dissenting. It is passing strange .that this court is invoking the doctrine of law of the case to prevent our consideration of the front-end loaded method for tax years 1999 - 2002. The reason this is so strange is that in Weiss v. McFadden, 356 Ark. 123, 148 S.W.3d 248 (2004) (McFadden II), we specifically laid out an alternative to the front-end loaded method for tax years 1999-2002:
However, there are other equitable ways by which a refund may be effected while still acknowledging the voluntary-payment rule. One such way would be for the appellees to file amended returns for 1999 through 2002, attaching copies of their federal income tax returns. They could adjust their income on the Arkansas returns by thé amount of after-tax contributions claimed on their federal returns for those years. In this way, all taxes paid on after-tax contributions received prior to 1999 would be considered voluntarily paid; while, at the same time, the appellees would receive the benefit of a refund of those taxes illegally exacted in 1999-2002 because they were not allowed to recover their after-tax contributions during those years.
McFadden II, 356 Ark. at 131,148 S.W.3d at 253-54. We reversed and remanded for the trial court to “fashion a remedy consistent with our opinion.” That language clearly relates to a remedy for the period in question — 1999 through 2002.
Are we saying now we did not mean what we said? Apparently so. We now issue an opinion that says we cannot espouse an alternative procedure to the front-end loaded method to effect the refund for 1999 through 2002 and we are locked in to the front-end loaded method, even though this court laid out a road map for precisely such an alternative procedure in McFadden II. It makes no sense.
Turning to the merits of this appeal, DFA correctly maintains that the trial court found an illegal exaction for tax years 1999 through 2002 and calculated the refund based on contributions made to retirement plans during this period. In other words, total contributions for the four-year period could be deducted against total retirement benefits for 1999. To the extent those contributions exceed 1999 retirement income, the overage would be passed on as a deduction to retirement income for 2000 and so forth. The front-end loaded method, thus, provides a refund remedy even when no tax has been levied on the retirement benefits and no tax has been paid. Again, this is passing strange. Should we be calculating a refund for an illegal tax when it is not known when the benefits resulting from the contributions will be paid, when the tax will be applied, and whether the taxpayer will even receive the benefits?
This brings me back to what this court set out as a proper way to effect the refund in McFadden II. We said file an amended return for each year, 1999 through 2002, and claim a deduction against income for after-tax contributions paid out as benefits in each year. Then, claim your refund for the excess tax paid. This procedure provides a refund for taxes that were actually illegally exacted as opposed to an estimated refund based purely on contributions made to a plan. The trial court disregarded our clear direction.
The majority argues that the trial court was trying to do equity and allow deductions of as much of the total contributions against retirement income as could be made in the first year and then in successive years. The front-end loaded method certainly favors the taxpayers in permitting deductions for contributions to be taken in one fell swoop, but it confounds our illegal exaction law by permitting deductions against income for retirement benefits not yet received. Most importantly, the front-end loaded method does not tie the refund to after-tax benefits paid out in a given year.
In sum, I question the fairness and reasonableness of hinging the majority opinion on law of the case in light of our specific language in McFadden II and then calculating a tax refund based on after-tax retirement benefits not yet received and which may not be received at all. For these reasons, I respectfully dissent.
Dickey, C.Í., and Thornton, J., join in this dissent.