Fidelity & Guaranty Insurance Co. v. Blount

63 So. 3d 453, 2011 Miss. LEXIS 163
CourtMississippi Supreme Court
DecidedMarch 24, 2011
DocketNos. 2008-CA-01931-SCT, 2009-CA-01248-SCT
StatusPublished
Cited by9 cases

This text of 63 So. 3d 453 (Fidelity & Guaranty Insurance Co. v. Blount) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fidelity & Guaranty Insurance Co. v. Blount, 63 So. 3d 453, 2011 Miss. LEXIS 163 (Mich. 2011).

Opinions

PIERCE, Justice,

for the Court:

¶ 1. On a consolidated appeal, Fidelity and Guaranty Insurance Company (“F & G”), St. Paul Fire and Marine Insurance Company (“St. Paul”), Travelers Casualty and Surety Company of America (“Travelers”) and the United States Fidelity and Guaranty Company (“USFG”), collectively referred to as “sureties,” are challenging the constitutionality of certain practices of the Mississippi State Tax Commission (“Tax Commission”) as related to certain contractor payment and performance bonds as required by law.

¶ 2. On June 26, 2002, F & G, a surety company licensed and operating in Mississippi, filed suit in the Chancery Court of Hinds County challenging the Tax Commission’s right to threaten to seize F & G’s Mississippi assets within ten days if it did not pay the sum that the Tax Commission claimed was owed by F & G’s principal, Aaim Construction, Inc. (“Aaim”) for unpaid taxes, penalties and accrued interest. After discovery was completed, the Tax Commission moved for summary judgment; F & G filed a cross-motion for summary judgment. On October 21, 2008, the trial court denied F & G’s motion and granted the Tax Commission’s motion for summary judgment.

¶3. On February 13, 2009, St. Paul, Travelers, F & G, and USFG filed an action in the same court on similar facts and issues but with different sureties and bonded principals. The Tax Commission filed its motion to dismiss on March 17, 2009, and after briefing and oral arguments, the trial court again ruled in favor of the Tax Commission.

¶4. The trial court concluded that a surety is not a taxpayer as contemplated under Mississippi sales-tax law, is not entitled to notice prior to a tax assessment or audit, and is hable for the entire amount of unpaid taxes, including damages, penalties, [456]*456and interest. A timely notice of appeal was filed, and upon joint motion of all parties, the above cases were consolidated for appeal.

STATEMENT OF FACTS

¶ 5. The appellants herein are all related surety companies authorized to do and doing business as sureties for construction companies in the state of Mississippi. Before a construction company may begin business, it must, by law, either pay the contractor’s tax in advance or must execute and file with the Tax Commission a bond with a surety company authorized to do business in Mississippi. This is to ensure that all taxes owed to the State will be paid when due. With this requirement in place, the Tax Commission has a form tax rider that has been approved by the commissioner and is commonly used by sureties and principals alike when complying with this requirement.

¶ 6. In addition to the bonding requirement, entities engaged in construction activities are required to pay contractor’s tax in the amount of three and one-half percent of the total contract price or compensation received.1 Failure to timely pay a contractor’s tax when due can result in an assessment and penalties ranging from ten percent to fifty percent of the total deficiency or delinquency or interest on the deficiency at the rate of one percent per month or both.2

¶7. These riders expressly guarantee the payment of “all taxes, damages, interest and penalties, which may accrue to the State of Mississippi.”3 Seven riders, in total, are the subject of this dispute.

¶ 8. Mississippi statutory law authorizes the Tax Commission to adopt rules and regulations necessary to implement the duties assigned to it by law. Pursuant to this grant of authority, the Tax Commission duly conducted multiple sales-tax audits on the bonded principals whose sureties are involved in this appeal. These audits resulted in an assessment of unpaid taxes, plus damages and penalties and interest commensurate with the taxes owed, which the sureties variously contest or seek to avoid paying.

Aaim Bonds

¶ 9. Aaim applied for and was given a state tax identification number in 1988. Aaim was bonded by F & G to ensure the payment of taxes. In 1991, Aaim was audited by the Tax Commission with no additional sales taxes assessed. In 1994, Aaim was audited again and found to be in arrears in the amount of $16,205.23 in unpaid taxes and $2,877.70 in penalties and interest. The Tax Commission audited Aaim a third time in 1998 and assessed additional taxes due and interest and penalties at fifteen percent, totaling $81, 654.4 In 2001, Aaim was audited a fourth time. The Tax Commission assessed additional taxes of $116, 479, interest of $20,770, and penalties of $29,120, or twenty-five percent of the unpaid taxes. The time period between the 1998 audit and the 2001 audit is contested.

¶ 10. On June 21, 2001, Aaim requested a hearing by the Board of Review. The hearing was granted, and F & G was given [457]*457no notice of Aaim’s default or the hearing. At the hearing, Aaim informed the Tax Commission that it was financially unable to pay the money owed. In the minutes of the hearing, the Tax Commission acknowledged that it was aware of F & G’s surety-ship with Aaim and that it intended to collect from F & G if the tax could not be collected from the taxpayer. The Commission further acknowledged that F & G’s address was printed on the face of the bond, but made no attempt to contact F & G or give it notice of the hearing held on August 2, 2001, with Aaim. F & G first received notice of the assessment by a demand letter on November 8, 2001.

¶ 11. The letter demanded payment of $131,880 owed by Aaim, which included unpaid taxes, penalties, and interest. The letter informed F & G that Aaim, the taxpayer, had been given due process of law regarding the audits and informed F & G that a tax warrant and lien would be filed if it did not pay within ten days. The letter dated November 8, 2001, came some three months after the hearing and some seven years after the Tax Commission had become aware that there was a problem with Aaim. On December 18, 2001, F & G paid the sum under protest and on June 26, 2006, filed suit in the Chancery Court of Hinds County.

Pryor and Frazier Bonds

¶ 12. On or about May 31, 2002, St. Paul provided a performance and payment bond for Pryor and Frazier Construction, Inc., in regard to a project at the Jamie Whitten Delta State Research Center. Attached to the bond was the Tax Commission’s form tax rider dated June 5, 2002. Seven years later, and without any prior notice, on January 8, 2009, the Tax Commission sent St. Paul a demand letter demanding payment within ten days of $772,022, including $368,450 in unpaid taxes, $184,226 in penalties, and $219,346 in interest, all owed to the state by Pryor and Frazier. St. Paul’s failure to pay risked seizure of its assets in Mississippi. Sometime between the date of the assessments of the unpaid taxes and the demand letter, Pryor and Frazier ceased doing business.

Frazier and Williams Bonds

¶ 13. Travelers issued performance bonds to Frazier and Williams for various projects in Tupelo, Mississippi. In conjunction with these bonds, Travelers issued the Tax Commission’s form tax rider as required by statute. On or about October 27, 2008, the Tax Commission forwarded to Travelers a demand that it pay within ten days $200,921 in taxes, penalties, and interest owed the State of Mississippi.

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63 So. 3d 453, 2011 Miss. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fidelity-guaranty-insurance-co-v-blount-miss-2011.