DEPARTMENT OF REVENUE, FINANCE AND ADMINISTRATION CABINET VS. COX INTERIOR, INC.
Annotate this Case
Download PDF
RENDERED: NOVEMBER 5, 2010; 10:00 A.M.
TO BE PUBLISHED
MODIFIED: NOVEMBER 24, 2010; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001691-MR
DEPARTMENT OF REVENUE,
FINANCE AND ADMINISTRATION CABINET,
COMMONWEALTH OF KENTUCKY (THE
DEPARTMENT OF REVENUE)
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 09-CI-00305
COX INTERIOR, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND COMBS, JUDGES; LAMBERT,1 SENIOR
JUDGE.
CAPERTON, JUDGE: The Appellant, the Department of Revenue, Finance and
Administration Cabinet, Commonwealth of Kentucky, appeals the August 27,
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
2009, opinion and order of the Franklin Circuit Court, determining that the
Appellee, Cox Interior, Inc., could receive a refund of its payment of an ad
valorem tax assessment, despite its failure to protest that assessment prior to
paying the taxes at issue. Having reviewed the record, the arguments of the
parties, and the applicable law, we affirm.
In 2005, the Department of Revenue conducted a tangible personal
property tax audit of Cox for the period from 2001 to 2004. At the conclusion of
the audit, the Department issued tangible personal property tax bills to Cox in the
amount of $151,943.51. In March of 2006, Cox paid the entire balance due, with
interest, per the audit assessments. Approximately sixteen months thereafter, on
July 10, 2007, Cox filed refund claims pursuant to KRS 134.590 to recover
$44,717.00 in property taxes that Cox contends were erroneously paid because the
Department of Revenue had incorrectly placed manufacturing machinery on the
non-manufacturing schedule of the tangible return.
The Department of Revenue denied Cox’s refund claims on
procedural grounds on August 17, 2007. Specifically, the Department of Revenue
found that, even though Cox filed its refund claims within two years of paying the
audit liability, Cox’s refund claims were nevertheless disallowed by KRS 134.590
because Cox paid the audit liability without protesting it first. Cox protested that
denial on August 28, 2007, within the forty-five-day statutory period for filing a
protest claim as set forth in KRS 131.110. On December 10, 2007, the Department
of Revenue issued Final Ruling No. 2007-57, upholding the denial of Cox’s refund
-2-
claims. This final ruling, in reliance upon the last sentence of KRS 134.590(2) and
its counterpart in KRS 134.590(6), pointed out that Cox sought the refund of taxes
paid on assessments that it had not first protested pursuant to KRS 131.110.
Accordingly, the Department of Revenue determined that it had properly denied
the claims.
Cox appealed the final ruling to the Kentucky Board of Tax Appeals
(KBTA) on January 9, 2008. In its petition on appeal, Cox emphasized that its
refund claims were filed within two years of payment, as required by KRS
134.590(2). It further asserted that Cox’s failure to protest the original assessments
made at the conclusion of the audit did not preclude Cox from filing a refund claim
if it later discovered that it overpaid its property taxes. The petition further argued
that Cox had protested the Department’s denial of the refund claims in accordance
with the third sentence of KRS 134.590(2).
On August 19, 2008, the Department filed a motion for summary
disposition or judgment pursuant to 802 Kentucky Administrative Record (KAR)
1:010 Section 10. This motion was supported by the affidavit of Department of
Revenue employee Montoiya Wheat. Wheat was a protest and review officer
whose duties included the review of audits and issuance of notices of assessment
pursuant to KRS 131.110. Wheat stated that she had personally reviewed Cox’s
audit and had sent Cox formal notices of assessment of tax due in accordance with
KRS 131.110, 132.486, and 132.310. Accompanying the affidavit was a “fair and
accurate copy” of the November 14, 2005, letter Wheat sent to Cox which was
-3-
accompanied by the auditor’s narrative report, assessment notices, and supporting
schedules. That letter stated as follows:
In accordance with KRS 131.110, if you disagree with
the audit results, a written protest, setting for [sic] the
grounds upon which the protest is made, and identifying
the specific adjustments protested, must be filed within
forty-five (45) days from the notice date [on the formal
Notices of Tax Due that would be forthcoming within
five days].
Wheat’s affidavit further established that Cox did not protest the tax
assessments, but instead paid the tax assessed in full, with interest. Cox filed a
response and its own motion for partial summary disposition on September 3,
2008. Therein, Cox reasserted its position that its protest of the Department’s
denial of its refund claims satisfied the last sentence of KRS 134.590(2). It also
argued that this Court’s decision in Revenue Cabinet v. Castleton, Inc., 826 S.W.2d
334 (Ky.App. 1992), supported its position in this regard.
The KBTA issued Order No. K-20213 on February 5, 2009,
concluding that Cox had timely filed its claim for a refund and, thereafter, timely
filed its protest of Revenue’s denial of its refund claims. It further found that Cox
did not lose its ability to file for a refund under KRS 134.590 by paying the tax
first. The KBTA found Castleton to be most analogous to the case before it and
reasoned that the statute of limitations does not collapse on a refund merely
because the taxpayer pays the tax assessed.
The Department of Revenue appealed the decision of the KBTA to the
Franklin Circuit Court, which issued an opinion and order on August 27, 2009,
-4-
affirming the decision of KBTA. Like the KBTA, the circuit court found
Castleton to be controlling. It further found that the interpretation of KRS 134.590
asserted by the Department created “a procedural minefield of obstacles” that
would defeat the claims of taxpayers seeking to exercise their legitimate right to
make refund claims, stating specifically that:
Requiring a taxpayer to pay taxes under protest as a
mandatory pre-condition of asserting a refund claim later
simply erects unnecessary procedural obstacles to
obtaining a refund. When a taxpayer protests the denial
of a refund claim under the procedure of KRS 131.110,
Revenue has a full and fair opportunity to address the
merits of the refund claim. That is all the doctrine of
exhaustion of remedies can or should require.2
It is from that opinion that the Department of Revenue now appeals to
this Court. In addressing the issues raised by the parties, we note that when
reviewing an appeal from an administrative decision, the standard of review
regarding factual issues “is limited to determining whether the decision was
erroneous as a matter of law.” McNutt Construction/First General Services v.
Scott, 40 S.W.3d 854, 860 (Ky. 2001). Indeed, “[J]udicial review of administrative
action is concerned with the question of arbitrariness . . . . Unless action taken by
an administrative agency is supported by substantial evidence it is arbitrary.”
American Beauty Homes Corp. v. Louisville and Jefferson County Planning and
Zoning Commission, 379 S.W.2d 450, 456 (Ky. 1964). “Substantial evidence is
defined as ‘evidence of substance and relative consequence having the fitness to
induce conviction in the minds of reasonable [persons].’” Kentucky
2
See Franklin Circuit Court, Opinion and Order, p. 3.
-5-
Unemployment Ins. Com'n v. Landmark Community Newspapers of Kentucky, Inc.,
91 S.W.3d 575, 579 (Ky. 2002).
Concerning the weight of the evidence, “the trier of facts is afforded
great latitude in its evaluation of the evidence heard and the credibility of witnesses
appearing before it.” Bowling v. Natural Resources and Environmental Protection
Cabinet, 891 S.W.2d 406, 409-10 (Ky.App. 1994). A reviewing court may not
substitute its own judgment on a factual issue “unless the agency's decision is
arbitrary and capricious.” McManus v. Kentucky Retirement Systems, 124 S.W.3d
454, 458 (Ky.App. 2003). “[T]hree grounds of judicial review, (1) action in excess
of granted powers, (2) lack of procedural due process, and (3) lack of substantial
evidentiary support, effectually delineate [the] necessary and permissible scope [of
review].” American Beauty Homes Corp. 379 S.W.2d at 456 (Ky. 1964).
Nevertheless, matters of statutory construction are subject to de novo
review. “Statutory interpretation is a matter of law reserved for the courts, and this
Court is not bound by the [Circuit Court's] interpretation . . . . ” Halls Hardwood
Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky.App. 2000). Under de novo
review, a reviewing court affords no deference to the trial court's application of the
law to the established facts. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App.
1998). Should an administrative body misconstrue the legal effect of the facts,
courts are not bound to accept the legal conclusions of the administrative body.
Epsilon Trading Co. v. Revenue Cabinet, 775 S.W.2d 937, 940 (Ky.App. 1989).
-6-
Further, we note that the provision at issue in this matter, KRS
134.590, provides, in pertinent part, as follows:
(1) When the appropriate state government agency
determines that a taxpayer has paid ad valorem taxes into
the state treasury when no taxes were due or has paid
under a statute held unconstitutional, the state
government agency which administers the tax shall
refund the money, or cause it to be refunded, to the
person who paid the tax.
(2) No state government agency shall authorize a refund
unless each taxpayer individually applies for a refund
within two (2) years from the date the taxpayer paid the
tax. Each claim or application for a refund shall be in
writing and state the specific grounds upon which it is
based. Denials of refund claims or applications may be
protested and appealed in accordance with KRS 131.110
and 131.340. No state government agency shall refund
ad valorem taxes, except those unconstitutional, unless
the taxpayer has properly followed the administrative
remedy procedures established through the protest
provisions of KRS 131.110, the appeal provisions of
KRS 133.120, the correction provisions of KRS 133.110
and 133.130, or other administrative remedy procedures.
On appeal, the Department of Revenue argues that Cox was not
entitled to an ad valorem tax refund under KRS 134.590, because it failed to
protest the assessment of the taxes that were the object of the assessment. In
making this argument, it focuses particularly on the word “has” in the last sentence
of KRS 134.590(2). The Department of Revenue asserts that the use of the word
“has” unmistakably requires the Department to ask itself when considering a
refund claim: Has this taxpayer followed the provisions of KRS 131.110, which
relate to the protest of tax assessments? The Department of Revenue argues that in
-7-
the matter sub judice, Cox did not protest the assessments issued to it as a result of
the audit and that, accordingly, it could not later seek a refund.
In making this argument, the Department of Revenue asserts that the
KBTA and the circuit court erred in their reliance on Castleton, in light of the
history of KRS 134.590 and the difference in language between that provision and
KRS 134.580, which was the provision analyzed in Castleton.
As the Department of Revenue correctly notes, Castleton involved a
situation in which the taxpayer sought refund of a sales and use tax. Castleton paid
part of the assessment without protest, and protested and appealed the balance of
the assessment, achieving a reduction in tax liability. Approximately two years
later, Castleton filed a claim seeking the refund of a portion of the unprotested
amount it had paid. The Cabinet contended that Castleton had waived its legal
right to pursue that refund because it had failed to protest the assessment of the tax
for which it sought a refund. Therein, this Court held that the taxpayer did not
have to follow procedures for filing a protest of a tax assessment in order to seek a
refund, stating:
Upon consideration of KRS 134.580 in light of KRS
131.110, we agree with the trial court’s determination
that the remedy for filing a claim for a refund of taxes
pursuant to KRS 134.580 is not conditioned upon
satisfaction of the procedural requirements provided in
KRS 131.110 for filing a protest of a tax assessment.
Castleton, 826 S.W.2d at 337.
-8-
The Department of Revenue notes that in 1992, KRS 134.590 was
amended to provide the specific connection between itself and KRS 131.110 that
this Court found to be lacking between KRS 134.580 and KRS 131.110 in
Castleton. Thus, the Department of Revenue argues that it is plain that no refund
can be authorized by the Department unless the taxpayer has properly followed the
applicable administrative remedy, including the protest and appeal of the
assessment issued. The Department of Revenue argues that KRS 134.580 was not
similarly amended, and that as KRS 134.580 and KRS 134.590 are the only two
primary statutes governing tax refunds, the difference in language cannot be
considered the result of inadvertence on the part of the General Assembly.
Cox disagrees, and argues that the Castleton decision clearly stands
for the proposition that the taxpayer has the right to request a refund, provided that
it is timely made, without regard to whether a protest was filed against the audit
liability, and that such principle stands regardless of whether the refund claim
relates to a sales tax or a property tax. Cox also argues that it is insignificant that
KRS 134.590 references KRS 131.110, while KRS 134.580 does not, and that in
any event, it has followed the administrative remedy procedures mandated by KRS
131.110.
Cox also disputes Revenue’s assertion that the General Assembly
effectively overruled Castleton by amending KRS 134.590 in 1992, and again in
2005. Cox instead asserts that the language added in 1992 merely requires that
-9-
taxpayers follow the appropriate administrative remedy procedures applicable to
their refund claim, which it says it has done in this instance.
Cox further makes note of the “or other administrative remedy
procedures” language at the end of KRS 134.590(2), which it asserts is an
acknowledgement that a protest pursuant to KRS 131.110 is not the only
administrative remedy procedure that may be applicable in a refund situation. Cox
likewise argues that the 2005 amendment to KRS 134.590 does not support the
interpretation argued by Revenue,3 and that the clear and stated purpose of the
2005 bill was simply to make it clear that in a class action lawsuit to recover
property taxes, each litigant had to file a refund claim with the Department of
Revenue in order to receive a refund. Cox thus asserts that neither the 1992 nor the
3
Specifically, Cox directs this Court to the recitals made to the 2005 bill (HB 498 GA) by the
General Assembly, which state as follows:
WHEREAS, the General Assembly has been made aware that
technical nonsubstantive changes made to the tax refund statute,
KRS 134.590, in 1996 are being interpreted by litigants and courts
as making a substantive change that would allow the brining or
maintenance of class actions for the recovery or refund of taxes
against the Commonwealth and its political subdivisions and
taxing districts; and
WHEREAS, it appears to the General Assembly that similar
interpretations are or have been advocated or adopted concerning
other tax refund statutes, or that similar uncertainty exists with
respect to other tax refund statutes; and
WHEREAS, the General Assembly wishes to make it clear that
each taxpayer must file an individual refund claim and that the
filing of a class action lawsuit does not constitute a timely filing
for each member of the class, and clarify other procedural
requirements of the tax refund statutes . . . .
-10-
2005 amendments to KRS 134.590 support the Department of Revenue’s assertion
that the General Assembly has nullified Castleton.
Beyond asserting that Castleton is inapplicable to the matter sub
judice, the Department of Revenue argues that the interpretation of the statute
urged by Cox renders the last sentence of KRS 134.590(2) essentially meaningless.
The Department of Revenue asserts that the General Assembly specifically
intended for parties to protest allegedly erroneous assessments within a forty-fiveday period, as mandated by KRS 131.110. Accordingly, it argues that the
interpretation asserted by Cox, namely that parties have two years to request a
refund and then to protest if the refund is denied, is contrary to the intent of the
legislature in amending the statute. It further argues that the sensible and correct
interpretation of the third sentence of KRS 134.590(2) is that it codifies the
procedure for challenging refund claims denial that had previously been set forth in
the Department’s regulation, 103 KAR 1:010 §2. It also asserts that the last
sentence, by its clear reference to KRS 131.110 (which expressly refers to
assessments only) and to KRS 133.120 (which also pertains to assessments), makes
clear that it pertains to the protest of an assessment and not the protest of a refund
denial.
The Department of Revenue further argues that the interpretation of
the statute urged by Cox is at odds with the tangible personal property ad valorem
tax statutory scheme as a whole. Cox argued below that the Department of
Revenue’s position impermissibly shortens the two-year limitations period
-11-
prescribed in KRS 134.590(2) for filing refund claims to forty-five days, the time
allowed for protesting an assessment under KRS 131.110. Cox restates that
argument to this Court, asserting that the interpretation set forth by the Department
of Revenue would have the effect of discouraging taxpayers from paying their
taxes to avoid the risk of interest and penalties, and then pursuing a refund claim to
retrieve the tax that is not owed.
The Department of Revenue argues, instead, that it was and is
authorized, on a retroactive basis, to reopen assessments based upon a taxpayer’s
return, or to assess property that was omitted or not reported on tangible personal
property tax returns. Further, it notes that taxpayers who disagree with
assessments, or modifications to assessments, have the right to protest pursuant to
KRS 131.110. Thus, the Department of Revenue argues that in the case of an
assessment based solely upon an initial return, which is not modified, the
taxpayer’s protest and appeal rights would not be triggered. Instead, the taxpayer
would receive his or her tax bill from the sheriff later in the year, and would have
two years from the date of payment to obtain a refund if the taxpayer discovers that
an error has been made.4
In addition, the Department of Revenue argues, the correction or
exoneration procedures under KRS 133.110 and KRS 133.130 are not subject to
any forty-five-day deadline and would be available to obtain a refund within the
4
Citing to the Department’s online “Frequently Asked Questions: Property Tax” available at
http://revenue.ky.gov/FAQ/, page 8, in response to “How do I amend a previously filed
return? How long do I have?” “[T]axpayer has 2 years from the date of payment to file [an]
amended [tangible personal property tax] return which would result in a refund.”
-12-
full two-year period. Apparently, the Department of Revenue argues that it is only
in the specific situation at issue in the matter sub judice that a taxpayer must
protest within forty-five days of receipt of the assessment and prior to paying the
taxes. Thus, it appears that the primary distinction urged by the Department of
Revenue is that the General Assembly intended to make a delineation between the
refunds of property taxes paid in response to a tax bill issued by the sheriff as
opposed to an assessment directly from the Department of Revenue.
In response, Cox asserts that a taxpayer should not forever waive the
right to pursue a refund claim simply because the initial tax assessment was not
protested. It argues that a refund claim is properly made so long as it is filed with
the Department of Revenue within two years of the payment of the tax; and if the
claim is denied, the denial is protested as provided in KRS 131.110. It argues that
KRS 134.590(2) is effectively divided into two parts: the first of which provides
the requirements of a proper refund claim, and the second provides the
administrative remedy procedures in the event the refund claim is denied. It
asserts that KRS 134.590 merely provides that the appropriate agency must issue a
refund when it determines that the taxpayer paid property taxes that were not
owed, and that it is absurd to suggest that the General Assembly intended to make
a delineation between the refund of property taxes paid in response to a tax bill
issued by the sheriff as opposed to the Department of Revenue.
Cox particularly draws this Court’s attention to the final portion of
KRS 134.590(2), which provides that “other administrative remedy procedures”
-13-
may be applicable, depending on the circumstances. Cox asserts that this is a clear
acknowledgement that there are other administrative remedy procedures aside from
the protest of an initial assessment pursuant to KRS 131.110, including the protest
of a refund denial, which are applicable when warranted. Cox argues that it
complied with the mandates of KRS 134.590 in the matter sub judice and was,
accordingly, entitled to a refund.
Finally, the Department of Revenue asserts that the circuit court
substituted its own public policy views in disregarding the “plain meaning” of the
last sentence of KRS 134.590(2). Specifically, it takes issue with the court’s
statement that, “Requiring a taxpayer to pay taxes under protest as a mandatory
pre-condition of asserting a refund claim later simply erects unnecessary
procedural obstacles to obtaining a refund,” and its additional statement that the
taxpayer’s protest of the denial of its refund claim is “all the doctrine of exhaustion
of remedies can or should require.”
The Department of Revenue argues that it was not the province of the
court to discuss its opinions as to what legislative enactments should or should not
require. It thus asserts that the court erred as a matter of law in failing to enforce a
legitimate and salutary condition on the right to seek an ad valorem tax refund. It
asserts that Cox was given an opportunity to protest and appeal its assessments,
that it failed to do so, and that, accordingly, it cannot now obtain a refund under
KRS 134.590.
-14-
In response, Cox asserts that it is the Department of Revenue’s
position which is contrary to public policy. It argues that it is against public policy
to assert that taxpayers cannot retrieve erroneously paid taxes simply because the
taxpayer received a bill from the Department of Revenue and not from the sheriff.
In so arguing, it notes that the two-year statute of limitations applicable to property
taxes is already half of the limitations period provided for most other taxes.5
Having reviewed the record, the aforementioned arguments of the
parties, and the applicable law, we affirm. While the Department of Revenue
asserts that our holding in Castleton is inapplicable to the matter sub judice, we
cannot agree. Taxpayers have the right to determine their accurate tax liability,
both before and after payment of the taxes assessed. While the Department of
Revenue argues that the holding in Castleton is inapplicable because the refund
claim was governed by a different refund statute from that at issue in the matter
sub judice, we disagree.
The KBTA determined that the same principle that governed refunds
under KRS 134.580 should apply to property tax refunds under KRS 134.590. We
agree with the circuit court that KBTA’s interpretation in that regard was
reasonable, and we decline to disturb it herein. Although KRS 134.590 was
amended subsequent to Castleton to condition an ad valorem tax refund on the
exhaustion of administrative remedies, we do not find that such amendment alters
the applicability of that holding herein. We are in agreement with both the KBTA
5
See KRS 134.580, providing a four-year statute of limitations for other taxes.
-15-
and the circuit court that the interpretation asserted by the Department of Revenue
would effectively require the exhaustion of two administrative remedies rather than
one. As we have repeatedly held, we presume that the legislature did not intend an
absurd result. Workforce Development Cabinet v. Gaines, 276 S.W.3d 789, 793
(Ky. 2008). Requiring a taxpayer to protest taxes prior to payment as a mandatory
condition in order to later request a refund creates unnecessary and inefficient
procedural obstacles for the taxpayer. We cannot presume that the legislature
intended such a result.
Clearly, KRS 131.110 provides that a taxpayer who disagrees with an
initial assessment has the right to protest the proposed increase before paying it
within forty-five days. This does not, however, preclude those taxpayers who have
already paid the tax from seeking a refund of those monies if they later discover
that the amount assessed was in error. This Court is of the opinion that once the
tax is paid, KRS 134.590 provides taxpayers with a two-year window to retrieve
property taxes that were not owed.
We are in agreement with the interpretation asserted by Cox that the
“or other administrative remedy procedures” language at the end of KRS
134.590(2) is an acknowledgement that a protest pursuant to KRS 131.110 is not
the only administrative remedy procedure that may be applicable in a refund
situation. Indeed, the disjunctive use of the word “or” which joins “other
administrative remedy procedures,” evidences, in the opinion of this Court, an
intention that all prior references in the sentence are not to be treated as
-16-
conjunctive, or in steps, but in the disjunctive. This affords the taxpayer the option
to use any one and maybe all of the administrative remedies available.6
All that KRS 134.590 requires is that taxpayers must exhaust their
administrative remedies before a refund may be obtained. Cox did so in the matter
sub judice. In reviewing the record, we note that it is undisputed that the refund
claim submitted by Cox on July 10, 2007, was filed well within the two-year
statute of limitations provided by KRS 134.590. It is further clear that the claim
was submitted in writing, again per the requirements of the statute. It is equally
clear that upon denial of the refund by the Department of Revenue, Cox protested
that denial in accordance with KRS 131.110, and exhausted the administrative
remedies available.
Having reviewed KRS 134.590 in detail, we simply cannot find
language therein, or in any other property tax statute, which would support the
position that the payment of a tax bill issued by the Department of Revenue
nullifies the taxpayer’s right to claim a refund if it is later learned that the tax was
paid in error. We simply do not think that the General Assembly intended that the
two-year property tax refund statute be limited to situations in which property
taxes are paid to the sheriff and not to those which are paid in response to an
assessment issued by the Department of Revenue.
6
We note that the statute also states that “Denials of refund claims or applications may be
protested and appealed in accordance with KRS 131.110 and 131.340.” KRS 134.590(2). The
use of the word “may” is usually found to be permissive, in contrast to the use of the word
“shall,” and while this issue was not argued to this Court, it may have some bearing on the
interpretation of the statute.
-17-
As the circuit court correctly noted, our legislature has vested the
KBTA with the authority to act as the final administrative decision-maker
concerning interpretation of the Commonwealth’s revenue statutes. In the matter
sub judice, the KBTA, following a formal adjudication, found that Cox was
entitled to pursue a refund. The circuit court, having reviewed that construction,
found that it was neither arbitrary nor capricious, and that the KBTA applies the
correct rule of law to the undisputed facts. While we review issues of statutory
construction de novo, we are in agreement with the KBTA’s construction of the
pertinent statutory provisions, and decline to find otherwise herein.
Wherefore, for the foregoing reasons, we hereby affirm the August
27, 2009, Opinion and Order of the Franklin Circuit Court, and remand this case to
the Department of Revenue with instructions to fully consider and make a
determination upon the merits of Cox’s refund claims.
LAMBERT, SENIOR JUDGE, CONCURS IN RESULT ONLY.
COMBS, JUDGE, CONCURS AND FILES SEPARATE OPINION.
COMBS, JUDGE, CONCURRING: I concur in full with the well
reasoned majority opinion. I would simply note as a postscript that I deplore the
Department’s criticism of the public policy discussion in the opinion of the circuit
court. The opinion was well founded on the law and eloquently articulated as to
public policy concerns, which are most assuredly at the heart of all judicial writing.
The criticism by the Department was an ill-founded distraction from the issue
before us on appeal.
-18-
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Douglas M. Dowell
Frankfort, Kentucky
Michael D. Kalinyak
Steven Lenarz
Lexington, Kentucky
-19-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.