Oklahoma Tax Commission v. City Vending of Muskogee, Inc.

1992 OK 110, 835 P.2d 97, 63 O.B.A.J. 2287, 1992 Okla. LEXIS 157, 1992 WL 167304

• Court: Supreme Court of Oklahoma
• Decided: July 14, 1992
• Docket: 65602
• Status: Published

Opinions

PER CURIAM:

Appellant, City Vending of Muskogee, Inc. (City Vending), was an Oklahoma based wholesaler of cigarettes licensed by appellee, the Oklahoma Tax Commission (OTC).¹ Wholesalers are required to purchase and affix tax stamps to cigarettes² with certain exceptions.³ On May 31, 1985, after auditing City Vending, OTC mailed a proposed tax assessment to it for distribution and sale of unstamped cigarettes. OTC also sought to cancel and/or revoke City Vending’s wholesale license for its failure to affix cigarette tax stamps.⁴ City Vending protested the assessment and defended against revocation of its license on two grounds. It argued the sales at issue were made to Indian Tribes and the transactions were therefore exempt by virtue of the Indian Commerce Clause of the United States Constitution. U.S. CONST, art. 1, § 8, cl. 3.⁵ City Vending also asserted OTC discriminatorily applied the cigarette tax laws against in-state wholesalers, while not seeking any assessment against out-of-state wholesalers who also sold cigarettes to Indian Tribes. Presently, only the first defense is involved.⁶

The assessment and revocation matters were eventually combined, apparently by agreement of the parties, and were presented to an administrative law judge. After hearing(s) the judge issued Findings, Conclusions and Recommendations which recommended the protest be denied and the license canceled. OTC adopted the Findings, etc. of the administrative law judge as the Order of the Commission. No appeal by City Vending was perfected to this Court as allowed by 68 O.S.1981, § 225 and the order was allowed to become final.⁷

Shortly after the order was issued OTC filed a proceeding in Muskogee County District Court to enjoin City Vending from continuing to sell cigarettes without a license. The instant appeal is from the trial judge’s granting of the requested injunction.⁸ City Vending claims the OTC order revoking its license was void ab ini-tio, or facially void, for lack of jurisdiction.⁹ The Court of Appeals found the order was not void, that it could and should have been the subject of appeal to this Court under § 225 and because it was not it became final and impervious to collateral attack. Accordingly, the Court of Appeals affirmed the trial court’s granting of a permanent injunction.

City Vending asserts the facial invalidity of the OTC order is contained in the following quotation from the administrative law judge’s Findings, Conclusions and Recommendations: “[t]hat [OTC] is without jurisdiction to determine the constitutional questions presented and asserted by [City Vending]”. It argues that because OTC was without authority to determine the constitutional defense(s) presented OTC was without jurisdiction to enter any order revoking its license with the constitutional defense left unresolved. We do not agree.

Assuming, without deciding, OTC was without authority to determine the constitutional defense(s) because it has no power to either rule a legislative enactment unconstitutional or because it likewise lacks authority to grant an exemption from an unambiguous legislative taxing scheme that does not provide for the claimed ex-eruption,¹⁰ this does not mean a decision either to uphold a proposed tax assessment or to revoke a license like that at issue here is facially void. In a related case, the United States Court of Appeals for the Tenth Circuit stated:

On appeal, [City Vending] asserts the OTC determination upholding the first tax assessment was void because the OTC did not have jurisdiction to consider the constitutional claims. This argument is unpersuasive because the OTC did not address the constitutional claims contrary to its authority, but rather held it lacked authority to consider those claims.¹¹

Although we are not bound by the Tenth Circuit’s determination and we realize the situation before it was presented in the context of a bankruptcy proceeding where only the tax assessment part of the order was in issue, we find its determination on the voidness issue to be persuasive. The simple fact is that although OTC may not have been able to determine the constitutional defenses raised by City Vending before it we had the authority to consider those defenses on appeal and City Vending cannot now claim the order of OTC was void because it did not have authority to definitively determine the constitutional defenses.¹²

Normally our inquiry would end here. However, because City Vending claims all the sales it made were wholly exempt from state taxation by virtue of the Indian Commerce Clause and presumably that such fact ousted State authorities of all jurisdiction to tax any such sales, we feel compelled to answer the Commerce Clause question.

Although City Vending appears to admit in its submissions to this Court cigarettes it sold in this case to Indians and/or Indian Tribes for resale at the retail level by the tribes or tribally related smoke shops would only be tax exempt from the excise tax if made to members of the involved tribe it asserts its dealings are nonetheless completely tax exempt under the Indian Commerce Clause and State authorities must seek a remedy directly against a Tribe or the smoke shop retailer. We do not agree.

In Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, — U.S. -, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991), the United States Supreme Court held that retail sales of cigarettes by tribal sellers to nontribal members were subject to Oklahoma tax. — U.S. at-, 111 S.Ct. at 911. However, in the same .opinion the Supreme Court held a Tribe could not be sued by State tax authorities because Indian Tribes retain sovereign immunity from nonconsen-sual suit by the State. Id., — U.S. at -, 111 S.Ct. at 909-910. The Supreme Court realized this latter ruling barred the State from pursuing the most efficient remedy to collect taxes on nonexempt sales, i.e. sales to nontribal members. It accordingly stated the following, “[a]nd under today’s decision, States may of course collect the sales tax from cigarette wholesalers, either by seizing unstamped cigarettes off the reservation ... or by assessing wholesalers who supplied unstamped cigarettes to the tribal stores_” (citations omitted) Id., — U.S. at -, 111 S.Ct. at 912. Accordingly, City Vending is wrong that the Indian Commerce Clause exempts all sales by a wholesaler to an Indian Tribe.

One may, however, argue that because the State only has authority to tax final retail sales to nontribal members and OTC made no distinction in this case between sales at the retail level ultimately made to tribal members and those made to nontribal members it had no authority to revoke the license. We do not believe any such argument assists City Vending in the present case. No record has been presented to us which would show to whom the ultimate retail sales were made by the involved Tribes or smoke shops City Vending wholesaled cigarettes. This record only shows City Vending sold to Indians and/or Indian Tribes at the wholesale level for resale within Oklahoma. Once this fact is established, which without some exemption would be a violation of our cigarette tax laws, it was City Vending’s burden to show some valid exemption existed which would make its sales tax exempt. The instant record does not show any such exemption.¹³ Furthermore, in that only sales to tribal members would be exempt from the reach of Oklahoma’s tax laws and the face of the record we have been provided does not explicitly show any retail sales to tribal members which would be exempt we cannot conclude OTC lacked jurisdiction to revoke City Vending's license nor that the trial court erred in permanently enjoining City Vending from continuing to wholesale cigarettes after its license was revoked.¹⁴

Accordingly, the opinion of the Court of Appeals is Vacated and the trial court is Affirmed.

HODGES, V.C.J., and LAVENDER, SIMMS, HARGRAVE and WATT, JJ., concur. WILSON, J., concurs specially. OPALA, C.J., concurs in judgment. KAUGER and SUMMERS, JJ., dissent.

ORDER

The petition for rehearing of Appellee, the Oklahoma Tax Commission is granted and this Court’s opinion promulgated on April 23, 1991 and reported at 62 O.B.J. 1377 is withdrawn and replaced by the opinion filed this date.

DONE BY ORDER.

1 . Cigarette wholesalers were and are required to be licensed. 68 O.S.1981, § 304, now 68 O.S. 1991, § 304. Although certain statutes involved in this case have been changed since the filing of the instant appeal and the proceedings occurring herein before the trial court and OTC, the statutory provisions covering the instant matter are those found in the 1981 Oklahoma Statutes. Accordingly, references in this opinion will be to the 1981 versions of pertinent statutes, unless otherwise specified.

2 . 68 O.S.1991, § 305.

3 . See e.g. 68 O.S.1991, § 310 (exemption for cigarettes sold in interstate commerce after filing of proper bond) and 68 O.S.1991, § 321 (exemption for cigarettes sold to veteran’s hospitals and state operated domiciliary homes for veterans for sale to ex-service men or women and sales to United States). City Vending does not argue either of these statutory exemptions were intended to apply to the sales at issue in this case.

4 . The relevant statute setting out the procedure to cancel a license granted by OTC for violation of the tax laws was 68 O.S.1981, § 212.

5 . U.S. CONST, art. 1, § 8, cl. 3 provides: Congress shall have power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes".

6 . The three issues and errors set forth in City Vending's petition in error and amendment to petition in error were as follows:

“1. Is the wholesale of cigarettes to an Indian Tribe exempt from state tax pursuant to the Commerce Clause?

2. Should the license have been revoked since City Vending has filed the case on the constitutional question, after paying the contested taxes, pursuant to 68 O.S. § 226?

3. Was the order of the Tax Commission void due to the finding of the Tax Commission that it did not have jurisdiction of the issue involved upon which taxes were assessed and the subject license revoked?”

Errors not presented by the petition in error will not be considered on appeal. Kirschstein v. Haynes, 788 P.2d 941, 955 (Okla.1990); Martin v. Harrah Independent School District, 543 P.2d 1370, 1376 (Okla.1976). In essence, the second defense raised by City Vending before OTC is based on an alleged reverse discrimination favoring interstate commerce and burdening intrastate transactions. We in no way view this second purported defense presented by the issues or errors set forth above. We further note in its initial brief of appellant City Vending also argued OTC should be estopped from any argument sales to Indian Tribes were not tax exempt. The assertion was based, in part, on a 1978 letter of an OTC official with the Sales and Use Tax Division of OTC to a Tribal Administrator of the Citizen Band Potawatomi Indians to the effect OTC recognized the tax exempt status for sales tax purposes of the Tribe's purchase of tangible personal property. City Vending says there should be no distinction between the sales tax and the cigarette excise tax involved here. City Vending also based its estoppel theory on OTC’s alleged treatment of cigarette sales by out-of-state wholesalers to Indian Tribes as tax exempt and its treatment of the instant matter that the sales by City Vending, an in-state wholesaler, were not. We will not consider these arguments for the reason no estoppel argument was contained in the petition in error or the amendment to petition in error filed in this Court. Id.

7 . 68 O.S.1981, § 225(f) [now 68 O.S.1991, § 225(g) ] provides an avenue to appeal directly to this Court any order, judgment, finding or ruling of OTC other than one assessing a tax. This provision clearly applies to a license revocation. Other subsections of § 225 also would have allowed an appeal directly to this Court from that part of the final order assessing the tax. City Vending appears to allude in its cer-tiorari petition to a rationale for its failure to appeal under § 225, although it never even refers to § 225 in its petition for certiorari. It appears to say it did not appeal, or, at least, follow through with an appeal under § 225 to this Court, because OTC required a 3 million dollar bond to supersede the order of revocation. Section 225(f) allows a party to supersede the effect of an order, etc. of OTC by filing with OTC a bond in an amount fixed by OTC. We, of course, cannot consider any argument attempted to be raised by City Vending in relation to this bond issue for the reason an appellate court, in reviewing a matter on appeal, must have a proper record before it to review any claimed errors. Eckel v. Adair, 698 P.2d 921, 924-925 (Okla. 1984); Holley v. Shepard, 744 P.2d 945, 947 (Okla.1987). There is nothing in the record presented to us in this appeal that such a bond was required by OTC to supersede the license revocation during the pendency of a § 225 appeal. Furthermore, even if such a bond was required by OTC to supersede the effect of the license revocation, no such bond is required merely to appeal to this Court nor are we aware of any law which would prevent this Court from fashioning relief from an OTC requirement as to superseding the effect of the license revocation deemed inequitable or unnecessary, if so requested by a party to an appeal. However, in that no appeal was perfected under § 225 from the OTC order no such request was ever made by City Vending. Finally, we note no issue concerning some unlawful prevention of an appeal under § 225 is contained in the petition in error in this case and for this reason any such issue has been waived by City Vending and will not be considered by us. Kirschstein v. Haynes, supra note 6, at 955.

8 . In addition to the Muskogee County District Court case, City Vending filed an action in Oklahoma County District Court in December 1985 pursuant to 68 O.S.1981, § 226, contesting the tax assessment and praying for a declaration of unconstitutionality of the tax assessment and a refund of the taxes paid. City Vending of Muskogee, Inc. v. Oklahoma Tax Commission, Case No. CJ-85-10772 (Okla. County Dist. Court). On application of OTC we assumed original jurisdiction in said case on March 17, 1986 and issued an order granting a writ of prohibition prohibiting any assigned judge from proceeding further in the case because of a failure to meet the 30 day time limitation imposed by § 226(b) as interpreted in Ladd Petroleum Corp. v. Oklahoma Tax Commission, 619 P.2d 602 (Okla.1980). Oklahoma Tax Commission v. The Honorable Joe Cannon, District Judge, Case No. 65,916 (Okla. S.Ct., unpublished order, March 17, 1986). City Vending does not challenge this ruling in its petition for certiorari nor does it challenge therein the Court of Appeals' ruling in their opinion in this case that § 226 only provides an additional remedy as to a tax assessment, but does not provide an additional remedy or means of appeal as to a license revocation. Accordingly, these issues will not be considered by us as they have been waived by failure to present them in City Vending’s petition for cer-tiorari. Ford v. Ford, 766 P.2d 950, 952 n. 1 (Okla.1988).

9 . A void judgment may be attacked at any time. Hough v. Hough, 772 P.2d 920, 921 (Okla.1989). However, for a judgment to be void it must appear on the face of the judgment roll or record the court rendering the judgment lacked jurisdiction over the parties, the subject matter or the jurisdictional power to render the particular judgment, id. Furthermore, extrinsic evidence of the lack of jurisdiction is not permitted. Id.

10 . We held in part in Dow Jones & Co. v. Oklahoma Tax Commission, 787 P.2d 843, 845 (Okla.1990), that as an administrative agency OTC was powerless to strike down a statute for constitutional repugnancy.

11 . City Vending of Muskogee, Inc. v. Oklahoma Tax Commission, 898 F.2d 122, 125 (10th Cir. 1990), cert. denied, — U.S. -, 111 S.Ct. 75, 112 L.Ed.2d 48 (1990).

12 . See also Dash, Inc. v. Alcoholic Beverage Control Appeals Board, 683 F.2d 1229 (9th Cir. 1982). In Dash liquor licensees contended California’s procedure for revoking liquor licenses denied licensees procedural due process guarantees of the Fourteenth Amendment to the United States Constitution. The licensees argued the process provided no meaningful opportunity to present constitutional defenses to license revocations. Licensees claimed that because article III, § 3.5 of the California Constitution prohibited administrative bodies from declaring statutes unconstitutional or refusing enforcement of statutes on the basis of claims such statutes are unconstitutional and that review of administrative decisions to revoke a liquor license were limited to discretionary review before appellate courts, they were denied due process of law. The Ninth Circuit disagreed. It noted the California courts did have authority to consider the constitutional claims and that during the administrative hearings licensees were given the opportunity to present evidence relevant to all defenses raised, including their constitutional defenses. Id. at 1234. The Ninth Circuit further found that contrary to licensees’ contention review in the California appellate courts was discretionary, review of the revocations in the appellate courts was as of right. Id. at 1235. Accordingly, the Ninth Circuit held the process received by the licensees satisfied the minimal procedural requirements of the Fourteenth Amendment Due Process Clause. Id. at 1235. City Vending did not raise as an issue or error in its petition in error or its amendment to petition in error filed in this appeal a challenge on due process grounds to the statutory process covering the revocation of a cigarette wholesaler’s license. It did, however, allude to a purported lack of due process in its petition for certiorari as another basis for voidness of the OTC order. Like any other issue raised or attempted to be raised by City Vending in post-petition in error (or amendment thereto) submissions, whether based on due process or any other basis, such issues have been waived and will not be considered by us because issues or errors not raised in the petition in error will not be considered on appeal even if later contained in a brief or later submission of the appealing party. See Martin v. Harrah Independent School District, supra note 6 at 1376.

13 . City Vending has argued in at least one submission to this Court there was no evidence in the record before OTC that the Tribes it sold cigarettes to resold the cigarettes at the retail level. It, thus, appears to argue without such evidence all of its sales would be tax exempt because the Tribes or its members may have consumed all the cigarettes or merely again sold the cigarettes at the wholesale level. Such argument(s) are simply not viable on the present record. The Findings, etc. of the administrative law judge, as adopted by OTC in its Order of the Commission contains the following statement of fact:

The facts at issue in the protest of City Vending of Muskogee, Inc. are not in dispute, being that [City Vending] has sold cigarettes to Indians and/Indian tribes for resale within the State of Oklahoma and therein failing to affix thereto cigarette excise tax stamps as required by the laws of the State of Oklahoma.

Findings, etc., pg. 3 at Original Record pg. 6.

We have been provided no transcript or other record of the administrative proceedings before OTC. In an appeal pursuant to § 225 such an administrative record could have been presented to us as prepared by OTC, as certified to by the Secretary of the Commission, upon request of City Vending. 68 O.S.1981, § 225(b). Apparently, neither City Vending nor OTC made any effort to provide the administrative record to the trial court in this case. Only the Findings, etc. of the administrative law judge and the Order of the Commission were attached to the petition of OTC for injunctive relief filed in the District Court of Muskogee County. Clearly, we view the above quote as indicating, at a minimum, that the cigarettes sold by City Vending were resold in Oklahoma and were not merely consumed by a Tribe or tribal members. The quote, however, does not explicitly say to whom the cigarettes were resold or that they were resold at the retail level. City Vending cannot now take advantage of this apparent uncertainty. The burden of proof to show an exemption from the tax laws was on City Vending. Bert Smith Road Machinery Co., Inc. v. Oklahoma Tax Commission, 563 P.2d 641, 643 (Okla.1977); See abo Enterprise Management Consultants, Inc. v. Oklahoma Tax Commbsion, 768 P.2d 359, 362 (Okla.1988) (protesting taxpayer must sustain burden of proving tax assessment was erroneous). Furthermore, error may not be presumed from a silent record, but must be affirmatively demonstrated. Eckel v. Adair, supra note 7 at 924. City Vending has not affirmatively demonstrated on this record any of the Tribes or Indians it sold to did not resell at the retail level or that any resales were made to tribal members.

14 . In that City Vending has failed to show on this record any of its sales were tax exempt we need not determine here if it had whether OTC’s order of revocation would then be void and subject to collateral attack or whether instead it could merely be considered some type of voidable order subject only to attack on direct appeal because OTC exceeded its jurisdiction by assessing a tax and revoking the license even though some, but not all sales were shown to be tax exempt.