failure to appeal from Tax Commission order allows the order to become final and impervious to collateral attack in a subsequent injunction proceeding.
How later courts described this case
- failure to appeal from Tax Commission order allows the order to become final and impervious to collateral attack in a subsequent injunction proceeding.
Written by the judges who cited it.
The opinion
ALMA WILSON, Justice,
concurring specially:
I write specially to emphasize the need for the Oklahoma Tax Commission to adopt agency rules for approving cigarette tax credits or refunds based upon claimed exemptions. It is now established that sales of cigarettes by a retailer clothed with the exemption of a federally registered Indian tribe to a member of a federally registered Indian tribe are exempt from the cigarette tax burden. For ease in administration, our cigarette tax scheme requires the wholesalers of cigarettes to pay the cigarette tax to the Commission and then collect the tax from their buyers. This statutory scheme should be administered to preserve the established exemptions. That is, the Commission should provide the cigarette wholesalers with a credit or refund procedure when the tax has been paid on cigarettes sold by a retail “Indian smoke shop” to the ultimate consumer who is a member of a federally registered Indian tribe.
The assessment of cigarette tax, penalties and interest, in this case, is not subject to adjustment to allow credit or refund based on the Indian exemption because of its technical finality. 68 O.S.1981, § 221. However, field audit and assessment should not be the first avenue available for the cigarette wholesalers to claim a credit or refund of tax paid on cigarettes exempted from the tax. The Commission should promulgate rules which adequately detail the method by which a cigarette wholesaler may claim a credit or refund of taxes paid and the evidence necessary to prove the claim.