The Arkansas Department of Finance & Administration (DF&A) appeals a decision of the Pulaski County Circuit Court entered after this case was remanded to the circuit court in Weiss v. McFadden, 356 Ark. 123, 148 S.W.3d 248 (2004) (McFadden II). DF&A argues that the circuit court erred in ordering a “front-end loaded” refund method for class members who retired after the lawsuit was filed in 1999, and that the circuit court erred in ordering a refund method for taxes paid prior to the lawsuit that was different than the refund method to be used for taxes paid after the lawsuit was filed.
The appeal in McFadden IIinvolved assertions by DF&A that the refund method fashioned by the circuit court was in error. Under the doctrine of law of the case, this same issue may not be raised again on the present appeal. Further, the decision of the circuit court to use a different refund method for taxes paid prior to filing the lawsuit in 1999 is not clearly erroneous. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (7).
Facts
This case concerns an attempt by DF&A to tax return of capital as if it were income. In Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003) (McFadden 1), this court held that the return to a retiree of after-tax contributions made to a retirement plan is not income subject to income tax because it constitutes return of capital rather than income. We further held that an income tax levied against after-tax contributions constituted an ad valorem tax in violation of Amendment 47 of the Arkansas Constitution. Therefore, the tax constituted an illegal exaction under article 16, section 13 of the Arkansas Constitution.
In McFadden II, this court held that the circuit court erred in failing to apply the voluntary payment rule in formulating its refund plan to benefits paid to retirees prior to the filing of the complaint in this case in 1999. This court further held that the circuit court did not err in refusing to apply 26 U.S.C. § 72 in fashioning the remedy in this case. The case was remanded for application of the voluntary payment rule.
Standard of Review
This case was tried with the circuit court sitting as the trier of fact. The standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Farm Credit Midsouth, PCA v. Reece Contractors, Inc., 359 Ark. 267, 196 S.W.3d 488 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Farm Credit, supra. Disputed facts and determinations of credibility are within the province of the fact-finder. Id. At issue on this case is whether the circuit court erred in fashioning a remedy. In Lotz v. Cromer, 317 Ark. 250, 253, 878 S.W.2d 367 (1994), this court correctly stated that “ [i] n fashioning a remedy, a Chancellor has broad power, limited only to the extent that the remedy must be reasonable and justified by the proof.”
Law of the Case
In Cadillac Cowboy, Inc. v. Jackson, 347 Ark. 963, 69 SW.3d 383 (2002), this court discussed law of the case and stated:
The venerable doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. The doctrine serves to effectuate efficiency and finality in the judicial process. Frazier v. Fortenberry, 5 Ark. 200 (1843); see also, 5 Am. Jur. 2d Appellate Review § 605 (1995). We have said the following with regard to the law-of-the-case doctrine:
The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). On the second appeal, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not,presented. Griffin v. First Nat’l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).
Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W.3d 227, 237 (2001). The rationale for the adherence to a strict application of the rule — the avoidance of the disorder and unpredictability that would follow a departure from the doctrine —■ has not changed.
Cadillac Cowboy, 347 Ark. at 970. The doctrine is conclusive only where the facts on the second appeal are substantially the same as those involved in the prior appeal. Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002). It does not apply if there is a material change in the facts. Id. In the case before us, there is no change of fact with respect to the retirees and their pensions. The only change on the present appeal is the application of the voluntary payment rule.
Front-End Loaded Method
The issue of whether the circuit court erred in applying a front-end loaded method to taxes paid after filing of the lawsuit in 1999 was already raised by DF&A in McFadden II. In McFadden II, this court stated that the appeal concerned “the refund mechanism fashioned by the trial court upon remand of Weiss I (McFadden I) as well as the issue of the constitutionality of Act 380 of 1991.” McFadden II, 356 Ark. at 126. This court also stated:
Both the appellee taxpayers and the DF&A proposed refund mechanisms as a remedy for taxes that had been illegally exacted from the appellees. The trial court opted for the appellees’ methodology, which allows retirees to recover the frill benefit of their after-tax contributions. The DF&A appeals this ruling, asserting that the trial court erred in (1) refusing to apply the voluntary-payment rule to any illegally-exacted taxes that were paid prior to the filing of the lawsuit in 1999, and (2) refusing to apply 26 U.S.C. § 72, which prorates recovery of after-tax contributions on federal tax returns.
Id. Therefore, according to this court in McFadden II, DF&A was appealing the circuit court’s decision on the refund method and alleged that the circuit court erred in adopting the “appellee’s methodology.” The “appellee’s methodology,” as noted in the opinion in McFadden II, was the “front-end loaded” method.
After considering the arguments of the parties, this court held in McFadden II that with respect to the refund method, “the trial court did not err in refusing to apply 26 U.S.C. § 72 to employment-related retirement plans.” Further we held, “Because the trial court erred in refusing to apply the voluntary-payment rule to illegally-exacted taxes paid in the years prior to 1999, we reverse and remand on this point with instructions to fashion a remedy consistent with this opinion.” McFadden II, 356 Ark. at 131. As the circuit court correctly stated in its May 13, 2004, Order Upon Remand: “The only issue remanded to this court was the application of the voluntary payment rule to illegally exacted taxes paid in years prior to 1999.”
Voluntary Payment Rule
There is no error in the circuit court’s application of the voluntary payment rule in this case where the refunds for taxes paid prior to filing the lawsuit in 1999 are handled differently than refunds for taxes paid after the lawsuit was filed. No authority is cited which requires the circuit court to utilize the same methods for both periods in this case. The circuit court was clearly attempting to exercise equity to assure that retired pensioners receive the refund due within a time frame that provides some reasonable form of actual relief. Some retirees may have passed away since this action was begun almost five years ago, and such retirees have been effectively denied relief.
There is no showing that the remedy ordered by the circuit court is unreasonable or not justified by the proof. Upon remand, the circuit court did precisely what it was ordered to do by this court in McFadden II. The findings of the circuit court are not clearly erroneous. We find no error and affirm.
Dickey, C.J., Brown and Thornton, JJ., dissent.