Commissioner of Correction, 298 Conn. 690, 696, 6 A.3d 52 (2010) (‘‘[t]he
subject matter jurisdiction requirement may not be waived by any party,
and also may be raised by a party, or by the court sua sponte, at any stage
of the proceedings, including on appeal’’ [internal quotation marks omitted]).
Moreover, the plaintiff had an opportunity to respond to this claim, and did
respond, in its reply brief. In fact, the plaintiff requested and was granted
permission to use additional pages in its reply brief to respond to this claim
pursuant to Practice Book § 67-3. Accordingly, we conclude that the parties
had an adequate opportunity to address this issue, and our resolution of
the case on this ground will not prejudice the plaintiff. See, e.g., Kaddah
v. Commissioner of Correction, 299 Conn. 129, 136 n.10, 7 A.3d 911 (2010).
5
The fourteenth amendment to the constitution of the United States,
§ 5, provides: ‘‘The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.’’
6
The eleventh amendment to the constitution of the United States provides: ‘‘The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.’’ The United States Supreme Court has construed this
provision to preserve a broad concept of sovereign immunity that includes
a prohibition on federal jurisdiction over an action brought against a nonconsenting state by its own citizens as well. Hans v. Louisiana, 134 U.S. 1, 10
S. Ct. 504, 33 L. Ed. 842 (1890).
7
Neither party claims that the 4-R act is not a valid exercise of Congress’
powers under § 5 of the fourteenth amendment, and we see no reason to
depart from case law supporting that proposition.
8
Title 49 of the United States Code, § 11501, provides in relevant part: ‘‘(b)
The following acts unreasonably burden and discriminate against interstate
commerce, and a State, subdivision of a State, or authority acting for a State
or subdivision of a State may not do any of them:
‘‘(1) Assess rail transportation property at a value that has a higher ratio
to the true market value of the rail transportation property than the ratio
that the assessed value of other commercial and industrial property in the
same assessment jurisdiction has to the true market value of the other
commercial and industrial property.
‘‘(2) Levy or collect a tax on an assessment that may not be made under
paragraph (1) of this subsection.
‘‘(3) Levy or collect an ad valorem property tax on rail transportation
property at a tax rate that exceeds the tax rate applicable to commercial
and industrial property in the same assessment jurisdiction. . . .’’
9
In its complaint, the plaintiff claims that it is subject to the jurisdiction
of the federal Surface Transportation Board. The commissioner does not
dispute this allegation.
10
We note that, unlike the tax in CSX Transportation, Inc., which was
assessed directly against the rail carrier, the tax at issue in the present case
was assessed against the distributor and not against the rail carrier. In
determining the applicability of the 4-R act, we do not consider this distinction to be relevant or fatal to the plaintiff’s claim. See Burlington Northern
R. Co. v. Superior, supra, 932 F.2d 1186 (‘‘[t]he [4-R act] applies to taxes
on rail transportation property and to other taxes if they discriminate against
rail carriers; it thus is not limited to cases in which the railroad is the
taxpayer’’). This distinction, however, is relevant to our analysis of the
plaintiff’s claims under state law. See parts II and III of this opinion.
11
The commissioner also argues that the 4-R act does not apply to allegedly
discriminatory tax exemptions and that, because the plaintiff is challenging
a tax exemption, this claim is not cognizable under the 4-R act. The United
States Supreme Court’s recent decision in CSX Transportation, Inc., however, held to the contrary. See CSX Transportation, Inc. v. Alabama Dept.
of Revenue, supra, 131 S. Ct. 1106, 1108.
12
Title 28 of the United States Code, § 1341, provides: ‘‘The district courts
shall not enjoin, suspend or restrain the assessment, levy or collection of
any tax under State law where a plain, speedy and efficient remedy may
be had in the courts of such State.’’
13
Indeed, as of July 1, 2007, a petroleum distributor’s gross earnings
from petroleum products sold to rail carriers are no longer subject to the
petroleum tax. See General Statutes § 12-587 (b) (2) (L).
14
The plaintiff also argues that the courts of this state are not bound by
the same considerations of state sovereignty as federal courts and, therefore,
may order the commissioner to issue a refund because ‘‘[t]he eleventh
amendment constraints [that] prevent federal courts from ordering a refund
are constraints [on] the power of Congress to expand federal . . . jurisdiction [and] not [on] the power of Congress to prohibit state conduct [or on]
the power of Congress to confer jurisdiction to state courts to grant whatever
remedy the state court deems appropriate.’’
This argument contradicts the decision of the United States Supreme
Court in Alden v. Maine, supra, 527 U.S. 706, in which that court concluded
that Congress may not expand the jurisdiction of state courts to allow
private actions against nonconsenting states through its powers under article
one of the United States constitution. Id., 754. In reaching this conclusion,
the court reasoned that, although the eleventh amendment merely constrains
Congress’ power to expand federal court jurisdiction to include private
actions against nonconsenting states, general principles of sovereign immunity prohibit Congress from expanding state court jurisdiction to include
such actions. See id., 748–54. Therefore, regardless of whether Congress is
expanding federal or state court jurisdiction to include private actions
against nonconsenting states, the limitations on this power and the exceptions to those limitations are essentially the same. See id., 754 (‘‘[w]e are
aware of no constitutional precept that would admit of a congressional
power to require state courts to entertain federal [actions that] are not
within the judicial power of the United States and could not be heard in
federal courts’’). Therefore, we conclude that the same principles that prevent federal courts from expanding the reach of the 4-R act beyond that
clearly provided for by Congress apply equally to this court’s construction
of the 4-R act. Cf. Sullins v. Rodriguez, 281 Conn. 128, 133–38, 913 A.2d
415 (2007) (observing that, although valid federal laws generally may be
enforced in state courts, when construing scope of federal law that
encroaches on state’s sovereign immunity, federal law and principles control
our analysis).
15
The court in Lennen construed and applied an earlier version of the 4R act. See Atchison, Topeka & Santa Fe Railway Co. v. Lennen, supra, 732
F.2d 1497–98 (construing Pub. L. No. 94-210, § 306, 90 Stat. 54, codified at
49 U.S.C. § 26c [2] [1976]). That statutory provision provided in relevant
part: ‘‘[T]he district courts of the United States shall have jurisdiction, without regard to amount in controversy or citizenship of the parties, to grant
such mandatory or prohibitive injunctive relief, interim equitable relief, and
declaratory judgments as may be necessary to prevent, restrain, or terminate
any acts in violation of this section . . . .’’ 49 U.S.C. § 26c (2) (1976).
16
To read the 4-R act to permit ‘‘whatever remedy the state court deems
appropriate,’’ as the plaintiff suggests, would undermine the conclusion of
these courts that the act is a valid exercise of Congress’ enforcement powers
under § 5 of the fourteenth amendment because these courts reached this
conclusion in part on the ground that the act permits only injunctive or
declaratory relief.
17
The plaintiff also cites to a single case in which a federal district court
ordered a state to refund taxes paid in violation of the 4-R act. Atchison,
Topeka & Santa Fe Railway Co. v. State Board of Equalization, Docket
No. C-89-4030 DLJ, 1994 WL 508836 (N.D. Cal. September 7, 1994). In ordering
a refund, that court did not provide any authority for its decision or any
analysis as to whether the 4-R act permitted such refunds. See id., *5–*6.
Although the defendants in that case appealed from the order of the District
Court to the Ninth Circuit Court of Appeals, that court dismissed the appeal
for lack of jurisdiction because of a late filing. Atchison, Topeka & Santa
Fe Railway Co. v. California State Board of Equalization, 102 F.3d 425,
427 (9th Cir. 1996), cert. denied, 528 U.S. 1114, 120 S. Ct. 930, 145 L. Ed. 2d
810 (2000). Because the District Court provided no authority or analysis for
its decision, and because the decision was not subject to appellate review,
we do not find this case persuasive to our analysis.
18
In addition to its argument that it is a ‘‘taxpayer’’ within the meaning
of § 12-597, the plaintiff also argues that any requirement of taxpayer status
in that statute has been abrogated by the 4-R act such that any rail carrier
can appeal from a decision of the commissioner. We already have concluded,
however, that the 4-R act abrogated the state’s immunity from claims seeking
injunctive or declaratory relief only and not from claims seeking refunds
for taxes already paid. Therefore, we need not address this argument.
19
Although this case implicates the doctrine of sovereign immunity, and
the commissioner specifically raised that doctrine in support of its motion
to dismiss, we note that, for the same reason that sovereign immunity bars
the plaintiff’s claim, the plaintiff’s claim similarly could be dismissed on the
basis of the plaintiff’s lack of standing to appeal under § 12-597 because the
plaintiff cannot meet the requirements of that statute. See, e.g., Brown &
Brown, Inc. v. Blumenthal, 288 Conn. 646, 654, 954 A.2d 816 (2008) (‘‘[t]he
right of appeal is accorded only if the conditions fixed by statute and the
rules of court for taking and prosecuting the appeal are met’’ [internal
quotation marks omitted]).
20
The petroleum tax is imposed on the purchaser, rather than the distributor, when the purchaser buys the petroleum product from an out-of-state
distributor for resale, use or consumption within this state. In such case,
the out-of-state distributor is not liable to pay the petroleum tax to this
state. See General Statutes § 12-587 (c) (1). It is undisputed, however, that
the present case involves the purchase of petroleum products from an
in-state distributor who was subject to the petroleum tax. Therefore, the
exception set forth in § 12-587 (c) (1) has no bearing on the merits of
this appeal.
21
Although the plaintiff argues that it should be considered a taxpayer
because the petroleum tax is passed through to the purchaser and that the
legislature’s intended scheme is no longer workable, we need not determine
whether the present scheme represents good tax policy. The legislature
chose the current scheme and has elected not to change it in the thirty-one
years since the United States District Court for the District of Connecticut
declared this state’s anti-passthrough provision unconstitutional in Mobil
Oil Corp. v. Dubno, supra, 492 F. Sup. 1013–14. Our role is only to construe
the statutes as provided by the legislature and not to construe them in a
manner that we think represents better policy; policy decisions must be left
to the legislature. This principle is especially strong in cases involving waiver
of sovereign immunity.
22
In support of its argument that it should be permitted to appeal pursuant
to § 12-597, the plaintiff claims that there are inconsistencies between the
language in General Statutes § 12-589 (a) (1), which permits ‘‘[a]ny company
believing that it has overpaid [the petroleum tax]’’ to request a refund from
the commissioner, and the language in § 12-597, which permits only a ‘‘taxpayer’’ to appeal from a decision of the commissioner regarding refund
requests. The plaintiff claims that, if the legislature has permitted any company to request a refund under § 12-589, any company should therefore
be permitted to appeal from a decision concerning that refund request
notwithstanding any taxpayer status requirement in § 12-597. This perceived
inconsistency between these statutes disappears, however, when those sections are read together with the statutory provision that imposes the tax,
namely, § 12-587. Section 12-587 (b) (1) imposes the petroleum tax on ‘‘any
company’’ that distributes petroleum in this state. General Statutes § 12-589
(a) (1), in turn, provides that ‘‘[a]ny company believing that it has overpaid
any taxes imposed under section 12-587’’ may request a refund. Thus, the
reference in § 12-589 (a) (1) to ‘‘[a]ny company’’ refers only to those companies that are required to pay the tax imposed by § 12-587 (b) (1) and are
therefore considered taxpayers for the purpose of taking an appeal pursuant
to § 12-597. The language of §§ 12-589 (a) (1) and 12-597 also is consistent
in light of the legislature’s stated intent that only those companies subject
to the petroleum tax under § 12-587 are to be considered taxpayers. General
Statutes § 12-599 (a). Indeed, the plaintiff acknowledges that this inconsistency is corrected when these provisions are interpreted as a tax only on
distributors, as the legislature originally intended. For the foregoing reasons,
we conclude that, although the plaintiff filed its request for a refund pursuant
to § 12-589, and those procedures govern such a request, the plaintiff was
not entitled to a refund under that provision because it cannot establish
that it was a taxpayer.
23
In this context, we interpret the term ‘‘final’’ to mean that no further
proceedings on the request for a refund are available except for those
described in the statute.
Additionally, we interpret the term ‘‘claimant’’ in § 12-589 (a) (4) to include
any entity that has filed a claim for a refund of the petroleum tax, irrespective
of whether that entity is actually entitled to a refund. The plaintiff in the
present case had filed a claim for a refund of the petroleum tax and therefore
is a ‘‘claimant’’ within the meaning of § 12-589 (a) (4). For this reason, and
for the myriad of reasons set forth in footnote 24 of this opinion, we disagree
with the conclusion of the dissent that § 12-589 (a) (4), and its requirement
that a claimant appeal pursuant to § 12-597, does not apply to the plaintiff
because the plaintiff is not a taxpayer. This conclusion is inconsistent with
the broad language of § 12-589, which does not limit the applicability of
that statute to taxpayers only.
24
The dissent argues that the plaintiff may appeal pursuant to § 12-33
because the procedures set forth in chapter 227, the chapter of the General
Statutes governing the petroleum tax, do not apply to the plaintiff or to the
plaintiff’s claims. The dissent bases this conclusion in large part on its
‘‘determination that the plaintiff’s claim is beyond the purview of the petroleum tax chapter and, therefore, [that] its appeal is not governed by the
procedures set forth in § 12-597, which are properly reserved for ‘taxpayer[s]
. . . .’ ’’ We respectfully disagree with the conclusion of the dissent for
several reasons.
First, the dissent’s argument does not give appropriate weight to the
nature of the relief that the plaintiff clearly sought. The dissent reasons that
chapter 227, and specifically § 12-597, has no bearing on the plaintiff’s claim
because the plaintiff’s request for a refund was not based on a claim that
‘‘it had overpaid the tax’’ but, rather, was intended ‘‘to challenge the unlawfulness of the petroleum tax as applied to its transactions with the distributor.’’ Although the plaintiff’s claim for a refund was based on an alleged
violation of the 4-R act, this does not alter the fact that the plaintiff is
seeking a refund of the tax that the distributor paid to the department. The
plaintiff has not brought a claim for a declaratory judgment or any other
prospective relief. The procedures set forth in chapter 227 for obtaining
such a refund are not limited only to claims for incorrect assessments but
apply to any claim that the tax was overpaid. General Statutes § 12-589.
Second, to the extent that the dissent does not consider the provisions
of chapter 227 relevant in concluding that § 12-33 plainly and unambiguously
applies to the plaintiff’s claim because the plaintiff is not a ‘‘taxpayer’’ within
the meaning of § 12-597, we disagree. To the contrary, the provisions of
chapter 227 apply to the plaintiff because the plaintiff’s claim involves a
request for a refund of the petroleum tax, and chapter 227 contains specific
procedures that govern such a request. Cf. Commission of Human Rights &
Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 358, 680 A.2d
1261 (1996) (examining subject of plaintiff’s claims in concluding that statute
more specific to plaintiff’s claims displaced more general statute that otherwise would have applied in absence of specific statute). The plaintiff
requested a refund from the commissioner pursuant to these procedures,
namely, those in § 12-589, and that statute provides that judicial review of
a decision of the commissioner pursuant to § 12-589 shall be made pursuant
to § 12-597. Simply because the plaintiff is unable to satisfy the requirements
of §§ 12-589 and 12-597 insofar as it is not a taxpayer does not make those
provisions any less applicable to the plaintiff’s claim.
Third, the dissent’s conclusion that §§ 12-33 and 12-597 both apply to
claims for refunds regarding the petroleum tax effectively nullifies § 12-597.
As we more fully describe hereinafter in this opinion, if § 12-33 applies to
such appeals, there would have been no reason for the legislature to enact
§ 12-597 when it established the petroleum tax because § 12-597 does not
add any substance or procedure not already contained in § 12-33. The only
material difference between the two statutes is that § 12-597 limits the
category of appellants to taxpayers. The dissent’s conclusion would, however, eviscerate the limitation imposed on standing under § 12-597 by
allowing any company to bypass that limitation simply by taking an appeal
pursuant to § 12-33.
Fourth, the dissent’s conclusion is inconsistent with our prior decision
in Texaco Refining & Marketing Co. v. Commissioner of Revenue Services,
supra, 202 Conn. 595–96, and our conclusion in part II of this opinion, with
which the dissent agrees. Relying on our interpretation in that case of the
legislature’s intent in § 12-599 (a) that the petroleum tax not be construed
as a tax on purchasers of petroleum products, we concluded in part II of
this opinion that the plaintiff, as a purchaser of petroleum products, cannot
be considered a payer of the petroleum tax or a ‘‘taxpayer’’ for purposes
of § 12-597. If the plaintiff is not a taxpayer, it makes little sense to allow
it to request a refund of a tax that it did not pay, especially when the
department did not receive from the plaintiff any payment of or tax returns
reporting this tax. As we made clear in Texaco Refining & Marketing Co.
and in part II of this opinion, simply because the distributor billed the
plaintiff for the amount of the tax the distributor eventually would pay does
not make the plaintiff a taxpayer, and we are prohibited by § 12-599 (a)
from construing the plaintiff’s payment of money to the distributor for this
purpose as a payment of the petroleum tax. Thus, the only entity that may
request a refund of this tax is the taxpayer, which is not the plaintiff. See
DaimlerChrysler Corp. v. Law, supra, 284 Conn. 716–17.
Fifth, the dissent’s conclusion conflicts with principles of sovereign immunity to the extent that it contradicts the text of § 12-589, which directs that
appeals from the commissioner’s decision concerning the petroleum tax
shall be taken pursuant to § 12-597. The doctrine of sovereign immunity
requires us to limit the scope of a waiver of immunity to the extent expressly
provided by statute. See id. Section 12-589 provides for judicial review
pursuant to § 12-597 only. To the extent that the dissent expands this limitation by concluding that a party also may seek judicial review under § 1233, we disagree.
Sixth, we disagree with the dissent’s conclusion because, not only does
§ 12-33 currently not apply to claims for refunds of the petroleum tax,
but it never has applied to such claims. When the legislature enacted the
petroleum tax, it included § 12-597 as the specific appeal provision applicable
to that tax. As we discuss more fully hereinafter in this opinion, § 12-33 was
enacted prior to § 12-597 and applies to an entirely different set of taxes.
25
Moreover, the legislature enacted the provision that subsequently was
codified at § 12-597 in the same public act that established the petroleum
tax. See P.A. 80-71, § 11; see also id., § 1 (establishing petroleum tax).
26
Furthermore, because there is no substantive difference between the
procedures in § 12-33 and those in § 12-597, we respectfully disagree with
the dissent that the legislature intended to ‘‘channel’’ appeals by taxpayers
through § 12-597 and permit all other companies to appeal pursuant to § 1233 and that this demonstrates that § 12-597 is not superfluous.
Indeed, although the language of the two statutes is different insofar as
§ 12-33 requires parties to appeal to their local judicial district and § 12-597
requires parties to appeal to the judicial district of New Britain, the plaintiff
acknowledges that this difference actually may be superseded by another
statute. General Statutes § 12-39l (b) empowers the chief court administrator
to designate the judicial district to which all tax appeals should be directed.
The judicial district of New Britain is currently the location of the tax session
of the Superior Court to which tax appeals are to be directed. Therefore,
despite the difference in language, it is not necessarily true that appeals
under the two statutes will be heard in different courts.
27
The current text continues to reflect the original purpose of the statute
because, in addition to permitting appeals by companies, it also specifically
permits appeals by ‘‘[a]ny town . . . .’’ General Statutes § 12-33. Although
the dissent omitted this reference in quoting the text of § 12-33 in its opinion,
this reference to towns reflects the former power of the state board of
equalization, and subsequently the tax commissioner, to equalize a town’s
property tax assessments. See General Statutes (1930 Rev.) § 1108.
There has been one minor change, however, to the text of § 12-33 since
the powers of the state board of equalization were transferred to the tax
commissioner. In 1978, the legislature converted the statute’s reference of
the location of the Superior Court from the ‘‘county’’ in which the appellant
was located to ‘‘judicial district . . . .’’ Public Acts 1978, No. 78-280, § 2.
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