MS State Tax Cmsn v. Superior Boat Works

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-60315

IN THE MATTER OF: SUPERIOR BOAT WORKS INC.,
Debtor,

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MISSISSIPPI STATE TAX COMMISSION;
LADY LUCK MISSISSIPPI, INC.;
BLUE SEA DEVELOPMENT, INC.;
ANDREW THOMPKINS,

Appellees,

versus

SUPERIOR BOAT WORKS INC.,

Appellant.

Appeal from the United States District Court
for the Northern District of Mississippi
(4:99-CV-99)

July 17, 2001

Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Superior Boat Works, Inc., (Superior) filed for Chapter 11

bankruptcy relief in the Northern District of Mississippi on June

*
Pursuant to 5TH CIR. R.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opinion should not be published and is not precedent except under the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 5TH CIR. R. 47.5.4.
30, 1993. The Mississippi State Tax Commission (the Commission)

filed a claim against the estate for taxes allegedly due on

Superior’s sale of a gaming barge to Lady Luck of Mississippi,

Inc., Blue Sea Development, Inc., and Andrew H. Thompkins (the

Owners). After a trial on the merits in the resulting adversary

proceeding, the bankruptcy court ruled that no taxes were due. The

Commission appealed to the United States District Court for the

Northern District of Mississippi, which reversed the bankruptcy

court’s order in part in an order dated March 8, 2000. Superior

now appeals from that order pursuant to 28 U.S.C. § 158(d).

Because Superior's appeal was not timely, we dismiss the appeal for

lack of jurisdiction.

Facts and Proceedings Below

In February, 1993, the Owners contracted with Superior, a

Mississippi corporation engaged in the business of constructing and

repairing towboats, barges and similar vessels. The contract

involved the repair and conversion of a damaged tank barge into a

replica of a riverboat to be used as a floating casino. The

contract price was $ 6.4 million. Although the contract was signed

in 1993, this contract was the finalized version of a verbal

agreement which had been entered into some time earlier.

The barge was initially floated to Superior’s dock on Lake

Ferguson in Greenville, Mississippi, where Superior repaired the

barge and erected a three-story casino structure on the barge,

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beginning work in 1992. The vessel was then towed to Natchez,

Mississippi, where Superior completed the final stages of the

project. The vessel is currently operated at its mooring in

Natchez under the name “Lady Luck.”

Superior filed for relief under Chapter 11 of the Bankruptcy

Code in the Northern District of Mississippi on June 30, 1993. The

Mississippi State Tax Commission (the Commission) filed a proof of

claim for taxes due, and Superior filed an objection. By order

dated November 22, 1995, the bankruptcy court held that the

Commission’s claim taxing the transaction between Superior and the

Owners as a residential construction was erroneous, but recognized

that other taxes might be due on the transaction. With leave of

court, the Commission filed an amended proof of claim, asserting

that Superior either owed sales taxes pursuant to Miss. Code § 27-

65-17, or a contractor’s tax pursuant to Miss. Code § 27-65-21.

Following a trial of the adversary proceeding, the bankruptcy court

held that the contractor’s tax did not apply, but that the sales

tax did apply. However, the court also held that the transaction

was exempt from the sales tax under Miss. Code § 27-65-101(1)(c)

since the transaction was for the sale of a vessel or barge by the

builder.

The parties appealed to United States District Court, which

affirmed the application of the sales tax and its exemption,1 but

1
No party has appealed the district court’s ruling that § 27-65-
101(1)(c) exempts the sale of the Lady Luck from sales tax.

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reversed the bankruptcy court’s ruling regarding the applicability

of the contractor’s tax. The district court then remanded the case

to the bankruptcy court for a determination of the amount of tax

due under section 27-65-21. Superior now appeals the district

court's order.

Discussion

All parties to this litigation now argue on appeal that this

Court lacks jurisdiction over the present appeal. However, the

parties differ as to why we lack jurisdiction. The parties raise

two basic issues relating to our jurisdiction in this case: the

timeliness of Superior’s appeal from the order of the district

court, and the appealability of the district court’s order.

Because we hold that Superior's appeal was untimely, we do not

reach the appealability of the district court's order.2

Timeliness of Appeal

Since a timely motion for rehearing tolls the time for appeal

until it is denied, the timeliness of this appeal depends on the

timeliness of Superior’s motion for rehearing before the district

court. See Fed. R. App. P. 6(b)(2)(A)(i). The district court

issued its ruling on Monday, March 8, 2000. According to Superior,

its cross motion for rehearing was mailed on Monday, March 20,

2
Superior asserts that the district court’s order is not final, and
hence is not appealable, because it remanded for further proceedings
which Superior contends are significant rather than ministerial or
mechanical. See, e.g., Geosouthern Energy Corp. v. Chesapeake
Operating, 241 F.3d 388, 391-92 (5th Cir. 2001).

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2000, but the docket shows the filing date of the motion as March

24, 2000. A motion for rehearing must be “filed” within ten days

of a district court’s judgment in a case on appeal from a

bankruptcy court. Fed. R. Bankr. P. 8015. Bankruptcy Rule 9006(e)

states that “[s]ervice of process and service of any paper other

than process or of notice by mail is complete on mailing.”

Superior attempts to evade the requirements of Rule 8015 by arguing

that Rule 9006(e) renders its mailing of its motion for rehearing

a timely filing. Superior’s argument, however, is flawed. “Filing”

a motion with a court and “service” of a motion or other paper are

distinct events. Since Superior’s motion for rehearing was not

actually filed until March 24, over two weeks after the district

court’s original order, its motion was untimely under Rule 8015.3

Since it was untimely, Superior’s motion for rehearing did not

toll the time for appeal, which began to run once the district

court denied the Mississippi State Tax Commission’s timely motion

for rehearing on March 20, 2000. A motion for permission to appeal

was filed with the Clerk of this Court on April 20, and the notice

of appeal was sent by mail on April 21 and was docketed on April

24, 2000. A notice of appeal must be filed with the district clerk

within thirty days after the order of the district court. See Fed.

R. App. P. 4(a)(1)(A), 6(b)(2)(A)(i). The time for appeal runs

from the date of the district court’s order denying the Mississippi

3
The district court denied this untimely motion for rehearing
on April 12, 2000.

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State Tax Commission’s motion for rehearing: March 20, 2000. Fed.

R. App. P. 6(b)(2)(A)(i). Thirty days from March 20 was Wednesday,

April 19, 2000. Even if we treat the motion Superior filed with

the Fifth Circuit Clerk for “permission to appeal” as a notice of

appeal, Superior’s filing was a day late. Superior’s appeal is

untimely under Rule 4(a)(1)(A). Accordingly, we are without

jurisdiction to hear this appeal. See Resident Council of Allen

Parkway Village v. United States Dept. of Housing & Urban

Development, 980 F.2d 1043, 1048-49 (5th Cir.), cert. denied, 510

U.S. 820 (1993).

Conclusion

Because Superior's motion for rehearing was untimely, it did

not toll the time for appeal of the district court's ruling. Since

our holding disposes of this case, we need not address whether the

order of the district court was an appealable order under 28 U.S.C.

§ 158(d). The appeal is therefore

DISMISSED

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