The Livingston Parish School Board Through its Sales and Use Tax Division VS Louisiana Machinery Company, L.L.C. (2011CA1235R Consolidated With 2011CA1236 2011CA1236)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1235 R C/ W 2011 CA 1236 R LIVINGSTON PARISH SCHOOL BOARD, THROUGH ITS SALES AND USE TAX DIVISION VERSUS LOUISIANA MACHINERY COMPANY, L.L.C. DATE OF JUDGMENT: JUL 0 3 2014 ON APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT NUMBER 130,691, DIV. E, PARISH OF LIVINGSTON STATE OF LOUISIANA HONORABLE ELIZABETH P. WOLFE, JUDGE Drew M. Talbot Counsel for Plaintiff-Appellee Robert R. Ranier Livingston Parish School Board, Frederick Mulhearn through its Sales and Use Tax Baton Rouge, Louisiana Division Jesse R. Adams, III Counsel for Defendant- Appellant Andre B. Burvant Louisiana Machinery Company, L.L.C. Kathryn S. Friel Matthew A. Mantle New Orleans, Louisiana BEFORE: WHIPPLE, KUI-IN, AND GUIDRY, JJ. Disposition: JOINT MOTION GRANTED; COURT'S . JUDGMENT REMANDED. REVERSED IN JlfNE 8, 2012 PART AND DECISION VACATED; AFFIRMED IN PART; TRIAL MATTER KUHN,J. Pursuant to a writ of certiorari granted on January 17, 2014, by the Louisiana Supreme Court, this case was remanded to this coun with instructions to consider the matter in light of the recent opinions of Washington Parish Sheriffs Office v. Louisiana Machinery Co., LLC, 13-0583 ( La. 10115113), 126 So.3d 1273, and Catahoula Parish School Bd. v. Louisiana Machinery Co., LLC, 12-2504 ( La. 10115/13), 124 So.3d 1065. In Catahoula Parish School Bd., the supreme court affirmed the third circuit's reversal of the trial court's grant of partial summary judgment in favor of the Catahoula Parish School Board and the Catahoula Parish Police Jury, specifically ruling that the mandatory notice requirements of La. R.S. 47:337.51 were deficient and, therefore, not final; that the validity of the notices of assessments constituted an essential element of the tax collectors' claims rather than strictly a defense asserted by the companies; and that the defenses of the companies were timely filed. So.3d at 1076. 124 In Washington Parish Sheriff's Office, the supreme court reversed this court's decision for the reasons it had assigned in Catahoula Parish School Bd. Washington Parish Sheriff' s Office, 126 So.3d at 1279. Subsequent to the supreme court's remand, Livingston Parish School Board the Tax Collector) and Louisiana Machinery Company, LLC (the Company) filed a joint motion requesting specified relief. Based on our review of the Louisiana Supreme Court's holdings in Catahoula Parish School Bd., 124 So.3d 1065 and Washington Parish Sheriffs Office, we grant that relief Thus our earlier decision is vacated in its entirety. We reverse that portion of the trial court's grant of summary judgment in favor of the Tax Collector, since the Tax Collector's notice of assessment under La. R.S. 47:337.51 was deficient and, therefore, not final; and because sufficiency of notice was an essential element of its claim, the Tax Collector failed its burden of proving entitlement to the taxes it averred were due. That portion 2 of the trial court's judgment that sustained a peremptory exception of the Company based on the objection of prescription as to the taxes due for calendar year 2006 is affirmed, since this defense by the Company was timely asserted. 1 The matter is remanded for further proceedings. Appeal costs in the total amount of $ 1,856.50 are assessed one- half against the Livingston Parish School Board and one-half against Louisiana Machinery Company, LLC. JOINT MOTION GRANTED; JUNE 8, 2012 DECISION VACATED; TRIAL COURT'S JUDGMENT REVERSED IN PART AND AFFIRMED IN PART; MATTER REMANDED. 1 At the February 14, 2011 hearing before the trial court on, among other things, the Tax Collector's entitlement to partial summary judgment and the Company's exception of prescription, the Tax Collector conceded that the " 2006 taxes were prescribed when the assessments were issued." On review, this court incorrectly concluded that the prescription defense relative to the 2006 taxes had been untimely asserted. Livingston Parish School Bd. v. Louisiana Machinery Co., L.L.C., 2011-1235 ( La. App. 1st Cir. 6/8112), 98 So.3d 407,413-14. In light of the supreme court's holding that the deficient notice, which constituted an essential element of the Tax Collector's claim, precluded a finding of finality to the assessment issued by the Tax Collector, the prescription defense was timely asserted. Bd., 124 So.3d at 1076. See Catahoula Parish School Thus, given the Tax Collector's concession before the trial court, and again in the joint motion filed in this court, the trial court's ruling sustaining the exception insofar as the 2006 taxes is properly affirmed. 3
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