Carlene T. Kinchen VS The Livingston Parish Council, Honorable Michael Grimmer in his official capacity as Parish President for the Parish of Livingston and Ms. Tracie Eisworth in her official capacity as Director of Finance for the Parish of Livingston

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0301 CARLENE T KINCHEN VERSUS THE LIVINGSTON PARISH COUNCIL ET AL DATE OF JUDGMENT Februmy 9 2007 ON APPEAL FROM THE TWENTY FIRST JUDICIAL DISTRICT COURT PARISH OF LIVINGSTON NUMBER 1 07860 STATE OF LOUISIANA HONORABLE ROBERT H MORRISON III JUDGE Robert H Harrison Jr Counsel for Plaintiff Appellant Denham Carlene Kinchen Springs Louisiana Blayne Honeycutt Denham Springs Louisiana D BEFORE Disposition Counsel for Defendants The I UHN GAIDRY AND WELCH JJ AFFIRMED f g W Appellees Livingston Parish Council et al KUHN J Plaintiff sustaining a appellant Carlene Kinchen appeals the trial peremptory exception raising the objection of Parish President for Livingston Parish Director of Finance for the Parish class certification damages a the against refund pre taxpayer judgment Michael Grimmer s judgment interest as Tracie Eisworth and the Parish s of action filed no cause the Council by defendants the Livingston Parish Council comi as petition which seeks expenses court costs attorney fees and declaratory relief pronouncing the document transaction tax enacted A by the Council is unconstitutional We affirm attaching the perspicacious According Kinchen the to 300 00 paid subsequently Judge Robert H Morrison a filed this lawsuit on for judgment December tax to 2004 12 the Parish She April 29 2005 challenging the validity of which enacted the undisputed was tax That ordinance subsequently discontinued provided in Levy when due collection Except as execution document located in b The gist of Kinchen s otherwise noted herein by the parties to transferring or the parish shall tax instrument The on Appendix part a I reasons documentary transaction Livingston Parish Ordinance 04 28 relevant written allegations of her petition as whose enforcement it is s as not act hereby levied on the any instrument act writing or conveying immovable property a tax is be due and collectible unless and until the writing asseliion of the or document shall have been recorded unconstitutionality of the documentary transaction tax is that the Parish which operates under a home rule charter see La Const Ali VI S 5 is limited in its power of taxation to that which is granted by the legislature or the constitution See La Const Art pennitting VI S 30 Urging the Parish to that there is impose the no constitutional documentary invalid tax 2 or transaction tax legislative grant of authority Kinchen maintains it is an in the public records of the recorder recorder of mOligages The of conveyances and tax shall be paid by the the or buyer or transferee of immovable propeliy in the case of an act of cash sale donation or other transfer of immovable property and the tax to the shall be collected and remitted the designated by parish Such buyer or designee council entity or person each such person by his or designated the taxpayer The taxpayer may delegate the function of remitting and paying the tax to the notary public or the attorney handling transferee taxpayer shall remain liable for the the transaction however the tax the to hereinafter c Penalties for If any subject remitted within the time not and the taxpayer in due plus interest shall be delinquent being liable for the tax a penalty of 20 percent of the to to amount at the rate of ten per cent per interest as delinquency herein it shall be prescribed depmiment of finance fOlih due under this miicle is tax addition the parish through set shall be of the annum tax plus 500 00 or whichever is greater and ten percent of the attorney s fees the tax interest and penalty die in all cases wherein attorney is required to assist in the collection however that the penalties and interest imposed on an provided herein shall be waived if payment of the tax is received within 45 days of the date of the first notice of delinquency from the entity or person designated by the Parish Council d Limitations The levy payment article shall not or failure affect nor to pay any civil laws of persons shall any immovable instance transaction be or tax be construed affecting rights the required by this as impairing or obligations created or governed by the property and obligations and in no construed to be propeliy subject involved to any in lien any or virtue of the failure to pay the tax nor shall this article affect or alter or be construed by any person as affecting or altering the duties and powers of any constitutional encumbrance by parochial officer e Exemptions The following enumerated instluments acts writing or documents shall be exempt from the provisions of this article and the tax imposed The ordinance specifies 32 exemptions J f Administration l and enforcement The Director of Finance for Livingston Parish may from time to time inspect the registry of public record to ensure compliance with this article The Parish Council shall promulgate rules and regulations for the enforcement and administration of this miicle within 30 days from the effective date of the ordinance from which this miicle was derived and may require persons to appear and testify and to produce documents for its inspection under oath 2 g The parish council is hereby authorized to engage the services of another public official to effect the collection of the tax levied by this chapter in whole or in part compensation to be negotiated Imposition and collection The shall be due and collected upon each transaction involving the recordation of an instrument act writing or 1 tax document covered by this miicle as follows For all sales mortgages sales and resales through a financial institution or sales and mortgages deemed to be a family single transaction involving only one residence the 300 00 or residential double single sum of being understood that the tenn single family residence includes a single unit in residential condominiums and single residential townhouses it but does not include timeshares condominiums or townhouses 2 For all other transactions each instrument act 3 the writing or sum of 300 00 for document taxpayer may delegate the function of remitting paying the tax to the notary public or the attorney handling the transaction however the The and taxpayer shall remain liable for the through the department or finance tax to as the parish hereinafter act forth 4 For all sales of time share condominium units whether characterized simple or right of use as sales of by the share condominium the or sum an interest in fee developer of the time of 300 00 for the sale transfer of each 152 share of each time share 4 condominium unit which sale or unit provided however deemed transfer of each time share condominium to be a single single instrument subsequent sales shares or any group of instruments transaction shall be taxed writing condominium unit a 300 00 for each sale document as a For any transfers of fractional time or interval of or other than the time share h shall be due upon the sum or by a seller developer the sum of transfer Remittance The taxpayer shall the instlument act immediately upon filing for record of writing or document in either of the public records offices remit and pay the tax directly or through the notary public or attorney handling the transaction to the entity or person designated by the Parish Council If any provision of this ordinance shall be held to be invalid such invalidity shall not affect other provisions herein which can be given effect without the invalid provision and to this end the provisions of this ordinance are hereby declared to be severable The objection that a petition fails to by the peremptory exception La C C sustaining the peremptory exception of review by court determination of the s an appellate App 1st Cir2 l4 03 court 845 P state mi 2d So 927A 4 no cause employing the exception a cause same Stroscher 518 523 5 of action is properly A trial court of action is subject principles applicable v s raised judgment to de novo to the Stroscher 01 2769 p 3 trial La The trial comi was afforded that she did fails to a conectly applied procedure to test a exception the procedure s conclude that Kinchen Tax and petition Appeal petition are defendants cOlTectly sustained comi costs Thus because her fOlih in La R S 47 2110 it fails set set forth Accordingly for the reasons dismissal of Kinchen to validity of the Document Transaction of action and the trial cause 3 21102 47 timely avail herself of that remedy not allege conformity with to state the La R S by the trial assessed to comi we affirm the Carlene Kinchen AFFIRMED 2 Although subsequently been modified by the legislature by La Acts 9 July by its express tenns that amendment does not apply to the tax in this case which was imposed in December 2004 Thus La R S 27 2110A 3 as to this case provides in relevant part applicable La R S 2004 No 461 3 resisting officer 27 2110 has 3 effective 1 2006 other taxpayer which is not a public service property taxpayer the payment of any amount of tax due shall pay the amount due to the a Any law for the collection ofsuch tax and shall designated by give him written notice at the time of payment ofhis intention to file suit for the recovery of such tax Upon receipt of such notice the amount so paid shall be segregated and held by the officer for a of period thirty days If a suit is timely filed seeking the recovery of the tax then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be further held taxpayer pending the outcome of the suit That to the officer which is not in dispute pOliion of the taxes shall not be made paid by the subject to the protest b If the taxpayer which is not a public service property taxpayer prevails the officer shall refund the amount to the taxpayer with interest at the actual rate earned on the money paid under protest in the escrow account during the period from the date such funds the taxpayer does not together were prevail received by the officer to the date of such refund If the taxpayer shall be liable for the additional taxes period from the date the with interest at the rate set forth above dming the notice of intention to file suit for recovery of taxes the date such taxes are paid 3 In dismissing Kinchen s lawsuit the trial comi also of prescliption filed by defendants Because was granted an to the officer until exception raising the objection in the grant ofthe exception of no cause of action it is unnecessary to reach the issue of whether the petition is also prescribed and we pretennit such a discussion we have found given 6 no enor Appendix A CARLENE T KINCHEN NUMBER 107 860 DIVISION c 21 ST JUDICIAL VERSUS PARISH OF LIVINGSTON THE LIVINGSTON PARISH COUNCIL ET AL STATE OF LOUISIANA FILED DY CLERK REASONS FOR JUDGMENT This is enacted suit for class action certification to declare a by the Livingston Parish Council unconstitutional Documentary a The tax in question generally required the payment of 300 Parish The ordinance was somewhat provide that a person would be point the ability non specific designated not paid this of the Parish to collect this tax without tax under the time of payment The at nor to the tax challenge the or tax protested payment assessment during valorem taxes be filed The The first section ofR S up the above challenge some came It was conceded that the named to challenge the payment is made under In this even4 the collecting agency is inapplicable to this into plaintiff the tax at a tax must pay the tax protest and that a legal party has 30 days to file to case 47 2110 does prevent the suit segregate the funds from the the because use procedure is not Managed Insurance Co specific and fees vs or to ad valorem only with ad particularly paragraph taxes any illegal tax Litchfield 2001 0123 it deals of injunctive relief against However the remainder ofthe statute and jurisprudentially applied to other types oftaxes Louisiana Employer At the duration of any litigation the collection ofad valorem taxes setting Legislative approval some generally that a person who wishes assessment will or ofthe fee but did behalf of the Parish given notice of any intention to legally Plaintiff argues that this statute is A 3 ofthe tax collecting agency notifying the agency that challenge to protest designated collector exceptions presently before the Court are rooted in that failure RS 47 2110 holds to the to the prescriptionpre emption 00 for each deed recorded in the to receive payment on question and the Parish suspended collections had as Transaction Tax and to recover amounts paid by citizens for this tax Defendants have filed exceptions ofno cause ofaction and or J J DISTRICT COURT La paid App and has been as stated in 1 st Cir 12 28 01 805 So 2d 386 Plaintiff further argues that the method of enactment and collection of the transaction 1 t tax violates due process under the holding in McKesson Division of Alcoholic vs Tobacco 496 U S 18 110 S Ct 2238 110 L Ed 2d 17 1990 forth in RS 47 2110 ofthis tax The a general process Wholesale Beveral e Co challenge to pay the vs requirements in the post Tarver 92 CA 2658 a legal tax these issues In a position pending for the stage trial on the constitutionality and petition challenging enforcement persons had paid was the ordinance did penalties only not 14 had a of a By its own While it s App ad valorem taxes counterbalanced by might defer a ruling on 780 So 2d 1158 the collection of rejected The reason Although some 10 000 case or means in that the Livingston Parish of protest However specifics in the ordinance This not any ad valorem tax any person Cooper case also resisting itself and the court stating applies to amount of any tax not was similarly situated found due or provision of the tax laws in relation thereto who of the transaction tax cannot 4 Cir 2 14 01 might seem to be somewhat unfair to impose these taxpayer practical effect city ordinance providing any fees terms R S 47 2110 A the payment of the of any not attorney decided the issues under RS 47 2110 a 0115 La specific place of paYment involved collection of a penalty and not ordinance Cooper is inapplicable to the present designate ability paid under protest utilized that basic provisions ofR S 47 2110 upon lawsuit the Court ofthe lack of numerosity of persons Plaintiff argues that which to intertwined to treat separately No authority is attorneys fees for the collection ofpast due rejection a and a determination ofwhether are too Cooper vs City of New Orleans 2001 class action penalties as to arecovery and with respect to this present a delays in this basis on exceptions presently filed have and contends that these issues cited for this Further the give notice of filing of a legal challenge and that the Court is Plaintiff further contends that the is 614 So 2d 697 this Court fmds that Plaintiff had the precluded from ruling on the exceptions filed by Defendant bifurcating this proceeding validity McKesson decision in Church Point La 2 22 93 complied with due process Therefore under protest and tax set ofthe paYment under protest procedure contained in RS 47 2110 itself opined that a scheme of paYment under protest with short court a tax However under the provisions remedy was afforded persons similarly situated to Plaintiff to test the has been found to meet due process McKesson Beverages expect the levy the needs of government to 2 6 to be the enforcement procedures and time limitations potentially unconstitutional this is engage in sound fiscal planning at noted in Church Point and as further enunciated in Kean 0751 La 11 25 96 If we s Partnershi 685 So 2d 1043 wherein the vs Parish ofEast Baton Rouge 96 Supreme Court stated were to decide that judicial review is available to the taxpayer of the existence of a regardless question of fact or law the payment under protest requirements in local ordinances would be rendered meaningless and the local governing authorities would be subject to claims for refunds without having segregated the funds therefor Consequently this Court determines that in order Plaintiff would have to allege that the tax she paid Parish ofher intention to challenge the itself would have to be brought within this tax on or Consequently tax was in order to maintain this action paid under protest with notice given to state a cause to the of action and that the action and this suit the claims urged have likewise was not filed until April 29 2005 prescribed Livingston Louisiana this 14th day of September 2005 fiR o bH ert Judge to Robert H D presented thirty days ofsuch payment Her petition alleges that she paid about December 12 2004 Please send copies and notice as Harrison Jr Blayne Honeycutt 3 f Momson ill Division C CARLENE T KINCHEN NUMBER 2006 CA 0301 FIRST CIRCUIT VERSUS COURT OF APPEAL LIVINGSTON PARISH COUNCIL ET AL WELCH J bJ f I STATE OF LOUISIANA DISSENTING respectfully disagree with the majority opinion the trial court incorrectly determined that plaintiff s action to legislature intended valorem taxes La R S in this 47 2110 case I believe that challenge the validity of the document transaction La R S 47 2110 to govern The tax at issue in this case to applicable was the The tax only those actions concerning ad is not an ad valorem tax it is a document transaction tax or immovable property transaction tax Louisiana Revised Statutes 47 211 0 is entitled under protest Chapter 4 and it is located in Part II The 47 2110 was an act to carry the Constitution of Louisiana and to remedy for the prompt recover taxes paid Provisions Relating to Ad Revenue and Taxation original legislation for the provisions provided that it to Payment and Collection Procedure of of Subtitle III Payment and Collection Valorem Taxes of Title 47 Suits recovery by R S into effect Section 18 Article X of for provide every contained in La now complete and adequate a taxpayer of any illegal tax paid by him 1938 La Acts No 330 However amended and doing so the re in 1970 the provisions enacted into La R S set forth 47 2110 legislature limited this remedy to in the 1970 La Acts No actions to paid under protest This is evidenced by the preamble that the act amend s and reenact s original legislation recover to this 375 were 1 In ad valorem taxes act which provides Section 2110 of Title 47 of the Louisiana The title of a law may be examined to determine its purpose Boutte v Jefferson Parish 11 2d So 45 49 Hospital Service District No 1 99 2402 p 5 La 4 00 759 Revised Statutes of 1950 relative es pro t t 2 Emphasis added to suits to recover 1970 Since our ad valorem taxes paid under has amended and legislature reenacted La R S 47 2110 twelve times of those twelve amendments pertained found to pertaining relative to of the to preambles ad valorem the payment of ad valorem 2 court seven subsection A have all reiterated that the to 47 2110 A majority and the trial The applicable herein have the subsection that both the subsection A eight The title or preamble American Waste taxes and to taxes under of act amendments amend La R S to provide for procedures dealing with 4 protest act may be used to detennine an is eight3 Pollution Control Co 93 3163 p 10 legislative La 15 9 intent 94 Matter of 642 So 2d 1258 1264 The it pertained only amendment to subsection A wherein the preamble not did specifically indicate to the ad valorem tax concerned the interest rate at which the ad valorem taxes paid under protest were placed into escrow See 1995 La Acts No 53 AN ACT to amend and reenact La R S 47 2110 relative to the interest rate at which taxes paid under protest shall be deposited 4 or refunded See 1986 La Acts No 540 under protest to provide for for recovery of taxes to ad valorem propeliy 47 211 O A manner 15t provide for notice paid under protest Extr Session No relative to ad valorem tax the payment of ad valorem regarding withholding and in which taxes in 74 R S 47 2110 A dispute may be paid of taxes and interest upon outcome of a suit La R S 47 reenact AN ACT to amend and and service of process taxes to filed for recovery ofsuch taxes 2000 La Acts the provide refunding or collection 1995 La Acts No 272 La AN ACT to amend and reenact relative to ad valorem taxes to 2110 relative regarding AN ACT to amend and reenact certain suits La R S provide procedures dealing with taxes under protest generally to modify certain tax procedures aggregating ad valorem taxes due into separate funds dming procedures for to litigation 2001 La Acts No 1149 AN ACT to amend and reenact relative to the ad valorem property tax assessment ofpublic service 2003 La Acts No 792 AN ACT to amend and La R S 47 2110 A properties La R S 47 2110 A reenact relative to ad valorem property tax to provide with respect to certain ad valorem taxes which are in dispute and payment of such taxes made under protest to provide for notice in matters where the assessments of certain ad valorem taxes are in dispute and payment of such taxes is made under protest 2004 La Acts No 154 relative to the ad valorem tax to AN ACT to amend and reenact provide for the timely payment La of taxes R S 47 2110 A paid under protest and 2004 La Acts No 461 AN ACT to amend and reenact relative to ad valorem property tax payment under protest 2 procedure La R S 47 2110 A La R S within Subtitle III preambles RS to to 47 2110 the was ad valorem Provisions 47 2110 the location of La R S 47 2110 Relating Considering the title of to Ad Valorem Taxes La legislation concerning intended by the legislature paid under protest taxes RS of Title 47 and the it is clear that La 47 2110 A to govelTI The trial only those actions relative court and the have majority elToneously determined otherwise In Comm Care La v 681 So 2d 1001 Cir 9 27 96 121 98 Corp 806 So 2d 425 suit a Tax Comm 1006 to affirmed recover the end of the under La R S legislation tax year pertinent 47 2110 In doing forth above set him due was Permitting taxes to make delays a App 1st Cir a noted the by p every Ins Co 805 So 2d 386 12 28 01 391 we paid language remedy dependent upon the to v paid by him in its written reasons R S was not for was judgment specific to be made original complete and a assessment tax another suit to La R S tax year 7 La ad valorem recover 47 2110 p s purpose of recovery by every promoted by making the taxpayer concluded that the 3 taxes Id Employers Managed ad valorem paid of ad valorem the conclusion of the timely paYment of the ad valorem La we maintain suit Litchfield 2001 0123 again recognized that Using this language from to to from the roviding complete and adequate remedy for the prompt tax La under protest taxpayer of any illegal goal of promptness Employers Managed 1711 taxpayer making timely paYment of the paYment under protest subsequent taxpayer of any illegal 47 2110 we taxpayer challenging the validity of an paid under protest providing taxes App 1st La grounds 96 in order for the taxpayer recovery upon the recovery and defeats the In La taxes dependent other 10 under protest had taxes and reasoned that adequate remedy for the prompt by so on ad valorem determined that the paYment of ad valorem prior 96 0039 p n taxes Ins s taxes Co procedure the trial set court forth in La and determined that La R S 47 2110 this applied to suits recover flawed and their reliance Managed legislation taxes at Ins Co the on s issue in both Comm Care purpose in protest had Employers Managed valorem tax and the suit filed paid under protest reasoning is s Ins Employers Managed illegal Co original paYment of the ad issue in this tax at by the plaintiff is set the However unlike Comm Care the using Employers the not a suit language by our to is case recover an from La R S legislature not an ad ad valorem 47 2110 to ad forth in La R S 47 2110 is Corp s valorem applicable to including the document transaction tax is clearly inappropriate tax sets Ins procedure as our supreme court Iberville Parish Police 47 2110 to be made La Corp and appropriately considered we has since been limited conclude that the Moreover v majority adopted majority the time within which the Therefore original legislation which to taxes determining and La any The paid from the La language ad valorem were valorem taxes under taxes tax misplaced Since the tax illegal any However I believe that the trial court and reasoning Co is to succinctly noted in Allied Chemical Corp So 2d 1336 Jury 426 forth the proper method 1339 La 1983 La RS by which the paYment of an ad valorem tax may be resisted when the tax is not authorized by when the tax is political subdivision thereof under the imposed authority granted omitted emphasis not to it added certainly imposed by was by the a See La 47 2110 applicable to any to the or by the ie the and applies only Footnote constitution No tax was Livingston Parish Council it authority granted Atty Gen Gp transaction tax because the tax is the any election while the document transaction case political subdivision constitution to or by the legislature In this imposed pursuant not state an 04 0381 to it Thus by the not legislature only is La or RS plaintiff s action challenging the document not plaintiff s action because the an tax ad valorem whose 4 tax but it is also not applicable validity is being contested was not authorized by the constitution or the legislature See Allied Chemical Corp 426 So 2d at 1339 For these procedures set reasons I believe the plaintiff forth in La R S 47 2110 relative was to not ad valorem protest the document transaction tax the plaintiff has stated would reverse the judgment of to taxes a cause follow the in order to of action and I the trial court and remand this matter for further proceedings Thus I required respectfully dissent 5

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