Case Information
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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2013-035
DAVID P. EBY & a.
v.
THE STATE OF NEW HAMPSHIRE Argued: November 14, 2013 Opinion Issued: June 13, 2014 Devine, Millimet & Branch, PA, of Manchester (Thomas Quarles, Jr. and Joshua M. Wyatt on the brief, and Mr. Wyatt orally), for the petitioners. Joseph A. Foster, attorney general (Laura E. B. Lombardi, assistant attorney general, on the brief and orally), for the State.
LYNN, J. The petitioners, David P. Eby and Leonard Willey, appeal orders of the Superior Court (McNamara, J.): (1) granting summary judgment in favоr of the State; (2) denying the petitioners’ motions for summary judgment; and (3) dismissing the petitioners’ remaining claims in their putative class action challenge to the constitutionality of the state’s tax on gambling winnings, RSA 77:38-:50 (Supp. 2009) (amended 2010; repealed 2011). We affirm.
I
Most of the relevant facts are not in dispute. Effective July 1, 2009, the Legislature imposed a ten percent tax on gambling winnings (Gambling Winnings Tax). Laws 2009, 144:249 (codified at RSA 77:38-:50 (Supp. 2009) (repealed 2011)). The legislation defined “gambling winnings” as “winnings from lotteries and games of chance including, but not limited to bingo, slot machines, keno, poker tournaments, and any other gambling winnings subject to federal income tax withholding.” RSA 77:38, III (Supp. 2010) (repealed 2011). The tax applied to gambling winnings of New Hampshire residents “from anywhere derived,” and those of nonresidents “derived from New Hampshire entities.” RSA 77:39, I (Supp. 2010) (repealed 2011).
The Gambling Winnings Tax was repealed effective May 23, 2011. Laws 2011, ch. 47. The repeal was not retroactive, meaning that the tax was assessed on gambling winnings between July 1, 2009, and May 22, 2011. See Laws 2011, 47:3, :4.
Willey is a New Hampshire resident who, for the three yеars preceding the filing of this action, derived almost all of his earned income from gambling. For the 2009 tax year, he owed no federal income tax because his gambling losses exceeded his winnings. Under the Gambling Winnings Tax, he reported gambling winnings of $184,700 for that part of 2009 during which the tax was in effect and paid $18,470 in tax under the statute. All of his winnings during this period were from out-of-state casinos.
Eby was not an original party to this action, but was added as a substitute party later in the case. He is a New Hampshire resident who, in May 2011, purchased a scratch ticket offered by the New Hampshire Lottery Commission. Eby won ten dollars on the ticket, and was required to pay one dollar under the Gambling Winnings Tax as a result.
This class action was filed on May 20, 2010, by putative class representatives Dean T. Leighton and Leighton Family Enterprises, LLC (the Leighton Petitioners), and Willey. The petitioners sought a declaratory judgment that the Gambling Winnings Tax was illegal and unconstitutional on its face, as applied to pre-enactment lottery winners receiving their winnings through annuities, and as aрplied to professional gamblers, as well as a refund of all such taxes collected or withheld.
*3 The parties agreed that there were no genuine issues of material fact and that the case could be decided on the legal issues. They also agreed to postpone class certification until after all legal issues had been resolved. The parties requested, and the trial court approved, an interlocutory transfer without ruling so that the legal issues could be decided by this court. However, we declined to accept the interlocutory transfer.
On May 19, 2011, the Leighton Petitioners and Willey moved for summary judgment. Before the State’s response and cross-motion for summary judgment was filed, the Leighton Petitioners resolved their claims against the State, after which Eby was added as a party. The trial court denied the petitioners’ motion and granted the State’s cross-motion in part. The court ruled that the Gambling Winnings Tax neither lacked uniformity nor was disproportional, unjust, or unreasonable in violation of the New Hampshire Constitution, and that it did not violate the Commerce Clause of the Federal Constitution. It also found a genuine issue of material fact as to whether Willey was a professional gambler. The trial court set forth factors, including those that the Internal Revenue Service considers when determining whether a taxpayer’s activity constitutes a trade or business for federal tax purposes, see Treas. Reg. § 1.183-2(b) (1972), that it intended to consider in deciding whether Willey was a professional gambler.
Thereafter, the petitioners conceded that Willey would not qualify as a professional gambler under the test adopted by the court. They reserved their right to appeal the use of that test and disputed the court’s ruling that only a professional gambler could raise as-applied constitutional arguments on behalf of other professional gamblers as a class representative.
In 2012, the declaratory judgment statute was amended so as to provide for expanded “taxpayer standing” to chаllenge governmental actions. See Laws 2012, ch. 262; RSA 491:22 (Supp. 2013). Thereafter, the petitioners filed a motion for summary judgment arguing that the amendment gave them standing to raise all constitutional issues, including those related to professional gamblers. The State objected and moved to dismiss the petitioners’ remaining claims. On December 4, 2012, the court denied the petitioners’ motion for summary judgment and granted the State’s motion to dismiss. This appeal followed.
II
On appeal, the petitioners contend that the trial court erred by granting
the State’s motions for summary judgment and to dismiss their claims, and by
denying their motions for summary judgment. In reviewing the trial court’s
rulings on cross-motions for summary judgment, we consider the evidence in
the light most favorable to each party in its capacity as the nonmoving party.
*4
City of Concord v. State of N.H.,
We review the constitutionality of statutes de novo. N.H. Assoc. of
Counties v. State of N.H.,
III
We first address the petitioners’ facial challenges to the constitutionality of the Gambling Winnings Tax under the New Hampshire Constitution. The petitioners allege that: (1) the tax violates the uniformity requirement of the State Constitution; and (2) the tax is disproportional and unreasonable.
A
The petitioners argue that the Gambling Winnings Tax violated the
uniformity requirement of the State Constitution because it taxed gambling
winnings at a ten percent rate while interest and dividends are taxed at a five
percent rate. They argue that “gambling winnings” and “interest and
dividends” are both part of the broader class of “gross income,” and that in
order to achieve constitutional uniformity throughout that class, the taxes had
to be assessed at an equal rate. See Opinion of the Justices,
In general, “there is no other state in the union with a structure of taxing powers and limits comparable to New Hampshire’s.” Hurn, State Constitutional Limits on New Hampshire’s Taxing Power: Historical Development and Modern State, 7 Pierce L. Rev. 251, 252 (2009). We, therefore, begin with a review of this unique constitutional structure, which frames our analysis.
“Three provisions of the New Hampshire Constitution work in
conjunction to ensure the fairness of any scheme of taxation enacted by our
legislature.” First Berkshire Bus. Trust v. Comm’r, N.H. Dep’t of Revenue
Admin.,
First, Part I, Article 12 establishes that “[e]very member of the
community has a right to be protected by it, in the enjoyment of his life, liberty,
and property; he is therefore bound to contribute his share in the expense of
such protection.” N.H. CONST. pt. 1, art. 12. “This article requires that a
given class of taxable property be taxed at a uniform rate and that taxes must
be not merely proportional, but in due proportion, so that each individual’s just
share, and no more, shall fall upon him.” First Berkshire,
We have previously advised that “gross income” and “net income” are
classes of property that may be taxed at separate rates in conformity with our
constitution. See, e.g., Opinion of the Justices,
For example, in 1977 we were asked to determine whether income derived from the sale or exchange of capital assets could constitutionally be taxed at a rate different from the rate of tax imposed on gross income derived from the receipt of certain interest and dividends. Id. at 514. We advised that income from capital gains was sufficiently distinguishable from income from interest and dividends to justify their separate classification and assessment at different rates. Id. at 516. The proposed tax analyzed in that advisory opinion happened to be assessed on net income derived from capital gains, as opposed to the existing tax on gross income derived from interest and dividends. Id. But we based our conclusion that there was a rational basis for the separate classification of these two forms of income upon their “very different characteristics,” not upon the fact that one tax was assessed on net income while the other was assessed on gross income. Id.
The petitioners assert that the trial court misinterpreted that 1977
advisory opinion, and that we later “confirmed that gross/net income
classifications had endured the proliferation of classifications from the 1950s
to the 1970s.” In support of this argument, they cite a later advisоry opinion in
which we wrote that “[g]ross income is a class of property taxable under part
two, article six of the New Hampshire Constitution.” Opinion of the Justices,
The petitioners argue that even if the Legislature can constitutionally classify different kinds of gross income, gambling winnings are not sufficiеntly distinct from interest and dividends income to justify their separate classification. We disagree.
“Strictly speaking, the rule of equality and proportionality does not apply
to the selection of the subjects of taxation, provided just reasons exist for the
selection made.” N. Country Envtl. Servs.,
The petitioners are correct that the legislative history of the Gambling
Winnings Tax does not contain enumerated reasons for its enactment.
However, the New Hampshire Constitution requires only that “just reasons
exist” in selecting a certain class of property for taxation. N. Country Envtl.
Servs.,
“[T]he constitutionality of a taxation classification depends upon the
physical and functional characteristics of the property itself.” Opinion of the
Justices,
The inherent differences between “winnings from lotteries and games of
chance” and other forms of income justify their separate treatment for tax
purposes. Few other legitimate forms of income result from activity that may
be referred to as a “social problem,” as explained by the trial court. Gambling
winnings are also unique because they result from “lotteries and games of
chance,” making their receipt dependent, at least in part, upon events that are
largely fortuitous, and they result from activity that is recreational for at least
most participants. In comparison, “[i]nterest . . . is a form of compensation for
the use, or forbearance, or detention of money,” while “[d]ividends, such as are
taxed pursuant to RSA 77:4, . . . represent a distribution of the earnings and
profits of a corporation, partnership, or other association.” Opinion of the
Justices,
Given the “very considerable latitude of discretion” left to the Legislature
“as to the selection of proper subjects of taxation and the proportion of the tax
that shall be laid on each subject,” Smith,
B
The petitioners next argue that the Gambling Winnings Tax violated the constitutional requirements of fairness, reasonableness, and proportionality because the tax did not allow taxpayers to offset gambling losses against their winnings. N.H. CONST. pt. I, art. 12, pt. II, arts. 5, 6. Here, we address this argument to the extent that the petitioners raise it as a faciаl challenge to the Gambling Winnings Tax.
The federal tax code allows taxpayers to offset gambling losses to the
extent of their gambling winnings. 26 U.S.C. § 165(d) (2012). Several states
also allow for setoff of gambling losses against winnings. See, e.g., Minn. Stat.
§ 290.01, subd. 19 (2007 & Supp. 2012). But contrary to the petitioners’
claims, there are states that, at least to some degree, do not allow for the
deduction of gambling losses while taxing gambling winnings. See Byrd v.
*9
Hamer,
“Gross income” is, by definition, simply “[t]otal income . . . before
deductions, exemptions, or other tax reductions.” Black’s Law Dictionary 831
(9th ed. 2009). Thus, in essence, the petitioners’ argument boils down to the
question of whether the Legislature may tax gross income, or whether doing so
is unconstitutionally unfair, unreasonable, and disproportionate. We have
stated on a number of occasions that taxes on gross income are proper under
the New Hampshire Constitution. See Opinion of the Justices,
The petitioners cite no New Hampshire authority for the specific
proposition that a tax on gross income is unfair, unreasonable, and
disproportional. They say only that the Gambling Winnings Tax was
unconstitutional because it had “no reference to the ability of the taxpayer to
make payment,” Thompson v. Kidder,
Where we have found that a tax was unfair, unreasonable, or
disproportionate, the constitutional deficiency has been of a much different
character than the one the petitioners allege here. See Claremont School Dist.
v. Governor,
IV
We next turn to the petitioners’ argument thаt the Gambling Winnings
Tax violated the Federal Commerce Clause. In particular, they argue that the
tax violated the “negative aspect” of the Commerce Clause — also referred to as
the “dormant Commerce Clause” — because it applied to gambling winnings
won by New Hampshire residents both inside and outside the state, as well as
to in-state winnings by out-of-state residents. They assert that the trial court
erred in failing to apply what is commonly known as the Complete Auto test,
see Complete Auto Transit, Inc. v. Brady,
“For a court to hear a party’s complaint, the party must have standing to
assert the claim.” Gen. Elec. Co. v. Comm’r, N.H. Dep’t of Revenue Admin.,
In Wine and Spirits Retailers, Inc. v. Rhode Island,
Although the court in Wine and Spirits went on to fully address the plaintiffs’ dormant Commerce Clause argument against the state restrictions on franchise and chain-store arrangements, id. at 12-16, the argument *12 presented in this appeal is more akin to the one the Wine and Spirits plaintiffs made against the rеsidency requirement. The plaintiffs in Wine and Spirits brought the action in that case because they sought to avoid the nullification of their franchise agreements while retaining their liquor licenses. Id. at 5. They did not suffer, nor did they claim to suffer, any harm under the residency requirements.
The same is true in this case. We recognize that the petitioners paid the
Gambling Winnings Tax, and in this sense could claim to have suffered injury
in the same way that the plaintiffs in Wine and Spirits would have once the
State of Rhode Island had enforced its amended restrictions and either nullified
their franchise agreements or revoked their liquor licenses. See Wine and
Spirits v. Rhode Island,
V
We next turn to whether the petitioners have standing to bring their as- applied challenges. The petitioners argue that the Gambling Winnings Tax: (1) *13 was unconstitutionally retrospective as applied to previous lottery winners receiving their winnings through annuity payments; (2) was a proscribed occupation tax as applied to professional gamblers; and (3) violated the State and Federal Due Process and Equal Protection rights of professional gamblers. We do not reach these arguments because the petitioners lack standing to bring the as-applied claims of annuitants or professional gamblers. We analyze their standing to bring the claims of each, in turn.
A
We first analyze the petitioners’ standing to bring their retrospectivity claim on behalf of pre-enactment lottery winners receiving their winnings through annuities. The petitioners argue that the Gambling Winnings Tax was unconstitutional as applied to persons who won the lottery prior to the tax’s enactment and received some of those winnings through an annuity.
However, Eby and Willey do not claim to have paid taxes on gambling
winnings from an annuity. As set forth above, a party may challenge the
constitutionality of a statute only when the party’s own rights have been or will
be directly affected. Gen. Elec.,
B
The issue of the petitioners’ standing to raise the claims of professional gamblers turns on whether Willey is a professional gambler. In its order on the parties’ cross-motions for summary judgment, the trial court denied both motions with respect to Willey because a genuine issue of material fact existed as to whether he was a professional gambler. The trial court further stated that it would make this determination by applying factors drawn from the Internal Revenue Service’s criteria and used by at least one other court. Thereafter, the petitioners conceded that Willey was not a professional gambler under the IRS criteria, although they reserved their right to appeal the trial court’s use of those criteria.
On appeal, the petitioners assert that the State is estopped from disputing that Willey was a professional gambler because it had already stipulated to that fact in the Interlocutory Transfer Statement (ITS) the parties submitted in their failed effort to have this court accept an interlocutory appeal of this case. They also argue that the trial court erred in adopting the IRS criteria. Both arguments fail.
The ITS recites that “[t]he action was initiated by . . . a professional gambler who derived ‘gambling winnings’ through earned income.” It further states that “there are no material facts in dispute.” The petitioners contend that these statements in the jointly filеd ITS amount to admissions by the State that Willey is a professional gambler and that this fact is not in dispute.
“The doctrine of judicial estoppel protects judicial integrity by preventing
a party from prevailing in one phase of a case using one argument and then
relying upon a contradictory argument to prevail in another phase.” In re
Zachary G.,
While the circumstances under which judicial estoppel may be invoked vary, three factors typically inform the doctrine’s application: (1) whether the party’s later position is clearly inconsistent with the party’s earlier position; (2) whether the earlier position was accepted by the court; and (3) whether the party seeking to assert a later inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing pаrty if not estopped.
Id.
We agree with the trial court that the State derives no unfair advantage
nor imposes any unfair detriment on the petitioners by challenging Willey’s
status as a professional gambler, and thus his standing to contest the
constitutionality of the Gambling Winnings Tax as applied to professional
gamblers. Given that the interlocutory transfer request was denied by this
court, the petitioners cannot show any particular unfair advantage to the State
or unfair detriment to themselves in the case before the trial court that resulted
from the State challenging Willey’s status as a professional gambler, whether or
not such a position was inconsistent with the ITS. See In the Matter of Carr &
Edmunds,
The petitioners next argue that the trial court committed an error of law
in adopting a multi-faceted test, including factors promulgated by the IRS, in
determining whether a taxpayer’s activity constitutes a trade or business for
tax purposes. No New Hampshire case defines “professional gambler.” The
trial court relied upon Busch v. Commissioner of Revenue,
Id. (citing Treas. Reg. § 1.183-2(b)). The Busch court noted that these federal sources were particularly persuasive in that case because the Minnesota tax code incorporated aspects of the federal code.
The petitioners argue that the trial court should not have borrowed a legal standard from a source other than the tax statute under review, and that doing so improperly added language to the statute. They argue that the court should have “applied a test on a case-by-case basis” and determined that *16 Willey was a professional gambler because he had derived almost all of his earned income from gambling for a period of three years, and he had reported $184,700 in gambling winnings for the portion of 2009 in which the Gambling Winnings Tax was in effect.
The State asserts that if these facts suffice to determine that Willey was a professional gambler, then any individual without other significant income who gambled a significant enough amount of money could qualify as a “professional gambler,” regardless of other relevant considerations. Wе agree that this is not the test. The trial court properly concluded that the Groetzinger and IRS factors listed in Hughes are relevant to the fact-based determination of whether a party is a professional gambler. We need not determine whether other factors would also be relevant to this determination, as that question is not before us.
Because the petitioners have failed to show that the trial court erred in utilizing the multi-faceted test as described above, because Willey concedes that he does not qualify as a professional gambler under that test, and because he did not present the trial court with any additional facts establishing that he is a professional gambler, we hold that the petitioners lack standing to raise their challenges that the Gambling Winnings Tax is unconstitutional as applied to professional gamblers.
VI
In their remaining arguments, the petitioners contend: (1) that Willey has standing as a putative class representative to raise arguments on behalf of all persons in the clаss; and (2) that the Legislature’s 2012 amendment to the declaratory judgment statute gives the petitioners standing to bring an action seeking a declaratory judgment that the tax was unconstitutional. We are not persuaded.
A
First, the petitioners argue that, because Willey filed this case as a class action on behalf of all persons subject to the Gambling Winnings Tax, he has standing to raise all arguments on behalf of all others in the class, i.e., all those who paid the Gambling Winnings Tax.
“The class action is an exception to the usual rule that litigation is
conducted by and on behalf of the individual named parties only.” Wal-Mart
Stores, Inc. v. Dukes,
We disagree with the petitioners. The fact that the petitioners brought
this case as a class action does not exempt them from the requirement that
they have standing. Although the class certification determination was
postponed until after the ruling on the merits, this does not mean that we may
simply assume that they have standing to raise challenges to the statute on
behalf of any members of the putative class. For example, because Willey has
not established that he is a professional gambler, he lacks standing to raise the
as-applied constitutional claims of professional gamblers notwithstanding that
this case has been filed as a class action. In order to represent a class, the
petitioners must be part of that class, possessing the same interest and
suffering the same injury as the class members. Even the cases cited by the
petitioners in support of their argument are, in fact, fully consistent with this
rule. See Kinney v. Metro Global Media, Inc.,
Because the petitioners have not shown that they have suffered harm under the Commerce Clause, are professional gamblers, or are gambling winnings annuity recipients, they have not suffered the same injury as the members of these subclasses they claim to represent, and thus they have not demonstrated their entitlement to act as class representatives for the members of those subclasses.
B
Finally, the pеtitioners argue that the 2012 amendment to RSA 491:22 grants them standing as taxpayers to raise all constitutional deficiencies of the Gambling Winnings Tax.
We review matters of statutory interpretation de novo. Appeal of Phillips,
The Legislature amended RSA 491:22, I, in 2012 by adding the emphasized language, as follows:
I. Any person claiming a present legal or equitable right or title may maintain a petition against any person claiming adversely to such right or title to determine the question as between the parties, and the court’s judgment or decree thereon shall be conclusive. The taxpayers of a taxing district in this state shall be deemed to have an equitable right and interest in the preservation of an orderly and lawful government within such district; therefore any taxpayer in the jurisdiction of the taxing district shall have standing to petition for relief under this section when it is alleged that the taxing district or any agency or authority thereof has engaged, or proposes to engage, in conduct that is unlawful or unauthorized, and in such a case the taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced. The preceding sentence shall not be deemed to convey standing to any person (a) to challenge a decision of any state court if the person was not a party to the action in which the decision was rendered, or (b) to challenge the decision of any board, commission, agency, or other authority of the state or any municipality, school district, village district, or county if there exists a right to appeal the decision under RSA 541 or any other statute and thе person seeking to challenge the decision is not entitled to appeal under the applicable statute. The existence of an adequate remedy at law or in equity shall not preclude any person from obtaining such declaratory relief. However, the provisions of this paragraph shall not affect the burden of proof under RSA 491:22-a or permit awards of costs and attorney’s fees under RSA 491:22-b in declaratory judgment actions that are not for the purpose of determining insurance coverage.
Laws 2012, 262:1 (emphasis added). Under the plain language of the amended statute, the petitioners’ argument fails. Although it confers broad taxpayer standing, the amended declaratory judgment statute contains the limitation that it does not “convey standing . . . to challenge the decision of any board, commission, agency, or other authority . . . if there exists a right to appeal the decision under RSA 541 or any other statute and the person seeking to challenge the decision is not entitled to aрpeal under the applicable statute.” Put another way, where the Legislature has already conferred standing, by statute, upon a certain class of persons to challenge the decision of a board, *19 commission, agency or other authority, RSA 491:22 does not confer standing upon a larger class of petitioners, simply because they are taxpayers.
In the case of a taxpayer challenge to the constitutionality of an assessed tax, such an alternative, statutory scheme exists. RSA 21-J:28-b (2012) sets forth procedures for a taxpayer to appeal a tax assessment made by the New Hampshire Department of Revenue Administration (DRA). Under the statute, following a petition for redetermination and subsequent petition for reconsideration, a “taxpayer may appeal such decision by written application to the board of tax and land appeals or the superior court.” RSA 21-J:28-b, IV. The statute limits the legal issues to be considered on appeal to those rаised in the prior petitions for redetermination and reconsideration, “with the exception that the taxpayer may raise additional legal claims addressing constitutional issues.” Id. (emphasis added). The procedures outlined in RSA 21-J:28-a (dealing with the refund or credit of overpayment of taxes) and :28-b are “the exclusive method by which taxpayers may challenge their liability for any tax, or the application to them of any provision” of the statutes governing the DRA. RSA 21-J:28-a, VI (2012).
RSA 21-J:28-b thus creates a right to challenge the decision of a “board, commission, agency, or other authority” as contemplated in the exception to RSA 491:22 — in this case, the assessment of a tax by the DRA. Here, however, the petitioners seek to challenge assessments against persons other than themselves. But because the petitioners have not been subjected to the Gambling Winnings Tax in the circumstances in which they claim it is unconstitutional — i.e., as applied to those persons facing multi-state taxation, professional gamblers, and gambling-winnings annuity recipients — and therefore are not among those entitled to pursue the appellate process under RSA 21-J:28-b, it follows that they also lack standing to pursue such claims under the amended version of RSA 491:22.
VII
In sum, we hold: (1) that the Gambling Winnings Tax neither lacked uniformity nor was disproportional and unreasonable; and (2) that the petitioners lack standing to bring their remaining challenges to the tax.
Affirmed. DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.
Notes
[1] Leighton is a New Hampshire resident who won a Powerball jackpot on March 20, 1996, receiving his winnings via a twenty-year annuity. In 2000, he assigned his rights to receive the remainder of the annuity payments to Leighton Family Enterprises, LLC. In March 2010, the New Hampshire Lottery Commission withheld ten percent of the annuity payment pursuant to the Gambling Winnings Tax.
[2] Although we also wrote that requiring a business to pay taxes on both “alternate business
profits,” as proposed, and the existing class of “taxable business profits,” under RSA chapter 77-A,
could result in unconstitutional double taxation, see Opinion of the Justices,
[3] To the extent that the petitioners make this argument as applied to professional gamblers, we address their standing to make such as-applied arguments in Section V(B).
[4] We note that the legislative history shows the Legislature did apparently consider whether to allow the deduction of gambling losses from winnings. See N.H.H.R. Jour. 1125 (2009) (statement of Rep. Neal Kurk) (explaining that not allowing deduction of gambling losses would protect against fraud from winning bettors at racetracks using discarded losing betting slips to offset their own winnings).
[5] Because we address the petitioners’ standing arguments based on the 2012 amendment to the declaratory judgment statute, RSA 491:22, in Section VI(B), we here confine our analysis to whether the petitioners satisfy standing requirements absent those established by that statute.
[6] Insofar as petitioner Willey suggests that the Gambling Winnings Tax fails the Complete Auto test because it lacks а provision granting a credit or offset against the tax for taxes that could be imposed by the state where the winnings occurred, we observe that he would benefit from the credit or offset only if he actually paid a tax imposed by the other state. Because Willey does not allege that he was taxed by another state on his gambling winnings, it follows that he was not harmed in any way by the absence of such a provision in former RSA 77:38-:50.
[7] To the extent that the petitioners’ argument could be interpreted as asserting that the State
stipulated to their standing to raise claims on behalf of professional gamblers, we note that a
party cannot confer subject matter jurisdiction by waiver where it does not exist, and any court
order that acts on the merits based on a waiver would be void. See In the Matter of Goulart &
Goulart,
[8] To the extent that the petitioners argue that the State derived an unfair litigation advantage
because its prior stipulation was a judicial admission, this is a separate argument that was not
preserved for appeal. Therefore, we do not address it. See State v. Noucas,