dissenting.
I respectfully disagree with my brethren. KRS 139.760(3) is clear and unequivocal. The General Assembly has said:
No suit shall be maintained in any court to restrain or delay the collection or payment of any taxes levied by this chapter. [Emphasis added.]
Despite this express proscription, the circuit court’s so-called “protective order” purports to delay the assessment, and perforce the collection and payment, of taxes levied under Chapter 139.
The suit having been filed in direct contravention of the statute, the Jefferson Circuit Court lacked jurisdiction, and its orders are, in my opinion, void and of no effect.
The majority opinion permits any taxpayer in this state to file a similar action in his/her home county when being audited. The Cabinet lacks the personnel to resist these claims. The Commonwealth will soon feel the cramp in its collection efforts.
The action of the Secretary in issuing the summons and/or subpoena duces tecum may or may not have been oppressive. Respondent has an adequate remedy provided by the statute through the agency and then to the tax court, as well as the opportunity to resist the agency’s enforcement action in circuit court.
I am not impressed by the “concessions” of respondents’ counsel at oral argument. I am sure they meant what they said, but who is to prevent the Cherrys from dis*573charging them and taking the position that nothing could be done pending the final resolution of the matter in the circuit court?
The wisdom of the statutory prohibition is not hard to fathom. It simply says to the taxpayer, when you are being audited you can do nothing in any other court. Your remedies are within the agency itself, and the tax court; and then judicial review.
LAMBERT and VANCE, JJ., join in this dissenting opinion.