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STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC;, ss. DOCKET NO. AP-99-50°
JieA-KEW- S]Jat/acoo
GUY HART ENTERPRISES, INC.,
Petitioner
Vv. DECISION AND ORDER
STATE TAX ASSESSOR,
Respondent
This matter is before the court on the State Tax Assessor’s Motion to Dismiss
and on the petitioner's Motion for Summary Judgment, Motion for Procedural
Order, and Motion to Strike. Because the Motion to Dismiss may serve to dispose of
this case in its entirety, judicial economy dictates that it be addressed first.
In its motion to dismiss, the respondent State Tax Assessor (STA) claims that
the petitioner’s notice of appeal was not timely filed in this court so that there is no
jurisdiction to consider the matter further. In order to address the merits of this
contention, it is necessary to briefly recount the procedural history of this case.
On September 25, 1997, Maine Revenue Services (MRS) issued a “Corrected
Assessment” of sales and use taxes, including interest and penalties, payable by Tri-
State Rubbish, the petitioner’s predecessor business entity, for front load containers
leased to Tri-State by Plummer Leasing. On October 8, 1997, Tri-State made a timely
petition for reconsideration of this corrected assessment. Petitioner’s counsel, Ralph
Dyer, Esq., represents to this court in an affidavit that he asked MRS to
communicate with him directly about the reconsideration petition rather than to
Bo
his client. The correspondence provided with Mr. Dyer’s affidavit suggest that MRS
complied with this request.
On May 21, 1999, MRS, through the director of its appellate division, upheld
the corrected assessment and thereby denied the October 8, 1997 petition. This
document, in the form of a letter, was addressed to Tri-State Rubbish, Inc., attention
Guy Hart, Jr., president. It was sent by certified,mail to Tri-State and received there
by Linda Hart on May 22, 1999. MRS did not send a copy of this letter to Mr. Dyer.
Instead, Mr. Dyer learned of the decision and got a copy of it from his client on
either May 24 or 25.
In the letter of May 21, 1999, the following language appears in its final
paragraph:
This determination constitutes final action on behalf of this agency, for
which no further administrative review is available. If you wish
judicial review of this documentation, you must file a petition for
review in Superior Court within thirty (30) days of receipt of this notice
in accordance with 36 M.R.S.A. § 151 and 5 M.R.S.A. § 11002. The
address of the Kennebec County Superior Court is 95 State Street,
Augusta, Maine 04330, Attn: Nancy Desjardin, Clerk. As of October 15,
1997 the correct filing fee was $120.
On May 26, 1999, Mr. Dyer sent a letter to the author of the May 21 letter from
MRS entitled, “Re: Second Request for Reconsideration ...” It concludes with the
following sentence, “Tri-State will be taking an appeal and will move forward in
order to avoid any limitations issues while the Appellate Division considers this
request.” On June 8, 1999, MRS responded to this letter, advising Mr. Dyer that the
May 21 letter represented final agency action, “and thus has started the time period
within which the taxpayer may petition for review in Superior Court. Once a
reconsideration decision is issued, the Appellate Division does not again reconsider
a case.” It went on to say, ”... such a request for further review does not stop or
extend the time period for filing a petition for review in Superior Court.”
On June 23, 1999, the pending Petition for Review of Final Agency Action was
filed in this court. Because June 23 was the 32nd day after the petitioner received the
letter denying its request for reconsideration of the corrected assessment, the STA
claims that the petition is untimely and must be dismissed. In advancing this claim,
the STA points to 5 M.R.S.A. § 11002(3) (1989) which mandates that a petition for
review of final agency action be filed in the Superior Court within 30 days after
receipt of notice of the agency action.
The petitioner advances several arguments to counter this claim and save
this appeal. First among these is the contention that, because MRS had sent
previous correspondence to petitioner’s counsel at his request concerning this
dispute, the notice of the denial of the reconsideration request should have been
sent to him instead of his client, and that, because he did not receive a copy or learn
of this decision until May 24, at the earliest, the 30-day appeal period should be
counted from that date.
Title 36 M.R.S.A. § 151 (Supp. 1998) amended by P.L. 1999, ch. 414, § 7 (effective
June 5, 1999), | however, mandates that a decision on reconsideration is to be mailed
to the taxpayer by certified or registered mail.” (emphasis supplied) While MRS
1 All citations to 36 M.R.S.A. § 151 in this order are to this prior version of the statute, rather
than the current version located at 36 M.R.S.A. § 151 (Supp. 1999).
may have honored the request to send correspondence to petitioner’s attorney
rather than his client, MRS was required by the dictates of the cited statute to send its
decision on reconsideration to the taxpayer itself by the prescribed means. Had it
failed to do so, the taxpayer could well have claimed that the appeal did not begin to
run until MRS complied with the prescribed notice provisions of the cited statute.
The fact that MRS did not send a copy of its decigion to petitioner’s attorney is of no
consequence. The law did not require it to do so, and petitioner’s counsel received
the decision within a few days of his client. In doing so, the attorney must have
become aware of the date of the decision and the obvious circumstance that his
client had received it before he did.? That being so, a reference to the statute would
have advised that MRS was required to send the reconsideration decision to the
taxpayer, that the decision was final agency action, and that the appeal period of 30
days had begun to run upon the receipt of that letter by the taxpayer/party.
36 M.R.S.A. § 151 (Supp. 1998), 5 M.R.S.A. § 11002(3) (1989). Moreover, nothing in
the statutes would authorize MRS or this court to recognize a different method of
providing notice to a taxpayer of a reconsideration decision or a different method of
calculating the running of the appeal period from final agency action. MRS’s
agreement to correspond with petitioner’s counsel was obviously nothing more
than an accommodation without legal significance which cannot serve as a
2 The May 21, 1999 letter warned the petitioner, and its counsel upon his receipt of a copy, that
the appeal period began to run within 30 days of the receipt of the notice. Similar advice was
contained in the letter from the MRS to Mr. Dyer on June 8, 1999.
4
Sp
sarictioned departure from legislative mandates as to appellate procedure following
administrative action.®
The petitioner also argues that its counsel’s letter of May 26, 1999, asking for
further reconsideration tolled the time period within which an appeal must be
taken.
Contrary to this argument, however, is the plain text of 36 M.R.S.A. § 151
(Supp. 1998) which declares that the STA’s “decision on reconsideration constitutes
final agency action...” That being so, a further reconsideration of the STA’s action
would not constitute final agency action, restarting the appeal period, because the
final agency action had already occurred. Indeed, as noted, petitioner’s counsel was
advised of this circumstance in the MRS letter of June 8, 1999, and acknowledged in
his letter to MRS on May 26, 1999, that the petitioner would be moving forward
with its appeal “to avoid any limitations issues” while its second request for
reconsideration was being evaluated. Thus, it is plain that the law requires that the
30-day time period for taking appeals runs from the date of the receipt of the notice
of the final agency action, as opposed to some later date on which a further
reconsideration might be made,’ and that the petitioner, through his counsel, knew
that the appeal period was running as they sought further agency action. All this
3 According to the record, while MRS did send all correspondence to Mr. Dyer, official notices
appear to have been sent in each instance to the taxpayer.
4 If further motions, pleadings, or letters asking for agency reconsideration of its decision could
act to toll the time period for taking appellate action, then all a petitioner would need to do would be
to ask for one reconsideration after another in order to extend the time for taking an appeal or to avoid
the consequences of the agency action complained of.
5
being so, this argument also will not assist the petitioner in its quest to defeat this
motion.
Last, the petitioner argues that the respondent should be estopped from
challenging the timeliness of this appeal because it allowed the appellate process to
proceed without objection for nearly three months before filing the pending
motion. a
The Law Court, however, has held that the time limits for appeals under the
Administrative Procedure Act (APA), 5 M.R.S.A. § 8001-11008 (1989 & Supp. 1999)
are jurisdictional and, as such, noticeable sua sponte. Brown v. State Dep't of
Manpower Affairs, 426 A.2d 880, 888 (Me. 1981). “The Superior Court’s duty to
dismiss an action when it learns it is without jurisdiction is not affected by the
manner in which the jurisdictional facts in the record are brought to its attention.”
Id.
In this regard, the petitioner objects that the return receipt evidencing the
delivery of the decision on reconsideration on May 22 was included in the record as
proof that the appeal period began on that date. Nevertheless, in the affidavit of
petitioner’s counsel, it is acknowledged that the decision was dated May 21, 1999,
sent by certified mail to the taxpayer, and “apparently” received by the taxpayer on
May 22, 1999, as the respondent claims. The petitioner’s protest of the addition of a
copy of the return receipt to an affidavit accompanying the pending motion,
therefore, lacks the element of a factual dispute that might add some persuasive
value to this point.
%)
«
In the end, it is apparent that this appeal was simply not filed on time and the
respondent bears no fault for this temporal error. That being so, the result of this
contested motion is clear because, “[i]f a party does not file an appeal within the
statutory period, the Superior Court has no legal power to entertain the appeal.”
City of Lewiston v. Maine State Employees Ass'n, 638 A.2d 739, 741 (Me. 1994).
Because the petitioner did not file its appeal within the applicable time periods as
prescribed by section 11002(3) of the APA, the court is without jurisdiction to
‘consider the appeal, and the motion to dismiss must be granted.
Because this action terminates this case with prejudice, the remaining
pending motions are rendered moot and must also be denied.
Accordingly, the entry will be:
Motion to Dismiss is GRANTED; Motion for Summary
Judgment is DENIED; Motion for Procedural Order is DENIED; Motion
to Strike is DENIED.
So ordered.
John R. Atwood
ustice, Superior Court
»,Date Filed
Action
6/23/99 Kennebec Docket No. __AP~99-50
County
Petition for Review 80C
Pek gig «
A LAS,
Ra Le
JUN 9 9000
Guy Hart Enterprises Inc. , vs. Maine Revenue Services
Date of
Entry
Plaintiff’s Attorney Defendant’s Attorney
Ralph Dyer, Esq. a Clifford Olson, AAG.
477 Congress St. Suite 1010 State House Sta 6
Portland Maine 04101 Augusta Maine 04333
6/23/99
7/7/99
7/16/99
9/22/99
9/23/99
10/1/99
Petition for Review of Final Agency Action, filed. s/Dyer,. Esq.
Letter from Clifford Olson, AAG. entering his appearance for State.
Letter from attorney Thomas Knowlton, AAG. entering his appearance.
Original summons with return of service made upon Maine Revenue Service on
6/20/99, filed.
Motion to Dismiss and incorporated memorandum of law, filed. s/Olson, AAG.
Affidavit of I. Lucille Brunelle, filed. (exhibits #1 attached)
State Tax Assessors Request for Hearing on his motion to dismiss, filed.
Proposed Order, filed.
Letter from attorney Knowlton withdrawing his appearance for State Tax
Assessor, filed.
Proposed Order, filed.
Proposed Procedural Order, filed.
Motion to Amend Petition, filed. s/Dyer, Esq.
Petitioner's Record on Review, filed. s/Dyer, Esq.
Petitioner's Brief on Review, filed. s/Dyer, Esq.
Petitioner's Motion for Summary Judgment, filed. s/Dyer, Esq.
Affidavit of Ralph Dyer, Esq., filed.
Petitioner's Statement of Undisputed Material Fact Pursuant to Rule 7(d)
(1), filed.
Petitioner's Motion for Procedural Order, filed. s/Dyer, Esq.
Certificate of Service, filed. s/Dyer, Esq.
Respondent's Memorandum in Opposition to Petitioner's Motion for Procedural
Order, filed. s/Dyer, Esq.
Proposed Procedural Order, filed.
Petitioner's Objection to Motion to Dismiss with Incorporated Memorandum
of Law, filed. s/Dyer, Esq.