5K Farms, Inc. v. Miss. State Tax Comm'n
| Docket Number: | 2009-CA-01787-COA Linked Case(s): 2009-CA-01787-COA ; 2009-CT-01787-SCT ; 2009-CT-01787-SCT ; 2009-CT-01787-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-15-2011 Opinion Author: Lee, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Solid waste assessment - Jurisdiction - Section 27-77-7 - In forma pauperis - Section 11-53-17 - Defect of form - Due process - M.R.C.P. 24(d) - M.R.A.P. 44(a) Judge(s) Concurring: Griffis, P.J., Myers, Barnes, Ishee, Roberts and Maxwell, JJ. Dissenting Author : Carlton, J. With Separate Written Opinion Dissent Joined By : Irving, J. in part Procedural History: Dismissal Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 07-21-2009 Appealed from: Hinds County Chancery Court Judge: William H. Singletary Disposition: Dismissed for Lack of Subject-Matter Jurisdiction Case Number: G2009-599S/2 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | 5K Farms, Inc. |
MICHAEL A. HEILMAN, JOHN WILLIAM NISBETT, CHRISTOPHER THOMAS GRAHAM |
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| Appellee: | Mississippi State Tax Commission | STEPHANIE RUTLAND JONES, GARY WOOD STRINGER, STEPHANIE V. ROGERS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Solid waste assessment - Jurisdiction - Section 27-77-7 - In forma pauperis - Section 11-53-17 - Defect of form - Due process - M.R.C.P. 24(d) - M.R.A.P. 44(a) |
| Summary of the Facts: | The Mississippi Department of Environmental Quality granted emergency authorization to 5K Farms, Inc. to accept and dispose of vegetative debris, or non-hazardous solid waste, generated as a result of Hurricane Katrina. In a later memorandum, the MDEQ notified 5K Farms that all sites for which emergency authorization was granted for the disposal of vegetative debris may be considered commercial disposal sites subject to reporting requirements on solid-waste-disposal activities. This memo stated that 5K Farms was required to file a report with the Mississippi State Tax Commission showing the total amount of waste disposed of and ordering 5K to pay a fee in the amount of one dollar per ton. 5K Farms sought instruction from the MSTC, which determined that 5K Farms was a commercial disposal site and, thus, subject to the fee. In June 2007, 5K Farms filed a solid waste-fee annual report for the period between February 10, 2006, and May 4, 2006, reporting the disposal of 133,133 total tons of solid waste. In March 2008, the MSTC notified 5K Farms that it had been assessed $157,096.94, a sum which included interest and penalties. 5K Farms appealed this assessment to the MSTC Board of Review arguing that it did not operate a disposal site but only used the debris to develop the land in order to plant blueberries. The Board found that 5K Farms was notified in February 2006 of the potential liability and upheld the assessment. 5K Farms then appealed to the full Commission. The Commission determined that pursuant to statute, 5K Farms was a commercial non-hazardous solid-waste-management facility subject to the one-dollar-per-ton fee. The Commission further determined that there was no exemption in the law based on 5K Farms’ argument that its use of the land was beneficial. The Commission upheld the assessment of fees incurred during 2006, but it reduced the assessment to $133,133. 5K Farms appealed to chancery court. 5K Farms also filed a motion for supersedeas requesting the chancery court enter an order allowing 5K Farms to proceed without posting a bond as required and to prevent any collection proceedings against 5K Farms during the pendency of the case. The MSTC filed a motion to dismiss the appeal and objected to 5K Farms’ motion for supersedeas. After a hearing on the matter, the chancellor determined that 5K Farms could not proceed with the appeal as an indigent party; thus, 5K Farms was required to post the proper bond. The chancellor entered an order dismissing the case for lack of subject-matter jurisdiction. 5K Farms appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction The requirements of section 27-77-7 are clear. The taxpayer has thirty days to file an appeal in the chancery court. The taxpayer is also required to pay a bond or the amount of the tax under protest. There is no question that the language of the statute is plain and unambiguous. 5K Farms was required to post a bond or pay the amount of the tax under protest, and it did neither; thus, the chancellor did not err in dismissing the case. Issue 2: In forma pauperis 5K Farms argues that it should have been allowed to appeal in forma pauperis. Section 11-53-17 provides that persons who are indigent may proceed in civil actions as paupers. However, the statute dealing with in-forma-pauperis actions applies only to courts of original jurisdiction and not to courts of appeal. Thus, it is clear that 5K Farms was not entitled to proceed in forma pauperis when appealing the order of the Commission to the chancery court. Issue 3: Defect of form 5K Farms argues that dismissal was unwarranted because failure to pay the tax or post a bond was a form defect. However, this is not an instance where the bond was defective. In order to perfect its appeal, 5K Farms was ordered by statute to file a written notice and pay a bond or the amount of the tax under protest. 5K Farms failed to post a bond; thus, its appeal was not perfected. Issue 4: Due process 5K Farms argues that the statute requiring payment of a disputed assessment or a bond securing the same is a violation of its due process rights. However, the Court cannot review matters which were not ruled upon by the lower court. Furthermore, M.R.C.P. 24(d) requires that proper notice be given to the Attorney General when the constitutionality of a statute is challenged, and M.R.A.P. 44(a) similarly requires service of any appellate brief challenging the validity of a statute on the Attorney General, the city attorney, or other chief legal officer of the governmental body involved. 5K Farms’ failure to raise the issue of the constitutionality of section 27-77-7 at trial or to notify the Attorney General of its constitutional challenge of the statute results in a procedural bar on this issue. |
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