dissenting.
I respectfully dissent because the Court of Appeals correctly reversed the summary judgment entered by the circuit court. Kentucky law precludes the right of Inland to recover utility taxes paid under the circumstances in this case. There is no statutory authority for a refund.
Pursuant to Martin Marietta Aluminum, Inc. v. Hancock County Board of Education, 806 F.2d 678 (6th Cir.1986), Inland must demonstrate that the taxes were invalid and involuntarily paid, or that the taxing authority engaged in misrepresentation. Inland cannot show any of these requirements and consequently is not entitled to a refund. The local utility tax and regulation are both valid. Inland was only required to prove that it had a right to the exemption. This does not cause the tax to be invalid. The local regulation is rationally related to the legitimate purpose of providing for state school finances.
The interpretation placed on Great Atlantic and Pacific Tea Company v. City of Lexington, Ky., 256 Ky. 595, 76 S.W.2d 894 (1934), by the Court of Appeals was correct. It applied to situations where there is no tax authorized and misrepresentations cause a taxpayer to pay the tax anyway. Inland was under no compulsion to pay the tax and voluntarily paid the tax without any protest.
*380The argument that Inland paid the taxes involuntarily because of KRS 160.648, which provides a manufacturer is subject to sanctions for failure to timely submit its utility tax payment is misplaced because that statute only provides penalty for taxes that are past due — that is — taxes owed but not paid, and not for “excess taxes.” Inland, just as the taxpayer in Martin Marietta, supra, had several options to establish its right to the exemption which it did not explore. The availability of a judicial remedy by which to challenge the tax and the regulation, as well as a claim for exemption, and the lack of any immediate sanctions results in the taxes paid by Inland to be voluntary.