specially concurring:
I concur in the opinion and judgment of the court upholding the dismissal of United's claims, but I write separately to explain why I agree with Denver's contention and disagree with United's contention that it exhausted its administrative remedies. Denver contends that D.R.M.C. sections 58-49(c) and 53-117(c) required United to petition for administrative review of its tax assessment within twenty days of service thereof, United contends that the sixty-day provisions of D.RM.C. sections 53-48(b) and 58-111(b) concerning tax refunds applied. If United's contention is correct, it exhausted its administrative remedies. - The District Court agreed with United.
I agree with the majority that failure to exhaust administrative remedies can bar judicial review when the party seeking to set the agency's decision aside has failed "to follow certain review procedures consistent with the agency's governing statutes or ordinances." Maj. op. at 1215. However, I am concerned about the opinion's focus on the Manager of Revenue's notice to United that it had twenty days upon service of the assessment to pay or petition for administrative review. See maj. op. at 1209. If United is correct that the Code allowed it sixty days to invoke administrative review, then the Manager's notice did not correctly reflect the ordinance. -
In the event of an inconsistency between the Code's provisions and the Manager's notice, the Code provisions would control. Courts look to statutes and implementing regulations to determine whether adequate remedies exist; - administrative remedies that are inadequate need not be exhausted. See Coit Indep. Joint Venture v. Federal Sav. & Loan, 489 U.S. 561, 587-88, 109 S.Ct. 1361, 103 LEd.2d 602 (1989). Our agency judicial review cases, including those pertaining to tax assessment appeals, ordinarily set forth the applicable statutory or regulatory provisions that governed the underlying administrative process and resolve conflicting positions of the parties regarding their construction or applicability. Seq, eg., Winslow Constr. Co. v. Denver, 960 P.2d 685, 688-89 (Colo.1998); Gilpin County Bd. of Equalization v. Russell, 941 P201 257, 261-64 (Colo.1997).
At one point, the majority characterizes the exhaustion doctrine as a "jurisdictional requirement." Maj. op. at 1212. While I agree that certain procedural requirements are jurisdictional, such as those which specify *1217the time for filing a judicial review action, see, e.g., Danielson v. Zoning Bd. of Adjustment of the City of Commerce City, 807 P.2d 541, 543 (Colo.1990), the exhaustion requirement is not necessarily jurisdictional in nature. See Cutler v. Hayes, 818 F.2d 879, 890 (D.C.Cir.1987); see also Patel v. Thomas, 793 P.2d 632, 636 (Colo.App.1990). Rather, as the majority discusses, see maj. op. at 1212-1213, it serves a number of purposes and has a number of exceptions. Thus, it should be applied with a view towards those purposes, which include: (1) discouraging the flouting of the administrative process; (2) allowing the agency the first opportunity to apply its expertise, exercise its discretion, and correct its errors; (8) aiding judicial review by promoting the development of facts during the administrative proceeding; and (4) promoting judicial economy by reducing duplication and perhaps obviating judicial involvement. See Cutler, 818 F.2d at 890-91; Colorado v. Golden's Concrete Co., 962 P.2d 919, 923 (Colo.1998).
Accordingly, I1 turn to Denver's and United's competing contentions regarding the Code and the efficacy of the Manager's notice of twenty days for United to petition for administrative review.
United argues that this case should be analyzed under D.R.M.C. sections 538-45 and 53-113, entitled "Examination of returns; refunds, credits and deficiencies." These see-tions provide in relevant part:
As soon as practicable after the return required by this article is filed, the manager shall examine it for correctness. If it then appears that the correct amount of tax to be remitted is greater or less than that shown in the return, the tax shall be recomputed.
D.RM.C. §§ 58-45(a), 58-118(a) If the Manager's audit shows taxpayer payments less than what it determines to be due, subsection (c) then provides that the difference, plus interest, "shall be paid over by the vendor within twenty (20) days after written notice and demand for payment from the manager." D.RM.C. §§ 53-45(c), 53-113(c). The court of appeals held that (1) the Code does not specify that the additional taxes become an assessment; (2) the Code does not specify a procedure for protesting the additional taxes pursuant to D.R.M.C. sections 58-49 and 53-117; and (8) the provisions contained in D.R.M.C. sections 58-45(d) and 58-113(d) apply even though the taxes were paid beyond the twenty day period. The court of appeals concluded that an application for refund can be made in accordance with the procedures found in D.R.M.C. see-tions 58-43 and 58-111. The Code's refund provisions state:
Applications for refund must be made within sixty (60) days after the purchase of the goods or the performance of the services on which the exemption is claimed.
D.RM.C. §§ 53-48(b), 58-111(b). United defends the court of appeals decision, arguing that it exhausted its administrative remedies because it filed a tax return, paid the taxes due, and applied for a refund within sixty days of when it received notice of the alleged deficiency.
I agree with Denver's contention, however, that D.R.M.C. sections 53-49 and 58-117 are applicable to this case, and disagree with the court of appeals holding that the examination of the returns sections, see D.R.M.C. §§ 53-45 and 58-118, and the refund sections, see D.R.M.C. §§ 58-48 and 58-111, are applicable. In construing a legislative action, we must give effect to the words chosen, and we must reconcile seemingly conflicting provisions whenever possible. See Upper Black Squirrel Creek Ground Water Management Dist. v. Goss, 993 P.2d 1177, 1186 (Colo.2000).
D.R.M.C. sections 58-49(a) and 58-117(a) clearly state that when "any retailer neglects or refuses to make a return in payment of the taxes as required by this article, the manager shall make an estimate ... of the amount of the taxes due for the period or periods for which the taxpayer is delinquent." United argues that this provision does not apply to it because it did file a tax return. The plain language of these sections, however, requires United to make a "return in payment of the taxes."
The Manager conducted an investigation of United's records to determine how much tax United owed pursuant to D.R.M.C. sections 53-49 and 58-117. The Manager determined that United had failed to make the required payment. - Thus, in accordance with D.R.M.C. sections 58-49(b) and 58-117(b), the Manager notified United in writing of the assessment and demanded payment of the *1218unpaid taxes, plus penalty and interest. The delinquency notice to United specifically provided a manner to protest the Manager's assessment in accordance with D.R.M.C. see-tions 538-49 and 53-117. United failed to do so.
The policies underlying the exhaustion doctrine should apply to this case because the ordinance provided an administrative remedy to United. United was notified that it must pay the assessment within twenty days or petition for administrative review. United failed to avail itself of this procedure. The subject of taxation as provided by the Code is a home rule matter within the special expertise of the Manager of Revenue. See Winslow, 960 P.2d at 694-95.
Accordingly, no exception to the exhaustion doctrine being applicable in this case, I concur in the opinion and judgment of the court.