242 Conn. 599 | Conn. | 1997
Lead Opinion
Opinion
The defendant, the commissioner of revenue services (commissioner), appeals from the judgment of the Appellate Court dismissing his appeal for lack of a final judgment.
The plaintiffs, Kenneth Jones, Edward Jones and David Jones, operate Main Port Fish and Chips, a restaurant in Bridgeport. Following an audit for the period of September 1, 1988, through August 31, 1991, the commissioner found that the plaintiffs were liable for additional sales tax. The plaintiffs appealed to the Superior Court pursuant to General Statutes § 12-422,
The trial court sustained the plaintiffs’ appeal, concluding that the commissioner had improperly: (1) found that certain items sold as food were subject to the sales tax as “meals” within the meaning of General Statutes § 12-412 (13); (2) failed to treat each item of food sold as a separate “meal” and thereby improperly taxed the plaintiff for certain items costing less than $2 in violation of § 12-412 (51); and (3) concluded that certain sales were not exempt as sales of food to nursing homes or rest homes in accordance with § 12-412 (9). The trial court remanded the case to the commissioner to recalculate the plaintiffs’ tax liability in accordance with the court’s ruling and to consider newly available cash register receipts.
From the judgment of the trial court, the commissioner appealed to the Appellate Court and the plaintiffs thereafter cross appealed. The Appellate Court dismissed both the appeal and the cross appeal for lack of a final judgment. Thereafter, the commissioner alone petitioned for certification pursuant to Practice Book § 4126.
The plaintiffs had appealed to the trial court from the commissioner’s decision pursuant to § 12-422, which allows for sales and use tax appeals to be tried de novo. See Sanitary Services Corp. v. Meehan, 235 Conn. 393, 394-95, 665 A.2d 895 (1995); Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 144-45, 527 A.2d 679 (1987). The trial court, pursuant to § 12-422, remanded the case to the commissioner. The plaintiffs argue that an appeal
We conclude that our decision in this case is controlled by Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 422, 521 A.2d 569 (1987), wherein this court considered a trial court’s order under General Statutes § 12-237
Although we reverse the judgment of the Appellate Court and remand the case to that court for consideration of the commissioner’s appeal, because our grant of certification encompassed only the dismissal of the commissioner’s appeal, the dismissal by the Appellate Court of the plaintiffs’ cross appeal to that court is not affected by our adjudication of this appeal. Pursuant to Practice Book § 4126, the commissioner filed a petition for certification seeking to overturn the Appellate Court’s judgment dismissing its appeal to that court. Although the Appellate Court also dismissed the plaintiffs’ cross appeal, the plaintiffs did not file their own petition for certification seeking review of that judgment in this court. Furthermore, although subsequent to the commissioner’s petition for certification, the plaintiffs could have filed a cross petition for certification pursuant to Practice Book § 4129,
The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.
In this opinion CALLAHAN, C. J., and BORDEN and NORCOTT, Js., concurred.
We granted the commissioner’s petition for certification to appeal limited to the following question: “Under the circumstances of this case, did the Appellate Court properly dismiss the defendant’s appeal for lack of a final judgment?” Jones v. Crystal, 240 Conn. 904, 688 A.2d 333 (1997).
General Statutes § 12-422 provides in relevant part: “Appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the Commissioner of Revenue Services under section 12-418, 12-421 or 12-425 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain .... Said court may grant such relief as may be equitable . . . .”
Practice Book § 4126 provides: “Certification by Supreme Court
“Appeals may be taken to the supreme court in causes determined in the appellate court where the supreme court, upon petition of a.n aggrieved party or request of the appellate panel which heard the case, certifies the case for review.”
Even if this case were controlled by the UAPA; General Statutes § 4-166 et seq.; the UAPA now provides that any remand to the administrative remand is a final judgment for purposes of an appeal. General Statutes § 4-183 (j); see Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 496, 659 A.2d 714 (1995).
General Statutes § 12-237 provides in relevant part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the Commissioner of Revenue Services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain .... Said court may grant such relief as may be equitable . . . .”
Practice Book § 4129 provides in pertinent part: “(b) Any other party aggrieved by the judgment of the appellate court may file a cross petition within ten days of the filing of the original petition. The filing of cross petitions, including the payment of the fee, service pursuant to Sec. 4014, the form of the cross petition, and all subsequent proceedings shall be the same as though the cross petition were an original petition.
“(c) The filing of a petition or cross petition by one party shall not be deemed to be a filing on behalf of any other party.”
Concurrence in Part
concurring and dissenting. I agree that under Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 422 n.8, 521 A.2d 569 (1987), this court is required to reverse the judgment of the Appellate Court.
I do not agree, however, that it was necessary for the majority to conclude that the plaintiffs’ cross appeal is not reinstated by this court’s decision. As I understand the majority’s rationale, the cross appeal is not viable because the plaintiffs did not file a cross petition for certification. Since the cross appeal was not before us, the majority should not have commented as it did. If the cross appeal were before us, I see no reason why it also should not be reinstated as it was dismissed on the same grounds as the defendant’s appeal. In the interest of fairness, the cross appeal should be heard along with the appeal.
Beyond being gratuitous, the observation concerning the cross appeal punishes a party, who would rather have this matter concluded as it had been in the Appellate Court, for not filing a “tongue-in-cheek” cross petition for certification. Under the majority’s decision, in order to save their cross appeal, the plaintiffs were required to argue that their cross appeal should not
I, therefore, concur in the result only as to the defendant’s appeal.