*1 though death tax on state death allowable state credit line 15. this case even Thus, argument basically His is that the order in tax used. no credit was credit is not the calculations are made allowable. form, federal estate tax Form and the appear
order which two credits CONCLUSION the federal tax code that the state indicate to limit legislative purpose The clear death tax credit is to be “allowed” before state death taxes to those that are deduct- prior transfers credit calculated. is due, ed actually from federal estate taxes ordering argument But this of credits is suggestion the text’s that “allowable” is to concedes, unpersuasive. As the director along phrase understood with government the federal not care does tax,” “against the federal estate and the credit in which line the this case is taken ambiguities rule of construction that in a same; net on because the result is the a tax imposing statute are to construed federal tax is estate due. The order in favorably taxpayer lead to the all appear which the credits on the tax form same conclusion. Because the trust owed inor States United Code little evi- tax, no federal estate it can have no Mis- Assembly’s dence of the General intent liability. souri decision estate tax when it used the term “allowable” its Hearing the Administrative Commission enactment of section 145.011. hereby reversed.
Finally, argues the director All concur. a construction favorable to the trust has construing the effect of the term “allowed” § the first clause 145.011 and the
term “allowable” the second clause of synonymous.
the statute as The director
claims this construction afoul runs of the
rule of every construction that word or
clause of a given statute to be effect. Hyde Housing Partnership Park v. Di Respondent, KINZENBAW, Brent L. (Mo. rector 850 S.W.2d 1998). above, banc asBut noted the terms REVENUE, Appellant. DIRECTOR OF have meanings. different A tax credit “al lowed” is one that is taken actually No. SC 83802. approval authority. An taxing Missouri, Supreme Court of “allowable” tax credit actually is one that En Banc. would have reduced the tax burden but taken. which was not Absent the use of Dec. the word taxpayer “allowable” a could ar gue that she has the option paying
entire tax to the government.2 federal arguments
The director’s not withstand
ing, federal tax liability there is no estate appears exactly
2. That posing equal to be occurred what tax to the state death tax credit Eberbach, State Revenue v. only "allowed” federal statute created (Ind.1989). taxpayer N.E.2d 1194 suc- liability "actual for the credit taken.” cessfully argued that an Indiana statute im- *2 Nixon, Gen., Atty. (Jay)
Jeremiah W. Solicitor, R. Alana M. Layton, State James Solicitor, Barragan-Scott, Deputy James III, Gen., Chenault, Mo. Sp. Atty. Asst. A. City, Ap- for Dept, of Jefferson pellant. Sinder, Cisar, Timothy Lake
Tom R. Ozark, Respondent. for WOLFF, Judge. A. MICHAEL revenue The director of L. Kinzenbaw’s driver’s license Brent grounds that Kinzenbaw ten more than twice of has been convicted Kinzenbaw filed in circuit court to review petition provides “de The statute suspension. novo” review. an answer that includ-
The director filed
upon
record
ed
At
circuit
was based.
ev-
party introduced
hearing,
neither
held that the director
The court
idence.
carry
failed to
of proof’
petition
her “burden
zenbaw’s
in the circuit court
setting
entered
aside the
labeled
denial
“Petition
review
of the license.
of driver’s license.” The director’s answer
treats the administrative action as a denial
*3
follow,
For reasons that
the Court holds:
“application
driving
Kinzenbaw’s
Kinzenbaw has
producing
the burden of
802.060(9).1
privileges”
under
qualified
evidence that he is
for a driver’s
or a
Whether a
denial of a
license, and the
license, the
establish
pleadings
producing evidence that he is not. The
reason
Kinzenbaw does
have driver’s
director meets
by introducing
her burden
license is the director’s assertion
Kin-
the administrative record. The burden of
zenbaw has
driving
three convictions for
persuasion, as distinct from the burden of
while intoxicated. From the pleadings, it
evidence,
is at all
on Kin-
times
appears
eligible.
that he is otherwise
zenbaw and never
It is
shifts.
Kinzen-
baw’s burden to
prove
answer,
the facts on
In the director’s
she “affirma-
which the
in denying
director relied
tively
alleges”
states and
that Kinzenbaw
license are not true
are legally
or
insuffi- has a
in Morgan County
“BAC” conviction
cient to support the denial or suspension of
in
“DWI” conviction
Iowa in
the license.
1998, and a
conviction in
“DWI”
Camden
County in 1999. Attached to the director’s
judgment
circuit court’s
is reversed
answer and incorporated by reference is
and remanded.
purporting
Pleadings
Record
the Circuit
show these convictions.
Court
hearing
brief;
The circuit court
was
Kinzenbaw had a driver’s license. The
entirety
its
transcript
consists of 81
Kinzenbaw,
director notified
in the words
lines.
prosecuting attorney
repre-
his
circuit court petition admitted in the
senting the director
“I
present
said: would
answer,
director’s
the Operator’s
“that
li-
time,
your
evidence at this
honor.”
previously
cense
issued
the Missouri
Department
attorney’s
...
Revenue
will be
entire case
sus-
was:
pended
evidence,
for a period
years
of ten
present
your
for the
‘We
honor.
alleged
(Kinzen-
reason that the Plaintiff
We’d
judgment
ask for a
in our favor—
baw) has been convicted three
upon
or more
based
a lack
presented
of evidence
times of driving
while intoxicated.” Kin-
of Revenue.”
302.060(9)
1. Section
RSMo
petitioner
states in
finds that the
has not been convict-
any person
"To
alcohol,
full:
who has been convicted
ed of
offense related to
con-
law,
violating
more than twice of
state
or a
drugs during
trolled
preced-
substances or
county
municipal
ordinance where the
years
petitioner’s
ten
and that
habits
judge in
attorney
such
an
cases was
and the
petitioner
long-
and conduct show such
to no
represented by
defendant was
or waived the
pose
public safety
er
a threat
to the
of this
right
attorney
writing,
to an
relating
state,
may
the court
order the director to
intoxicated;
that,
driving
except
while
after
petitioner
petition-
issue a license to the
if the
expiration
of ten
from the date of
pursuant
er
qualified
pro-
is otherwise
to the
violating
conviction of the last
offense
such
visions of sections 302.010 to 302.540. No
relating
law
ordinance
while
person pursuant
obtain a license
intoxicated,
who
so convicted
provisions
through
of this subdivision
court
may petition
county
the circuit
court
action more than one time.”
which such last conviction was rendered and
person's
statutory
court
All
are
shall review
references
to RSMo
habits and
conduct since such conviction.
If the court
unless otherwise indicated.
key
has two
directives.
observed that “the
The statute
Thereupon,
court
forward
going
Director has
burden
First,
novo,” a
the cause is heard “de
...
failed to do
phrase meaning
Latin
“anew.”3
common
”
its
trial court entered
so.... When
novo,” the
a matter is heard “de
When
favor
of Kinzenbaw
written
parties
particu
and there is no
start over
department
court
revenue
said
proceedings,
given
prior
lar deference
its
of proof.”
“failed meet
case,
administrative record on
This court
appealed.
The director
the director’s decision was based.
by the
opinion
transfer after
granted
Revenue, 858
Jenkins v. Director of
jurisdiction.
appeals. We have
Mo.
*4
The
(Mo.App.1993).
sec
S.W.2d
Const,
V,
art.
section
ond directive of section 302.311 is
Statutory
The
Scheme
pro
matter is
be heard in the manner
to
appeal
an
to
provides
Section 802.3112
governs admin
chapter
in
vided
court of the driver’s residence
the circuit
chap
parlance
In the
appeals.
istrative
suspended
is
or
a
license
where
driver’s
are
cases and
ter
there
“contested”
is
application for driver’s license
denied.
A contested case is
“noncontested” cases.
provid-
appeal
The
is to be “in the manner
agency
one where the administrative
536, RSMo, for the review of
by chapter
ed
hearing.
a
following
a decision
rendered
cir-
decisions-”
the
536.010(2);
Moving
Benton-Hecht
Section
court
“the cause shall be heard
appeal,
cuit
Call,
Storage,
Inc.
S.W.2d
&
may
the circuit court
order
de novo and
Since there was
hear
(Mo.App.1990).
license,
grant
such
sustain
the director
“contest”)
(or
agency,
at the
Kinzen-
by
or revocation
the di-
the
and is thus
is “noncontested”
bav/s case
same,
rector,
modify
or
the
or
set aside
governed by section 536.150.4
such license.”
revoke
any
in full: “1. When
“In the event
4. Section 536.150 states
Section 302.311 states
full:
body existing
or
under
administrative officer
application
is denied or with-
an
for a license
municipal
by
by
or
statute or
the constitution
held,
suspend-
or
the
that a license is
event
a
shall have rendered
charter or ordinance
director,
by
applicant or
or
the
the
ed
revoked
subject
is not
to administra-
decision which
aggrieved may appeal to
cir-
the
licensee so
review,
legal rights,
determining
tive
the
county of his
in the
cuit court of the
residence
including
any person,
privileges
or
duties
536, RSMo,
chapter
by
provided
manner
license,
and
the denial or revocation
a
any
review of administrative decisions at
the
provision
judicial inquiry
is
other
there
thirty days
notice
time within
after
decision, such decision
into or review of such
is
or withheld or that
license
license
denied
injunction, certio-
may be reviewed
suit for
Upon
appeal
or
such
is
revoked.
mandamus,
rari,
prohibition
appro-
other
or
the
be heard de novo and
the cause shall
action,
pro-
such review
priate
may
grant
circuit court
order
ceeding
may
court
determine
facts
license,
or revo-
such
sustain
question
such
whether
relevant to
director,
modify
or
cation
set aside
subject
of such decision
at
time
same,
Appeals
or
license.
from
revoke such
legal duty,
right, or was
or had such
such
judgment
may be
of the circuit court
may
privilege, and
hear such
entitled to such
prosecuting
as
civil
attor-
taken
cases.
question may
properly
such
evidence on
taken,
county
appeal
such
is
ney of the
where
adduced,
may
wheth-
the court
determine
director, and
appear in behalf of the
shall
decision,
they
facts as
in view the
er such
defend,
may
case
re-
prosecute or
unconstitutional,
court,
un-
appear
quire.”
lawful, unreasonable,
capricious
arbitrary, or
discretion; and the
an abuse of
or involves
(Seventh
accordingly, and
shall render
3. Black's
court
Dictionary
Law
body
or
ed.1999).
may
the administrative officer
order
license,
bringing
the context of driver’s
bears
the action
burdens similar
portions
to those
or
pertinent
say
plaintiffs
petitioners
of the statute
borne
directive,
“in
any such
other civil actions. And the
proceeding,
review
536.150,
may
the words of
court
determine the facts relevant
may
court
determine that the
question”
whether the
administra-
appli
driver or
unlawful,
“unconstitutional,
tive action
“had
right,
cant
such
or was entitled to
Further,
unreasonable, arbitrary
capricious,
privilege.”
such
“the
an abuse
decision,
of discretion” would likewise
determine whether
such
view
place the
court,
burden on
driver to show
they appear
the facts as
unconstitutional, unlawful,
unreasonable,
administrative action should
set aside
arbitrary,
for one or more such reasons.
capricious or involves an abuse
court,
according
statutory
to these
of discretion....”
sections, must determine “facts” and its
statutes,
section 302.311 and section
proceeding is “de novo.”
536.150, construed together,
explic-
do not
Those who enact statutes can expect
itly allocate burdens of pleading
proof.
*5
that courts will allocate burdens of plead-
actuality,
substantive statutes that are
ing
proof
ways
in traditional
that show
explicit in their procedural effects—such
sense,
common
fairness and
faithfulness
allocating
burdens of pleading and
purpose.5
the statutory language and
proof
exquisite treasures. But they
—are
instances,
rare.
are
most
including this
When
discuss the
courts
burden
one, courts are left
statutory
to search the
proof,
components:
there are two
the bur
language for clues.
with)
(or
producing
going
den of
forward
There are some
Both
clues.
sections
evidence
persuasion.
and the burden of
See McCloskey Koplar,
put the burden on
v.
aggrieved
527,
driver to
46
329 Mo.
(the
(1932).6
“appeal”
557,
term used in section
5.W.2d
561-63
Cases also
302.311) or bring “suit” or “other appro-
refer to a
pleading,
burden
(the
priate
action”
words of section
assigned
most instances
is
simply
536.150). That
proceeding
is
party
proof
“de
with the burden of
on an issue.
See,
e.g.,
v. Metropolitan
imply
novo” would
that
Menzenworth
(1959).
to take such
prop-
rity,
further action as it
Compare
be
12 Stan. L.Rev. 5
Gomez
require;
Toledo,
er to
but the
shall
635,
1920,
not substi-
v.
446
100
64
U.S.
S.Ct.
tute its discretion
legally
for discretion
vested
(1980),
Mary’s
L.Ed.2d
572
St.
Honor
body,
in such administrative officer or
and in
Hicks,
2742,
Ctr. v.
509 U.S.
113 S.Ct.
where the granting withholding
cases
of a
(1993).
bearing the affirmative of the issue WHITE, HOLSTEIN, BENTON, throughout.) Connaway also v. See Wal PRICE, LAURA DENVIR STITH and ters, 913, (Mo.App.1990); 786 S.W.2d 918 JJ., concur; C.J., LIMBAUGH, Brokers, Inc., concurs in Hautly Cheese Co. v. Wine separate 920, opinion filed. 706 922 (Mo.App.1986). S.W.2d Revenue, See Johnston v. Director 762 ord to the circuit the director is (Mo.App.1988), S.W.2d 444 where the court sufficient. also v. Reve- See Kinder Director of nue, (Mo.App.1995). said the submission of the administrative rec- 895 S.W.2d majority, by Only plaintiff
I then does suppose requir- be introduced. to contest point the Director introduce the adminis- have the of reference to parts Kinzenbaw makes a trative record before those of the record he contends are ease, prima attempting suspen- to reconcile legally support insufficient facie Wampler v. dicta in Director sion. (Mo. 2001), banc S.W.3d matter, practical As a Kinzenbaw should required, are propo- Director is as “[t]he proving the contents of problem have cases, put other de civil nents in novo all, record. After he into evidence that which fact finder alleges paragraph petition in the last his sure, Wampler asked to To be consider.” the records were made available correctly decided that the Director must But, fact, it him the Director. affirmatively into introduce evidence unnecessary him offer into proceed- record from the administrative proof any affirmative of the record whatso- ings “proponent” when the Director is because the records were attached ever in that record. information contained and, filed Director answer But, question of whether the Director such, judicial constitute a admission of case was “proponent” is a such civil judicial the court can take notice. Wampler, not raised or addressed Lines, Wehrkamp v. Watkins Motor See wrongly assumed that simply Court (Mo.1969); Inc., 715-16 436 S.W.2d the Director carried 600, 604 Stroup Leipard, 981 S.W.2d evidence. proof/burden Lohman, (Mo.App.1998); Pool v. Here, proof is Kinzenbaw’s burden of effect, 195, 197 In (Mo.App.1996). S.W.2d necessarily by the elements of determined Director, herself, up proved claim the statute au- Kinzenbaw’s under records, of that relieving thus Kinzenbaw 302.311, thorizing appeal, Contrary to Kinzenbaw’s as- requirement. only RSMo 2000. There are two elements “pleads the Director’s answer sertion that 1) suspend- Director to the claim: for the sus- puts at issue the reasons 2) license, and ed Kinzenbaw’s driver’s out pension,” the the issue answer takes unlawful. Kinzen- contention. plead prove these elements baw must Kinzenbaw, sum, I hold that would way in the other civil case. same Director, than the had the burden rather fact, out petition spe- sets *8 introducing of to each of the two allegations relating cific so in failure do and attached) (see A Appendix elements sought. the relief he precluded this case tacitly prove has committed himself to in the law a Because of confusion prove allegations. Obviously, in order to deci- of the dicta result unlawful, the rec- that the sion, a I remand the case for new would was based ord on which the to meet hearing Kinzenbaw his to allow petitioner’s of (usually the documentation convictions) proof. must of municipal first state or APPENDIX A proposed 4. of Plain- revocation
IN THE CIRCUIT COURT OF improper tiffs Operators License is COUNTY, MORGAN in that supported by the record Plain- MISSOURI by tiff not been a court of has convicted jurisdiction competent ASSOCIATE CIRCUIT JUDGE sufficient traffic number of offenses within time DIVISION required imposition warrant of the KINZENBAW, BRENT L. Petitioner penalty proposed points by the Defendant. vs. proposed by 5. action the Defen- REVENUE, DIRECTOR OF OF STATE improper dant illegal there is MISSOURI,Respondent. upon which the basis Defendant CASE NO. CV1099-305AC penalty points against assess Plaintiff alleged since of convictions Plaintiff do 20,1999 FILED DEC. not, in fact constitute convictions for traffic MORGAN COUNTY CIRCUIT COURT support offenses which would warrant or ASSOCIATE PROBATE & DIVISION of imposition penalty points. TO PETITION REVIEW SUS- 6. Records made to the De- available PENSION OF DRIVER’S by the of Department fendant Revenue LICENSE alleged reflect convictions of COMES NOW Plaintiff and for his improper Plaintiff are and without founda- cause of action informs the Court as fol- jurisdic- tion proper and that court of lows: tion Plaintiff of convicted the of- 1. Plaintiff is now and at all times fenses. concerned,
hereafter has been resident WHEREFORE, Plaintiff prays County Morgan, the State Operator’s revocation Plaintiffs License residing Missouri now at Highway privilege operate aforesaid and his Mills, Gravois Missouri 65037. motor within the vehicle State Missouri naught be set aside and held for and that Defendant, Director of Revenue all alleging support imposi- records concerned, now and at all times hereafter penalty points against tion of has been the Director of Revenue for the record of Plaintiff be removed from Missouri State such records Defendant order of County Missouri with offices court. Cole, Jefferson, City of State of Missouri. Timothy R. Cisar complained actions of herein have Is/ R. TIMOTHY CISAR #31271
been taken Defendant in capacity his MONACO, & INGLISH P.C. said Director of Revenue in the State BLVD., DAM SUITE BAGNELL Missouri. Defendant notified Plaintiff *9 OZARK, LAKE MO 65049 the Operator’s License issued previously 573-964-6211 by the Missouri Revenue ATTORNEY FOR PETITIONER Plaintiff, No. to wit: 478-88-6654 will be period for a of ten for the alleged reason Plaintiff has been
convicted or more three times of