653 P.2d 402 | Colo. | 1982
The petitioner Sky Chefs, a division of Flagship International, Inc., appeals a Denver district court order dismissing its C.R. C.P. 106(a)(4) petition seeking review of a Denver Department of Revenue use tax assessment.
Sky Chefs operates two cafeterias for the benefit of its employees at Stapleton Airport in Denver. In December 1978, Sky Chefs received from the Denver Department of Revenue a notice of final determination, assessment and demand for payment for use taxes unpaid from March 1, 1975 through February 28, 1978 for food served to its employees. Sky Chefs timely filed a petition for administrative review, and the Department of Revenue conducted a hearing in July, 1979. In the Department’s “Findings, Conclusions and Final Decision,” issued November 26, 1979, it directed Sky Chefs to pay use taxes in the amount of $15,141.19. The decision was delivered to the petitioner on December 6, 1979, and the petitioner filed a petition seeking relief on a number of grounds from the administrative order under C.R.C.P. 106 on December 28, 1979.
The respondents, City and County of Denver, the Mayor, the Manager of the Department of Revenue, the Deputy Treasurer and supervisors in the Department of Revenue, moved to dismiss the petition because Sky Chefs failed to file a review bond as required by Denver Revised Municipal Code 166A.9-6
Before making application to the District Court under Rule 106(a)(4) of the Colorado Rules of Civil Procedure, the party making such application shall file with the Manager [of Revenue] a bond in twice the amount of the taxes, interest, and other charges audited and stated in the determination and decision of the Manager with surety as is now provided*404 in other cases of appeal, or at his option may deposit lawful money of the United States in the same manner as herein provided.
The respondents also moved to dismiss the petition because Sky Chefs failed to bring its action within 20 days after notice of the decision of the Manager of Revenue as required by Denver Revised Municipal Code 166A.9-8
Such writs [under Rule 106(a)(4) of the Colorado Rules of Civil Procedure] shall be issued by the Clerk of the Court upon a verified petition of the taxpayer, filed within 20 days after notice of the decision of the Manager of Revenue in any such matter [tax refund applications].
The district court found that because Sky Chefs failed to comply with both sections of the Code, it did not have jurisdiction and dismissed the case.
I.
The respondents contend that the Code’s requirement that petitioners file a bond with the Manager of Revenue before seeking C.R.C.P. 106(a)(4) review is analogous to the mandate of section 39-21-105(4), C.R.S.1973 (1981 Supp.) that a taxpayer post bond before appealing the assessment of state taxes, Callow v. Department of Revenue, 197 Colo. 513, 594 P.2d 1051 (1979) and Shotkin v. Perkins, 118 Colo. 584, 199 P.2d 295 (1948).
Sky Chefs counters that the bonding requirement in both Callow and Shotkin was created by the state statute under which the taxpayers were seeking review and therefore the bonding requirement was of uniform application in all courts throughout the state, as required by Colo. Const. Art. VI, Sec. 19. Here, the bond as a condition to seeking review under C.R.C.P. 106(a)(4) is required by a Denver ordinance and applies only to taxpayers seeking review in the Denver district courts of a decision of the Denver Manager of Revenue. Sky Chefs maintains that C.R.C.P. 106(b) does not condition the filing of a petition for review of the acts of any inferior tribunal on the posting of bond as security. See PII of Colorado, Inc. v. District Court, 197 Colo. 239, 591 P.2d 1316 (1979). Sky Chefs notes that the respondents may petition the district court to require that a bond be posted as a condition of a stay of execution on the tax assessment, but contends that respondents may not legislate such a requirement as a condition to the petitioner’s right to seek judicial review in state court. We agree with Sky Chefs’ contentions.
Our analysis here is controlled by our decision today in Gold Star Sausage Company v. Kempf, 653 P.2d 397, Colo. (1982) where we ruled that local ordinance provisions could not control the filing of a petition seeking review under C.R.C.P. 106(a)(4). Therefore, we hold that the requirement in Denver Revised Municipal Code 166A.9-6 that a bond be posted with the Manager of Revenue before a Rule 106 proceeding be commenced is invalid, and the district court erred in ruling that it was without jurisdiction on this ground to entertain Sky Chefs’ petition.
II.
The district court also dismissed Sky Chefs’ petition on the basis that it was not filed within 20 days of receipt of the decision of the Manager of Revenue as required by Denver Revised Municipal Code 166A.9-8. We specifically considered this issue in Gold Star Sausage Company v. Kempf, supra, and ruled that petitions seeking review of a decision of the Manager of Revenue concerning use tax assessment could be filed within the 30 days allowed by C.R.C.P. 106(b).
The first petition filed by Sky Chefs on December 28, 1979 indicated that the final determination of the Manager of Revenue was on November 26, 1979. On January 3, 1980, the petitioner filed a first amended petition alleging that the final determination of the Manager was on November 28, 1979. The record certified to the district court by the Department of
Judgment reversed and case remanded to the district court with directions.
. This case was transferred here from the Court of Appeals under sections 13-4-110(l)(a) and 13-4-102(l)(b), C.R.S.1973 because it involved a constitutional question.
. Article 166A.9-6 was repealed and reenacted as § 53-125(a) by Ord. No. 667-81, § 1, adopted December 14, 1981.
. Article 166A.9-8 was repealed and reenacted as § 53-125(b) by Ord. No. 667-81, § 1, adopted December 14, 1981.