Southside, Inc. v. Mississippi Department of Revenue Ex Rel. Morgan

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2013-SA-01905-SCT

SOUTHSIDE, INC. d/b/a WINES, ETC., AND
BARRY AND SARABETH ARTZ

v.

MISSISSIPPI DEPARTMENT OF REVENUE BY
AND THROUGH THE COMMISSIONER,
EDWARD MORGAN

DATE OF JUDGMENT: 09/27/2013
TRIAL JUDGE: HON. DOROTHY WINSTON COLOM
TRIAL COURT ATTORNEYS: JEFFREY C. SMITH
JAMES L. POWELL
ABIGAIL MARSHALL MARBURY
COURTNEY BRADFORD SMITH
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: JEFFREY C. SMITH
COURTNEY BRADFORD SMITH
ATTORNEYS FOR APPELLEES: JAMES L. POWELL
ABIGAIL MARSHALL MARBURY
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: AFFIRMED - 11/20/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE DICKINSON, P.J., KITCHENS AND CHANDLER, JJ.

DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1. Taxpayers appealed a Board of Tax ruling without satisfying the statutory

requirements of paying the disputed taxes under protest before appealing or posting a surety

bond with their appeal. Because the chancery court lacked appellate jurisdiction to hear the

appeal, the chancellor granted the Department of Revenue’s motion to dismiss. We affirm.
 FACTS AND PROCEDURAL HISTORY

¶2. In June 2011 the Department of Revenue assessed additional individual, sales, and

corporate taxes against Barry and Sarabeth Artz and their business, Southside, Inc., doing

business as Wines, Etc. (“the taxpayers”). The taxpayers appealed to the Board of Review,

where the assessments were affirmed. The taxpayers then appealed to the Board of Tax

Appeals.

¶3. On January 16, 2013, the Board of Tax Appeals upheld the additional assessments.

On February 5, 2013—after exhausting their administrative remedies—the taxpayers

appealed the Board of Tax Appeals ruling to the Lowndes County Chancery Court. The

taxpayers did not pay their taxes under protest before filing their appeal, nor did they post

a surety bond with their appeal. The Department of Revenue filed a motion to dismiss the

taxpayers’ appeal for lack of appellate jurisdiction and failure to state a claim, which the

chancery court granted. Aggrieved, the taxpayers appealed to this Court.

ANALYSIS

¶4. This Court reviews a trial court’s grant of a motion to dismiss de novo.1 Section 27-

77-7 of the Mississippi Code gives the chancery court appellate jurisdiction to hear appeals

from the Board of Tax Appeals.2 The statute provides that “[t]he findings and order of the

Board of Tax Appeals . . . shall be final unless the agency or the taxpayer shall, within sixty

1
Children’s Med. Grp., P.A. v. Phillips, 940 So. 2d 931, 933 (Miss. 2006) (citing
Webb v. DeSoto Cnty., 843 So. 2d 682, 684 (Miss. 2003)).
2
Khurana v. Miss. Dep’t of Revenue, 85 So. 3d 851, 855 (Miss. 2012) (citing Akins
v. Miss. Dep’t of Revenue, 70 So. 3d 204, 209 (Miss. 2011)).

2
(60) days from the date of the order, file a petition in the chancery court appealing the

order.” 3

¶5. The statute further requires that “[a] petition filed by a taxpayer . . . that appeals an

order of the Board of Tax Appeals affirming a tax assessment shall be accompanied by a

surety bond.” 4 However, “[a]s an alternative to the posting of bond, a taxpayer appealing an

order of the Board of Tax Appeals affirming a tax assessment may, prior to the filing of the

petition, pay to the agency, under protest, the amount ordered . . . to be paid.” 5

¶6. We have held that “the chancery court is without appellate jurisdiction over an appeal

filed under Mississippi Code Section 27-77-7 that is not in full compliance with the statutory

requirements.” 6 In this case, the taxpayers failed to comply with the statutory requirements

by either paying their taxes under protest before appealing, or posting a surety bond with

their petition. So the chancery court lacked appellate jurisdiction over the taxpayers’ appeal.

And the chancellor properly dismissed their petition.

¶7. The taxpayers also have raised the question of what procedure controls appeals filed

under Section 27-77-7. The taxpayers argue that the Mississippi Rules of Civil Procedure

apply and that the chancellor should have applied Mississippi Rule of Civil Procedure 6(e)

when she calculated the sixty-day filing period. The Department of Revenue counters that

the Mississippi Rules of Civil Procedure do not apply to tax appeals filed in chancery court

3
Miss. Code Ann. § 27-77-7(1) (Rev. 2013).
4
Miss. Code Ann. § 27-77-7(3).
5
Id.
6
Khurana, 85 So. 3d at 855.

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and that the Mississippi Rules of Appellate Procedure apply instead. We agree with the

taxpayers’ assertion that the Mississippi Rules of Civil Procedure apply, but we disagree that

Rule 6(e) should have been used to calculate the filing period and we clarify when our Court-

made rules begin to apply.

¶8. Absent legislative authority, taxpayers have no right to appeal decisions of the Board

of Tax Appeals.7 The Legislature has authorized such appeals to be filed in chancery court.8

As this Court previously has explained, we diligently guard “the Legislature’s prerogative

to set forth in legislation whatever substantive, pre-suit requirements for causes of action,

and prerequisites to filing suit, it deems appropriate.”9 Consequently, this Court’s procedural

rules have no application until litigation is filed in a court.10

¶9. Because the procedures at issue—the calculation of the period of time to file the

appeal—control matters that take place before the filing of the appeal, this Court is without

authority to require the calculation to be made using our Court-made rules of procedure. The

proper source for the calculation procedure is Section 1-3-67, which provides that “the day

of the act, event[,] or default . . . shall not be included. The last day of the period so

computed shall be included unless it is a . . . Sunday.” 11

7
Id.
8
Miss. Code Ann. § 27-77-7.
9
Wimley v. Reid, 991 So. 2d 135, 139 (Miss. 2008).
10
Id.
11
Miss. Code Ann. § 1-3-67 (Rev. 2014).

4
¶10. When a party presents a complaint, appeal from an agency, or other pleading, to the

judicial system for filing, the rules promulgated by this Court will apply.12 This is perfectly

consistent with our recent holding that the Mississippi Rules of Civil Procedure govern

Section 27-77-7 tax appeals—once they are filed—in chancery court.13 Indeed, “[t]he

chancery court proceedings mark the first time a taxpayer may judicially challenge the

legality of the [Board of Tax Appeals’] final decision.” 14

¶11. Accordingly, we must reject the taxpayers’ argument that Rule 6(e) of the Mississippi

Rules of Civil Procedure should have been used to calculate the sixty-day appeal period. We

are without authority to hold otherwise.

¶12. Applying Section 1-3-67 to the facts before us, the sixty-day period began on January

16, 2013—the date the Board issued its ruling—and expired on Monday, March 18, 2013.

Although the chancellor properly calculated the filing period, she applied the wrong counting

rule. Regardless, the taxpayers’ appeal fails because they neither paid their taxes under

protest before appealing nor posted a surety bond with their appeal.

CONCLUSION

12
Newell v. State, 308 So. 2d 71, 76 (Miss. 1975) (citing Matthews v. State, 288 So.
2d 714 (Miss. 1974); Gulf Coast Drilling & Exploration Co. v. Permenter, 214 So. 2d 601
(Miss. 1968); S. Pac. Lumber Co. v. Reynolds, 206 So. 2d 334 (Miss. 1968)) (“The inherent
power of this Court to promulgate procedural rules emanates from the fundamental
constitutional concept of the separation of powers and the vesting of judicial powers in the
courts.”); see also Miss. Const. art. 6, § 144 (“The judicial power of the state shall be vested
in a Supreme Court and such other courts as are provided for in this constitution.”).
13
Fishbelt Feeds, Inc. v. Miss. Dep’t of Revenue, No. 2013-SA-00299-SCT, 2014
WL 3891632, at *3 (Miss. Aug. 7, 2014).
14
Equifax, Inc. v. Miss. Dep’t of Revenue, 125 So. 3d 36, 42 (Miss. 2013)
(interpreting prior version of Mississippi Code Section 27-77-7) (emphasis added).

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¶13. We affirm the chancellor’s judgment because the taxpayers failed to comply with the

requirements of Section 27-77-7, rendering the chancery court without appellate jurisdiction

to hear the appeal.

¶14. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.

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