UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30448
Summary Calendar
UNITED ARTISTS THEATRE CIRCUIT INCORPORATED;
LANDMARK THEATER CORPORATION; MOVIES INCORPORATED,
Plaintiffs-Appellants
VERSUS
CITY OF NEW ORLEANS, DEPARTMENT OF FINANCE,
MARINA M. KAHN, DIRECTOR,
Defendant-Appellee
Appeal from the United States District Court
For the Eastern District of Louisiana
(95-CV-17-D)
October 22, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Appellants United Artists Theatre Circuit Inc., Landmark
Theater Corporation and Movies Inc. appeal the district court’s
dismissal of appellants’ action for declaratory judgment and tax
refund. Appellants challenged the constitutionality of Article IV,
Chapter 150 of the Code of the City of New Orleans (the “Amusement
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Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
Tax”), which imposes a 5% tax on the gross receipts of many
entities engaged in entertainment activities. The district court
found, among other things, it did not have jurisdiction over the
case under 28 U.S.C. §1341. The district court was correct in its
finding it had no jurisdiction over the appeal, and acted properly
in dismissing the suit. Smith v. Travis County Educ. Dist., 968
F.2d 453 (5th Cir. 1992).
28 U.S.C. § 1341, the Tax Injunction Act, provides:
The district courts shall not enjoin, suspend or restrain
the assessment, levy or collection of any tax under State
law where a plain, speedy and efficient remedy may be had
in the courts of such State.
Chapter 150, Section 192 of the Code of the City of New Orleans
addresses the remedy afforded taxpayers who dispute the legality of
the tax. That section directs that the protesting taxpayer pay the
tax, and at the time of payment give notice to the director of the
department of finance of his intention to file suit. Suit must be
filed within thirty days. If the protesting taxpayer who brings
the suit prevails, his taxes will be refunded with interest.
This remedy provides “a meaningful opportunity to secure
postpayment relief for taxes already paid” under a system the
appellants claim is unconstitutional. McKesson Corp. v. Division
of Alcoholic Beverages and Tobacco, 496 U.S. 18, 22 (1990). As
such, it satisfies the requirements of § 1341.
While the district court acted properly in dismissing the
suit, it was incorrect in making further findings once it found
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itself without jurisdiction to hear the case. See Smith, 968 F.3d
at 454-56. For that reason, the district court erred when it ruled
the appellants had no standing to bring this action.
We decline to consider the other issues raised in this appeal
since we find this action is barred in federal court by the Tax
Injunction Act. That finding is dispositive.
The opinion and judgment of the district court is VACATED and
the case is REMANDED with instructions to dismiss pursuant to 28
U.S.C. § 1341.
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