dissenting. The petition for rehearing filed by the Department of Finance and Administration (DFA) in this case does little more than reargue the points as they were argued in DFA’s original brief. Those points were fully aired in the original majority and dissenting opinions. (The original majority opinion appears as an appendix to this dissenting opinion.) The petition for rehearing, therefore, is distinctly violative of Rules of the Supreme Court and Court of Appeals of the State of Arkansas 2-3(f), and it should be denied summarily. Not only does the majority ignore our established rule on that point, it overrules recent precedent and rides roughshod over taxpayers whose money may have been illegally collected by the State. All of that is done in the name of sovereign immunity, which has been waived by the General Assembly.
The majority opinion rehashes the arguments which led to our original decision in this case. It states as a main point that the majority and dissenting opinions in Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991), a case upon which the original majority opinion relied, did not mention sovereign immunity. The suggestion seems to be that, because the decision did not mention sovereign immunity, it does not apply to this case. That is incorrect.
A main issue in the Pledger case was whether it was necessary for each member of the purported class of taxpayers seeking a refund of state income taxes to have filed for a refund as a prerequisite for membership in the class. At issue there, as here, was Ark. Code Ann. § 26-18-507, the statute by which the General Assembly waived sovereign immunity. While the opinion did not mention sovereign immunity, it held that the statute did not require a refund request by each member of the class. This Court agreed with the argument that requiring strict compliance with the statute would “ignore one of the bases for class action suits, i.e., to deal with these types of issues in a single action rather than requiring all members of a class to bring suit.”
The opinion granting rehearing concludes that government might have to “shut down some essential services” if the taxpayers are allowed to proceed as a class in a case such as this one. The argument is not convincing. The opinion focuses on the need of government to have notice of its possible liability. It does not, however, suggest why, as in a case such as this one, the notice given by one taxpayer should not be sufficient to inform the government that it may owe all who are similarly situated.
The sky is indeed not falling in this case or in others for which the Pledger decision should be precedent. Ed Hicks, the Excise Tax Administrator, testified that the General Assembly appropriates $50,000,000 biennially for the miscellaneous tax account for the purpose of making refunds. In response to a question by the Chancellor, Mr. Hicks stated there was plenty of money in that account to satisfy the claims at issue in this case. Contrary to the conclusion of the majority, government obviously has the ability to plan for and accommodate claims such as the one under consideration.
The Chancellor’s order, approved by the original majority opinion in this case, would have required notice to the taxpayers of the facts giving rise to claims, i.e., the allegation that the tax had been illegally collected. It would have then required each taxpayer seeking membership in the class to present proof of payment of the tax at issue and make a claim to a master for refund.
The effect of the majority opinion granting rehearing is to suggest that DFA may sit by smugly and entertain the claims of the one or two taxpayers who may have information about the possible illegality of the tax in question, knowing all the while that there are thousands of others who may be owed but with whom it will never have to reckon.
Once again, it must be pointed out that it is the announced policy of DFA to treat all taxpayers alike. Assuming that is the policy to be applied, it should make no theoretical difference to DFA or the State’s coffers whether the action proceeds as a class action or as a single claim by Ms. Staton if she prevails. It will, however, make a great practical difference to the others to whom the money may be owed. If the class action were allowed to proceed, taxpayers would be afforded notice pursuant to Ark. R. Civ. P. 23(c) which requires “the best notice practicable under the circumstances.” Denial of the class action will undoubtedly result in many persons who may be owed refunds remaining ignorant of the fact. As the majority of the members of this Court stated in the original opinion in this case, avoidance of payment of money owed is not a good reason for refusal of a class action.
I respectfully dissent.
Corbin and Brown, JJ., join.APPENDIX TO DISSENTING OPINION
This is a class-action tax-refund case. The appellee, Debora Staton, sued the Department of Finance and Administration (DFA) on behalf of herself and other taxpayers for refunds of sales taxes {>aid on purchases of extended warranty agreements. The Chancel- or certified the class action in accordance with Ark. R. Civ. P. 23(a). Although requests for an accounting and an injunction ax were denied, the Chancellor merits and ordered refunds to taxpayers who seek them.
1. Appeal
Several issues are presented. DFA attacks the jurisdiction of the Chancellor to hear the suit as a class action because of failure to name a class of persons who have followed the statutory procedure to obtain a tax refund. The class counters with a claim that the class certification has not been appealed in a timely manner. On the merits, DFA contends the tax law, as interpreted for many years by DFA, permits collection of the tax. On cross-appeal, the class contends the Chancellor erred in refusing to enjoin the DFA from continuing to collect the tax and in refusing to require an accounting to class members who had paid the tax rather than to those who come forward with claims. We hold the Chancellor did not err on any of the points asserted.
a. Timeliness of appeal
The order certifying the class was entered May 8, 1995, and the notice of appeal from the final judgment was not filed until December 13, 1995. Although interlocutory, an order granting a motion to certify a case as a class action “in accordance with Rule 23 of the Arkansas Rules of Civil Procedure” is appealable. Ark. R. App. P. 2.(a)9. DFA does not question the class’s compliance with the basic requirements of Rule 23. It contends, rather, that sovereign immunity, Ark. Const, art. 5, § 20, precluded the Chancellor from having subject matter jurisdiction of the claim made by the class because its purported members have not complied with the provisions of the statute granting permission to sue the State and thus waiving sovereign immunity.
As the issue on appeal goes beyond the technical aspects of class certification, we do not regard it as untimely. Even if DFA had appealed within 30 days of the class certification, it is doubtful that we would have entertained its sovereign immunity claim upon interlocutory appeal. Arkansas State Bd. of Educ. v. Magnolia Sch. Dist. No. 14, 298 Ark. 603, 769 S.W.2d 419 (1989).
b. Subject-matter jurisdiction
Upon the purchase of a vehicle, Ms. Staton, the class representative, paid a sales tax of $49.28 on the price she paid for an extended warranty. She filed a claim for a refund from DFA which denied the claim. Ms. Staton then filed an action in Chancery Court on behalf of herself and on behalf of other similarly situated taxpayers. The amended complaint alleged that DFA was unlawfully imposing a tax on the prices paid by members of the plaintiff class for extended warranty coverage on automobiles. It asserted that the Arkansas Gross Receipts Act did not authorize the imposition of such a tax and sought a refund of the taxes paid on the sale of extended warranties. The complaint also prayed for an injunction to stop DFA from collecting the tax and for an accounting to determine which taxpayers had paid the tax. It would thus have put the onus of determining who had paid the tax, and thus of determining who was potentially entided to a refund, upon DFA.
DFA moved to dismiss on the ground that it failed to state facts upon which relief could be granted and on the ground that Ms. Staton lacked standing. After Ms. Staton filed a second amended complaint, DFA again moved to dismiss. DFA claimed, as another reason for dismissal, that “the doctrine of sovereign immunity bars a class action tax refund lawsuit where not all of the proposed class members have satisfied the administrative requirements necessary to confer subject matter jurisdiction on this court.”
The order certifying the class recognized as members of the class “all of those parties who have, since July 7, 1991, purchased vehicle service contracts, sometimes referred to as extended warranties, covering motor vehicles within the state of Arkansas.”
The essence of DFA’s sovereign immunity argument is that sovereign immunity prohibits suits against the State except when permission to sue has been granted. The statute granting permission to taxpayers such as Ms. Staton is Ark. Code Ann. § 26-18-507(e)(2)(A) (Repl. 1992) which allows a taxpayer to seek judicial relief from an improperly collected tax after a refund has been sought and there has been no timely response from “the director” or the request has been refused. As the complaint in this case seeks relief for a class of persons without specifying that they must have followed the statutory refund procedure, DFA contends the concept of sovereign immunity precluded subject-matter jurisdiction in the Chancery Court.
We recently rejected the same argument in Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991). In that case, certain taxpayers claimed that the State had taxed their pension incomes in a discriminatory manner. The challenged law allowed a full exemption for certain retirees from state government positions while exempting only a small portion of the pensions of others. On appeal it was urged that the Chancellor erred in allowing refunds to members of the class who had not filed amended income-tax returns for 1985. It was argued by the State, as in this case, that class members had not complied with § 26-18-507.
The Chancellor’s order permitting recovery by the class was affirmed. The opinion stated, “Although this court has not ruled on this precise issue as applicable to tax refunds, there is ample authority for the appellees’ position and we adopt that reasoning. See Santa Barbara Optical Co. v. State Bd. of Equalization, 47 Cal. App. 3d 244, 120 Cal. Rptr. 609 (1975); Ware v. Idaho State Tax Commission, 98 Idaho 477, 567 P.2d 423 (1977); Clark v. Lee, 273 Ind. 572, 406 N.E.2d 646 (1980); Thorn v. Jefferson County, 375 So.2d 780 (Ala. 1979); and Fiorito v. Jones, 39 Ill.2d 531, 236 N.E.2d 698 (1968).” We now review the “reasoning” we adopted from those cases.
The opinion in Fiorito v. Jones, supra, concerned amendments to an Illinois tax statute which gave exemptions to certain service providers while taxing all others. Some of the class members were the service providers who were to pay the tax to the State, and some were persons who had been charged the tax by the providers. It was held that the differences between the class members were not sufficient to void the class because each group presented common legal and factual issues, and each would have an interest in the common fond to be created by a holding that the tax was improperly collected.
In Ware v. Idaho State Tax Commission, supra, a group of taxpayers had failed to claim refunds of sales taxes due to persons over 65. The tax authority had failed to make available means to request the refunds and had even misrepresented the law on the procedure to be used. Although those facts are quite different from the ones now before us, some of the reasoning of the Supreme Court of Idaho is useful.
The record before us shows that the Commission ... refused any refund claims such as those which were found valid by the trial court. It admits that it had no intention of allowing any such claims. In these circumstances, we find that the requirement of the filing of a claim for the refund was the requirement of a useless and futile act. “The law does not require useless acts from litigants as prerequisites to seeking relief from the courts.” [Citations omitted.]
In Clark v. Lee, supra, plaintiffs claimed an Indiana “occupations income tax” discriminated against non-resident taxpayers by giving a credit to residents against other taxes. A question on appeal of a judgment in favor of the plaintiffs was whether the class was proper in the absence of a showing that all of the class members had exhausted their administrative remedies.
In holding the class was proper, the following reasoning was expressed by the Supreme Court of Indiana:
In the situation with which we are confronted, the named plaintiff personally satisfied the jurisdictional requirements of the statute by exhausting their administrative remedies before bringing their action. In so doing they afforded the state government the opportunity of reckoning with their claim. The claim itself was constitutional in nature and sought to void the statute because it discriminated against a class to which plaintiff belonged, namely non-residents. It was by its nature a claim which would, if successfully prosecuted by a lone plaintiff, provide a basis for class-wide relief in the absence of certification. We, therefore, conclude that the certification of this action as a class action does not vitiate or evade the jurisdictional requirements of the statute and is not contrary to the case law cited.
The Alabama case, Thorn v. Jefferson County, supra, cited in Pledger v. Bosnick, supra, is not as helpful as the others. In that case, the Alabama Supreme Court merely held that there was no requirement that class members have sought a refund when the claim was that the property-tax statute in question was unconstitutional and thus void.
In Santa Barbara Optical Co. v. State Bd. of Equalization, supra, a group of dispensing optical corporations sued California for refund of improperly imposed sales taxes. The State demurred on several bases including a contention that not all of the corporations had made timely claims with the State, each stating its name and the amount of refund due. The demurrer was sustained. The California Court of Appeals reversed, holding the claims statute was satisfied if the representative members of the class gave “sufficient information to identify and make ascertainable the class itself.” The Court also declined the State’s argument that some unnamed members of the class could not be “claimants” under the applicable refund statute because their claims had never been disallowed in writing, so their claims were not timely. The underlying reason recited for the decision sounded familiar.
If a class suit were not permitted a multiplicity of actions will be necessary in order to effectuate recovery by the individual purchasers. Since in many instances, the small amount involved may discourage an individual action as economically impractical, the state would be unjustly enriched, if a class suit were not permitted.
In Woosley v. State of California, 3 Cal.4th 758, 13 Cal. Rptr.2d 30, 838 P.2d 758 (1992), the California Supreme Court overruled the Court of Appeals decision in the Santa Monica Optical Co. case on the basis that the California Constitution specifically provides: “After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.” The Court was also influenced by the fact that the California legislature had, subsequent to Woosley’s submission of his claim, enacted a law that required that any class action for refund of vehicle license fees be authorized by each member of the class who must sign the claim. The reasoning of the Court was that the State must know the claims against it and thus be able to plan its budget accordingly.
To be sure, there are other cases in other jurisdictions which use reasoning contrary to that we adopted from the cases we cited in Pledger v. Bosnick, supra. All of the cases we cited are found in Annot., “Propriety of Class Action in State Courts to Recover Taxes,” 10 ALR 4th 655 (1981). See also Annot., “Maintenance of Class Action Against Governmental Entity as Affected by Requirement of Notice of Claim,” 76 ALR 3d 1244 (1971).
Again, we have decided this issue based on the reasons given in the cases we cited in Pledger v. Bosnick, supra. We note in this case that filings for refunds by all the class members would apparently have been useless acts. We note also testimony presented by DFA that, once a decision had been reached by a court in a suit by a single taxpayer that the tax had been illegally collected, all taxpayers would be treated the same. We fail to see how presentation of requests for refund by way of a class action could be prejudicial to DFA or the budgeting process in view of DFA’s apparent willingness to give a refund to any taxpayer who seeks it after such a decision. It may be that more taxpayers who have paid the tax will become claimants due to the notices to be provided through the Court than would have sought refunds absent such a procedure, but discouraging payment of money owed is hardly a good reason to deny a class action.
We hold the Chancellor did not lack jurisdiction of the subject matter of the claim, as the class certification was proper.
c. The merits of the claim
Arkansas Code Ann. § 26-52-301 (Supp. 1995) provides in part:
There is levied an excise tax of three percent (3%) upon the gross proceeds or gross receipts derived from all sales to any person of the following:
* * *
(C)(i) Service of alteration, addition, cleaning, refinishing, replacement, and repair of motor vehicles, aircraft, farm machinery and implements, motors of all kinds, tires and batteries, boats, electrical appliances and devices, furniture, rugs, upholstery, household appliances, television and radio, jewelry, watches and clocks, engineering instruments, medical and surgical instruments, machinery of all kinds, bicycles, office machines and equipment, shoes, tin and sheet metal, mechanical tools, and shop equipment. [Emphasis added.]
DFA contends that the sales of extended warranties are taxable because it has ruled them taxable, and has taxed them for at least 17 years, and because the Court impliedly held that they are taxable in Ragland v. Miller Trane Service Agency, 274 Ark. 227, 623 S.W.2d 520 (1981).
In the Ragland case the taxpayer was engaged in the business of inspecting, servicing, and repairing commercial heating and cooling devices. The taxpayer sold two types of contracts. The first was an “inspection only” contract which all parties agreed was exempt from the gross-receipts tax. The second was a “Full Coverage Commercial Service Contract” whereby the service agency agreed with a customer to inspect (a minimum of 3 times a year), maintain, and repair commercial heating and cooling units. The contract provided for an annual or monthly prepayment. The full maintenance agreement was designed to assure the maximum service for the efficient and economical operation of the equipment. Contract jobs under the service agreement took priority over other jobs and were guaranteed prompt action upon request.
The State, through the Revenue Department Hearing Board, determined that the service agency owed a sales-tax deficiency of $8,253.71, which included interest and a 10% penalty, for failure to remit the 3% gross-receipts tax on the sale of the commercial contracts from September 1, 1975, through August 31, 1978. The assessment was paid under protest and then made the subject of a chancery court claim. The Chancellor found that 75% of the taxes assessed were improper, including the interest and penalty. The State was ordered to repay those funds.
On appeal, it was stipulated that the issue presented was whether the total consideration paid pursuant to the contract was subject to the 3% sales tax, or only that portion which relates to specific repairs. The State contended the Chancellor erred in finding the service agency’s full-coverage commercial contract could be broken down into component parts for the purposes of collecting the gross-receipts tax.
The Court noted that the sales-tax statute in effect provided for a 3% tax on gross proceeds or receipts derived from the service of “alteration, addition, cleaning, refurbishing, replacement and repair of. . . machinery of all kinds ...” The Court also noted that the term “gross proceeds” or “gross receipts” was defined as “the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for...”
Based on the statute, the Court, in concluding that the entire value of the contract was subject to the sales tax, stated:
Here, the total consideration paid by appellee’s customers is for the package of services, i.e., inspection, maintenance and repairs, which it agreed to perform during the period covered by the contract. Maintenance and repairs of the machinery are taxable services. Inspection of the equipment is a prerequisite to the routine maintenance and repair and is an integral part of the contract. This inspection involves labor performed pursuant to the sale of taxable services; therefore, the cost of such an inspection cannot be deducted from the total amount of consideration paid for the full service contract. Appellee’s insurance coverage for reimbursement to it for repairs it made, plus 3% sales tax, was for its benefit. In summary, appellant’s claim is properly based upon the total consideration received by appellee for the sale of its package contract.
DFA argues that, because the contract receipts for future services were held to be taxable, the implication is that receipts for services to be performed upon contingency are taxable. We see a considerable difference between a prepayment for services to be rendered and a payment for something like insurance against the need for services which may or may not arise. DFA’s interpretation is obviously strained.
In response to the dissenting opinion, we must also note that which DFA does not argue. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1983), is cited in DFA’s brief solely in support of this statement: “This court hears equity cases de novo on the record and enters such judgment as the chancellor should have entered on the undisputed facts.” DFA makes no argument whatever to the effect that, because the tax was “voluntarily” paid by the class members, they may not succeed in their quest for refunds.
We decline to address the issue in any depth, but point out summarily that there is good reason for not making such an argument. The general statement we adopted in Thompson v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W.2d 375 (1953), from Cooley, The Law of Taxation, Ch. 20, § 1282, and cited in City of Little Rock v. Cash, supra, was based on Professor Cooley’s recitation that “every man must know the law.” It included the following: “It is well settled that if the payment of a tax is a voluntary payment, it cannot be recovered back, except where a recovery is authorized by the provisions of a governing statute regardless of whether the payment is voluntary or compulsory.” Section 26-18-507(a) authorizes such an action when a tax is paid under “mistake of law.” See Taber v. Pledger, 302 Ark. 484, 791 S.W.2d 363 (1990), cert. denied, 498 U.S. 967 (1990). The statute makes no reference to whether the tax was paid voluntarily or as the result of compulsion.
The reason we decline further to address this issue raised in the dissenting opinion is that it was not raised in the Trial Court or here. Our reason was stated by the majority of the members of this Court in Smart v. State, 297 Ark. 324, 761 S.W.2d 915 (1988), in response to a dissenting opinion raising an issue not argued by the appellant at trial or on appeal:
The dissenting opinion asserts that the majority “evades the question...” There are clear and cogent reasons. The argument was not raised in the trial court, nor was it argued on appeal. Either omission, according to literally hundreds of our cases, many of which are authored by the dissenting justice, obviates our dealing with issues that are not presented. If we undertook to answer arguments that were raised neither here nor in the trial court, the process of appellate review should doubdess collapse under its own weight. Few principles of appeal and error are more widely followed or firmly entrenched than the rule that we do not address arguments not raised by the litigants.
See also Smith v. State, 310 Ark. 31, 832 S.W.2d 497 (1992); Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).
DFA does argue its interpretation of the statute in question here is entided to deference, and we agree. See Arkansas Public Service Comm’n v. Allied Telephone Company, 274 Ark. 478, 625 S.W.2d 515 (1981). The basic rule of statutory construction, however, is to give effect to the intent of the General Assembly, and when a statute is clear, it is given its plain meaning. Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995).
The statute plainly levies a “tax . . . upon the gross proceeds or gross receipts derived from all sales to any person of.. . service of. . . and repair of motor vehicles.” An extended warranty is not “service.” As the promised repairs are completely contingent upon events which may not transpire, the contracts cannot be said to be for service or repairs to automobiles.
The judgment is affirmed on appeal.
2. Cross-appeal
a. Injunction
The Chancellor was asked to enjoin DFA from collecting the tax. The class contends:
Plaintiff was given judgment for $10,050,759.17 plus additional taxes and interest accruing at the rate of $6,352.00 per day. Since defendant was not enjoined from collecting the illegal tax on extended warranties, taxpayers have, and will, continue to pay State sales tax on extended warranties. It is possible that the total amount of refunds will exceed the damages awarded.
The only authority cited on this point is Harkey v. Matthews, 243 Ark. 775, 422 S.W.2d 410 (1967), for the proposition that public officials may be enjoined from ultra vires acts.
It is not at all clear that the Chancellor awarded the amount stated as a “judgment” in favor of the class. As we read the order, he found as a matter of fact that the figure stated was the amount which might have to be refunded.
The Chancellor was presented with evidence that DFA maintained a miscellaneous tax account through which it would pay the refund if ordered. According to testimony presented by DFA, $50 million per year was appropriated for the account for the years 1995, 1996, and 1997, and the State could have at least $30 million available for each fiscal year. The refunds, if required, would come out of that account. Testimony was also presented that an injunction, if granted, could disrupt public education and the services performed by the Department of Human Services.
The Chancellor denied the request for an injunction, finding that DFA had “established that sufficient funds are appropriated from which refunds may be made if ultimately ordered by the Court.” An order granting or denying an injunction is within a chancellor’s discretion. Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989). The Chancellor did not abuse his discretion.
b. Accounting
Again without citation to authority, it is contended that the Chancellor should have ordered DFA to identify each member of the group and refund the amount of the tax paid to that member.
Evidence was presented that such a requirement would be extremely burdensome and expensive. The Chancellor ruled that “the better method of refund is to require each taxpayer to present proof of their payment of taxes on an extended warranty during the time period in question in this lawsuit. A master is to be appointed to review and approve each claim filed for refund.”
We consider the solution reached by the Chancellor to be consistent with our decision in International Union of Electrical, Radio, and Machine Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988), in which we emphasized the need for discretion in the management of a class action and the desirability of choosing a management solution fair to all parties.
Affirmed on cross-appeal.
Dudley, J., not participating. Jesson, C.J., and Glaze, J., dissent.END APPENDIX TO DISSENTING OPINION