plaintiffs sought a tax refund for amounts paid in Utah state income tax on retirement income from federal sources for the tax years of 1985, 1986, 1987, and 1988
How later courts described this case
- plaintiffs sought a tax refund for amounts paid in Utah state income tax on retirement income from federal sources for the tax years of 1985, 1986, 1987, and 1988
Written by the judges who cited it.
The opinion
On Petition for Rehearing
HOWE, Justice:
The Utah State Tax Commission filed a petition for rehearing in this case, Brumley v. State Tax Comm’n, 868 P.2d 796 (Utah 1993), and the Honorable Michael O. Leavitt, Governor of Utah, has filed an amicus curiae brief in support of that petition. The petition raises three questions which we address.
First, petitioner assails our failure in our opinion to address petitioner’s contention that state law satisfied all federal due process requirements by providing federal retir *802 ees, prior to their payment of any taxes for the years in question, the opportunity to challenge the legality of the exemption for state retirees. We did not address that contention because even if it is true, it is not dispositive. The legislature in Utah Code Ann. § 59-10-529 granted direct relief to taxpayers who overpay by providing for refunds of overpayments. It is true that Harper v. Virginia Department of Taxation, 509 U.S. —, —, 113 S.Ct. 2510, 2520 , 125 L.Ed.2d 74, 89 (1993), gave the states latitude to craft a remedy for the illegal exaction of taxes. In Utah, however, the nature of the remedy was not an open question. The legislature had long since provided refunds as the remedy. Plaintiffs cannot be denied that remedy even though it may not be required by federal due process. Cases cited by petitioner and amicus where refunds were not required as a matter of state law are therefore distinguishable. Harper v. Virginia Dep’t of Taxation, 241 Va. 232 , 401 S.E.2d 868, 873 (1991); Reich v. Collins, 262 Ga. 625 , 422 S.E.2d 846, 849 (1992), on remand from U.S. Sup.Ct, 263 Ga. 602 , 437 S.E.2d 320 (1993).
Second, petitioner requests that we clarify an ambiguity in our opinion wherein we stated:
The district court ... properly left to the Commission the responsibility of making the factual determinations as to whether each class member has timely filed an amended return or a claim....
Brumley, 868 P.2d at 799 . That statement is in error. The Tax Commission admitted in its answer to the complaint that the class members had timely filed. The trial court ordered refunds to be paid to all members of the class. No challenge was raised on appeal to any lack of filing or the timeliness of filing. Therefore, we amend our opinion by striking the statement that the Commission should determine whether each class member timely filed an amended return or a claim.
Third, the district court ordered refunds together with interest thereon at the rate of “12 percent per annum in accordance with Utah Code Ann. § 59-10-538 , 1987 as amended.” No issue was raised on appeal respecting the award or the rate of interest. After our opinion was handed down, the legislature, in special session, enacted a statute which petitioner argues limits the award of interest to 6 percent per annum. H.B. 7, 2d Spec. Sess. (1993).
In accordance with our long-standing practice of refusing to consider issues raised for the first time on rehearing, we decline to decide whether this new legislation can be lawfully applied in the instant case. However, inasmuch as the order appealed from is interlocutory and the ease is being remanded to the district court for further proceedings, petitioner is free to present this issue to that court for its determination. Utah R.Civ.P. 54(b). This direction comports with our limited function as an appellate court to review orders and judgments made by the trial courts in the first instance.
The petition for rehearing is denied, and the opinion is amended as indicated above.
ZIMMERMAN, C.J., HALL, J., and JUDITH M. BILLINGS, Court of Appeals Judge, concur.
STEWART, Associate C.J., having disqualified himself, does not participate herein; BILLINGS, Court of Appeals Judge, sat.
DURHAM, J., having disqualified herself, does not participate herein.
HALL, J., acted on this case prior to his retirement.