Wortley v. Gerard

• Court: Superior Court of Maine
• Decided: August 18, 2005
• Docket: KENap-04-096
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KENNEBEC, ss. DOCKET NO. AP-04-096 -- - Y

JOSEPH G. WORTLEY, JR.,

Petitioner

ORDER ON APPEAL

JEROME D. GERARD, ACTING EXECUTIVE DIRECTOR OF MAINE REVENUE SERVICES, , .+_,- -Cy.L

Respondent

T h s matter is before the court on motion to dismiss by respondent Maine

Revenue Services. Petitioner has filed a petition for review, titled "Complaint" for a

sales tax assessment of June 18, 2004, pursuant to M.R. Civ. P. 80B. Petitioner alleges

that, as a matter of fact, he could not be held to be a "responsible person" of the Sea Dog

Brewing Company and therefore personally liable for trust funds due the State

according to law

The State Tax Assessor, the respondent, has moved to dismiss the petition

pursuant to M.R. Civ. P. 12(b)(l) on the grounds that the court lacks subject matter

jurisdiction. He alleges that the petitioner failed to timely request reconsideration of the

assessment under appeal as required by 36 M.R.S.A. 5 151 and therefore is without ,' authority to review the matter.

On June 18,2004, the State Tax Assessor, pursuant to 36 M.R.S.A. 55 141 and 177,

assessed the petitioner for sales tax, interest and penalties owed by the Sea Dog

Brewing Company. The petitioner received the assessment on June 21,2004. Under the

provisions of 36 M.R.S.A. 5 151, the petitioner had 30 days to request reconsideration of

the assessment. The petitioner did not make such a request until July 26, 2004, and the respondent determined that the request for reconsideration was not timely filed and

adopted the assessment in full. However, the Assessor, in h s letter of November 29,

2004, denying reconsideration, exercised h s limited discretionary authority under 36

M.R.S.A. 5 142 and considered the matter as a request for abatement but determined

there were no grounds to abate the taxes assessed.

In support of its motion, respondent notes that portion of 36 M.R.S.A. § 151

governing the jurisdictional issue in such a case:

If a person receives notice of an assessment and does not file a request for reconsideration witlun the specified time period, the Assessor may not reconsider the assessment pursuant to tlus section and no review is available in Superior Court regardless of whether the taxpayer subsequently makes payment and requests a refund.

Respondent cites McKenzie v. Maine Employment Sec. Comm'n, 453 A.2d 505, 509 (Me.

1982) for the proposition that time periods contained w i h n section 151 are

jurisdctional and mandatory ("The specific periods of appeal statutorily affixed to the

several steps in the chain of administrative review are jurisdictional and mandatory.").

"If a party does not file an appeal w i h n the statutory period, the Superior Court has no

legal power to entertain the appeal." City of lmiston v. Maine State Employees Ass'n, 638

A.2d 739, 41 (Me. 1994) (petition for review filed just one day late was insufficient to

confer subject matter jurisdiction upon court).

Respondent argues excusable neglect and seeks the sympathy in ruling of the

court. The petitioner further argues that the notice sent to the petitioner of the

assessment did not contain the explanation of petitioner's rights and obligations

regarding appeal contrary to the assertion by the respondent. Petitioner has not,

however, provided any citation for such a legal requirement nor any precedent vacating

the statutory time limit by virtue of such failure. The court further notes, to the extent petitioner is seelung relief under M.R. Civ. P. 60(l)(b),that such a rule does not confer

jurisdction on the court in the face of 'a statutory mandate.

Finally, the court notes that to the extent the assessment in tlus case proceeded

pursuant to 36 M.R.S.A. § 142, that provision makes it clear that, "The decision of the

Assessor pursuant to tlus section not to abate all or any part of any tax assessed under

tlus Title is not subject to review under section 151."

Inasmuch as the court is without authority to review the assessment, the entry

will be:

ORDERED: James G. Wortley, Jr.'s petition for review of final agency action is DISMISSED.

Dated: August iP, 2005 0 Donald H. Marden Justice, Superior Court Date F i l e d 1 7 / 3 0 / 0 4 -her Docket No. AP04-96 County

Action Petition for Review 80B

,yeltroW( Jr. Maine Revenue Services I Plaintiff's Attorney VS.

e. Defe da s At 9ry kL!?'i$, Joseph T. Walsh, Jr., Esq. M h b a d x ~ r AAG , 6 State Street 6 State House Station Bangor, Maine 04401 Augusta, Maine 04333-0006

'I- Date of - - -

Complaint, Appeal from Maine Revenue Services, filed. slWalsh, Jr., Esq. Letter entering appearance, filed. s/Miller, AAG Affidavit, filed. s/~ortley,Jr. Original Summons with return service made upon Maine Revenue Services on 1/7/05 Joint Motion for Order Specifying Future Course of Proceedings with Memorandum of Law, filed. s/Walsh, Esq. & Miller, AAG. Proposed Order, filed.

ORDER SPECIFYING FUTURE COURSE OF PROCEEDINGS, Studstrup, J. (Discovery to be complete 8 months from date of order and motions due with 2 months of close of discovery) Copies mailed to attys of record.

Notification of Discovery Service, filed. s/Walsh, Jr., Esq. Plaintiff's Request for Production of Documents Propounded Upon Defendant, Jerome D. Gerard, Acting Executive Director, Maine Revenue Services served on Michael Miller, Asst. A.G. on 3/14/05

Notice of Withdrawal and Appearance of Counsel, filed. s/Miller, AAG s/~elly,AAG

Notification of Discovery Service, filed. s/Kelly, AAG Maine Revenue Services' Response to Petitioner's Request for Production of Documents served on Joseph T. Walsh, Esq. on 4/12/05 Maine Reven.ue Services' Motion to Dismiss with Incorporated Memorandum of Law; Affidavit of Philip Young; Exhibits A-E and Proposed Order, filed. s/E. M. Kelly, AAG Motion to Extend Time to Respond to Motion to Dismiss, filed.