Jazz Casino Company, L.L.C. v. Cynthia Bridges, Secretary, Louisiana Department of Revenue , 2017 La. LEXIS 951 ( 2017 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #026
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 3rd day of May, 2017, are as follows:
BY WEIMER, J.:
2016-C-1663 JAZZ CASINO COMPANY, L.L.C. v. CYNTHIA BRIDGES, SECRETARY,
LOUISIANA DEPARTMENT OF REVENUE (Parish of E. Baton Rouge)
For the foregoing reasons, the decision of the appellate court is
reversed, and the judgment of the district court is reinstated to
the extent that it compels the Secretary of the Louisiana
Department of Revenue to refund the amounts that Jazz overpaid in
hotel occupancy taxes to the Louisiana Stadium and Exposition
District and the New Orleans Exhibition Hall Authority, together
with applicable interest, pursuant to La. R.S. 47:1621(D) and in
accordance with this opinion.
REVERSED; TRIAL COURT JUDGMENT REINSTATED.
JOHNSON, C.J., concurs in result.
Page 1 of 1
05/03//2017
SUPREME COURT OF LOUISIANA
No. 2016-C-1663
JAZZ CASINO COMPANY, L.L.C.
VERSUS
CYNTHIA BRIDGES, SECRETARY,
LOUISIANA DEPARTMENT OF REVENUE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
WEIMER, Justice
The taxpayer in this matter seeks to compel the tax collector to perform
statutory duties in connection with a judgment in a proceeding under La. R.S.
47:1621, et seq., that ordered a refund of hotel occupancy taxes overpaid by the
taxpayer in several tax years. Finding that these statutory duties are ministerial, the
district court issued a writ of mandamus to the tax collector to compel payment of the
tax refund judgment. The court of appeal reversed and recalled the writ due to the
lack of evidence needed to obtain a writ of mandamus.1 Based on the ministerial
nature of the constitutional and statutory duties owed by the tax collector in
connection with the taxpayer’s refund judgment, the decision of the appellate court
is reversed, and the district court’s judgment is reinstated.
1
See La. C.C.P. art. 3862 (which requires proof that “the law provides no relief by ordinary means
or where the delay involved in obtaining ordinary relief may cause injustice”).
FACTUAL AND PROCEDURAL BACKGROUND
In connection with its operation of a land-based casino in New Orleans, Jazz
Casino Company, L.L.C. (Jazz) entered into contracts with various hotels for rooms
made available to casino patrons on a complimentary or discounted basis. Jazz was
required to pay for a specific number of rooms for the duration of the contract even
if the rooms were not used by Jazz patrons. As a result of these hotel room rentals,
hotel occupancy taxes were remitted to the Louisiana Department of Revenue
(Department). The taxes consisted of state general sales taxes and sales tax collected
on behalf of the following three entities: Louisiana Tourism Promotion District
(Tourism District), the Louisiana Stadium and Exposition District (Stadium District),
and the New Orleans Exhibition Hall Authority (Hall Authority).
In August 2004, Jazz filed three claims for refund with the Department,
alleging that Jazz overpaid hotel occupancy taxes for various hotel room rentals
between October 1, 1999, and June 30, 2004. Following the denial of its claims by
the Department, Jazz filed suit with the Louisiana Board of Tax Appeals (Board),
seeking a determination of overpaid taxes in accordance with La. R.S. 47:1621.
Under the terms of Jazz’s contracts with the local hotels, the rental of the hotel rooms
by Jazz was not found to be as a “transient guest.” As a consequence of that finding,
Jazz was exempt from the tax at issue. Subsequently, the parties jointly stipulated
that Jazz’s tax overpayments totaled $1,983,315.27 for the periods in question. Of
these overpayments, two percent was state general sales taxes. The remaining 98
percent was collected by the Department on behalf the Tourism District, Stadium
District, and Hall Authority.
2
On October 8, 2014, Jazz obtained judgment from the Board, which provided:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that [Jazz] overpaid hotel occupancy taxes during the Taxable Period in
the total amount, exclusive of interest, of $1,983,315.27;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Department shall refund to [Jazz] $1,983,315.27, together with
applicable statutory interest, pursuant to LSA-R.S. 47:1621(D)(1)[.]
This refund judgment was not appealed and is now final. See La. R.S. 47:1434 and
1438.
Subsequently, the Department remitted the portions of the judgment related to
state general sales taxes and the taxes collected on behalf of the Tourism District.
Therefore, only the taxes collected on behalf of the Stadium District and Hall
Authority remain at issue.
When the Department failed to timely refund the amounts overpaid to the
Stadium and Hall Authority in accordance with La. R.S. 47:1621, et seq., Jazz filed
a petition for a writ of mandamus with the district court to compel satisfaction of the
refund judgment. In its petition, Jazz alleged that the refund of the overpaid taxes is
a statutorily-mandated duty enforceable by the judiciary (citing La. R.S. 47:1437(B)
and 47:1621(D)(3)). Agreeing, the district court granted Jazz’s request by judgment
dated September 24, 2015, which provides:2
IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Alternative Writ of Mandamus issued by the Court on August
31, 2015 is made peremptory and permanent directing … Secretary of
the Department of Revenue, State of Louisiana to comply with the
Judgment issued by the Louisiana Board of Tax Appeals on October 8,
2014 and remit all remaining amounts that have not yet refunded,
2
Shortly after, the Department filed a motion with the Board to annul the refund judgment,
contending the Board was without subject matter jurisdiction to order a refund of taxes the
Department collected on behalf of the Stadium District and Hall Authority. The Board denied the
Department’s jurisdictional challenge, and the Board’s judgment denying the Department’s motion
to annul was affirmed on appeal. See Jazz Casino Co. v. Louisiana Department of Revenue,
16-0180 (La.App. 1 Cir. 2/7/17) (unpublished). The Department’s writ application is currently
pending before this court, Docket Number 17-C-0423.
3
$1,613,851.85, along with applicable statutory interest, within thirty-five
days of entry of this Judgment.
On appeal, the mandamus judgment was reversed and the writ of mandamus was
recalled, based on a finding that Jazz had failed to prove it was unable to obtain relief
by ordinary means or that the delay in obtaining such relief would cause injustice as
required by La. C.C.P. art. 3862. In the absence of such proof, the appellate court
found that Jazz failed to show it was entitled to mandamus relief, even if the duty of
the Department’s Secretary (Secretary) to refund overpaid taxes is a
non-discretionary, ministerial duty. Jazz Casino Co. v. Bridges, L.L.C., 15-1721
(La.App. 1 Cir. 6/6/16) (unpublished).
Jazz’s writ application to this court was granted to determine whether Jazz is
entitled to mandamus relief under the facts of this case. Jazz Casino Co. v. Bridges,
L.L.C., 16-1663 (La. 1/9/17), ___ So.3d ___.
DISCUSSION
The state constitution divides governmental power among separate legislative,
executive, and judicial branches and provides that no one branch shall exercise
powers belonging to the others. Hoag v. State, 04-0857, p. 4 (La. 12/1/04), 889
So.2d 1019, 1022 (citing La. Const., art. II, §§ 1 and 2). “This trichotomous
branching of authority furnishes the basis for the existence of an inherent judicial
power that the legislative and executive branches cannot abridge.” Id. “Likewise,
the judicial branch is prohibited from infringing upon the inherent powers of the
legislative and executive branches.” Id. Thus, when litigants seek to invoke the
power of the judiciary to compel another branch of government to perform or act, care
must be taken in examining whether the action is within the confines of the
judiciary’s constitutional authority. Id.
4
Here, Jazz sought the issuance of a writ of mandamus by the judiciary to
compel the Secretary, who is within the executive branch of government, to refund
the amounts Jazz had overpaid in hotel occupancy taxes to the Stadium District and
Hall Authority as ordered in the refund judgment. “Mandamus is a writ directing a
public officer … to perform” “a ministerial duty required by law.” La. C.C.P. arts.
3861 and 3863. In general terms, a writ of mandamus is an extraordinary remedy and
“may be issued in all cases where the law provides no relief by ordinary means or
where delay in obtaining ordinary relief may cause injustice.” La. C.C.P. art. 3862.
A “ministerial duty” is one “in which no element of discretion is left to the public
officer,” in other words, “a simple, definite duty, arising under conditions admitted
or proved to exist, and imposed by law.” Hoag, 04-0857 at 7, 889 So.2d at 1024. If
a public officer is vested with any element of discretion, mandamus will not lie.
See, e.g., Landry v. City of Erath, 628 So.2d 1178, 1180 (La.App. 3 Cir. 1993).
The legislature has statutorily provided for the payment and collection of taxes
pursuant to its constitutional authority. While having the power to tax,3 the
legislature must “provide a complete and adequate remedy for the prompt recovery
of an illegal tax paid by a taxpayer.” See La. Const. art. VII, § 3(A). In connection
with this constitutional obligation, the legislature created the Board of Tax Appeals
to “act as an appeal board to hear and decide ... disputes ... between a taxpayer and
the collector of revenue.” La. R.S. 47:1401.
3
See La. Const. art. VII, § 1.
5
Utilizing its authority under La. Const. art. XII, § 10(C)4 to “provide a
procedure for suits against the state, a state agency, or a political subdivision and
provide for the effect of a judgment,” the legislature has afforded taxpayers the
following three remedies to fulfill its obligation under La. Const. art. VII, § 3(A): (1)
the “Claims Against the State” procedure, (2) the “Payment Under Protest” procedure,
and (3) the “Overpayment Refund” procedure. St. Martin v. State, 09-0935, p. 4
(La. 12/1/09), 25 So.3d 736, 738. The procedures for these three remedies are set
forth in La. R.S. 47:1481, et seq.; La. R.S. 47:1576, et seq.; and La. R.S. 47:1621, et
seq., respectively. St. Martin, 09-0935 at p. 4, 25 So.3d at 738. Only the provisions
related to the first of these remedies, that is, the claims against the state procedure,
expressly requires an appropriation of funds by the legislature. See La. R.S. 47:14835
and 47:1484.6 Relative to the second and third remedies, the legislature enacted
4
In pertinent part, La. Const. art. XII, § 10(C) provides:
[The legislature] shall provide a procedure for suits against the state, a state agency,
or a political subdivision and provide for the effect of a judgment, but no public
property or public funds shall be subject to seizure. The legislature may provide that
such limitations, procedures, and effects of judgments shall be applicable to existing
as well as future claims.
5
Concerning payment of approved claims utilizing the claims against the state procedure, La. R.S.
47:1483 provides:
If the claim is approved and it should be an amount not exceeding one
thousand dollars, the chairman of the Board of Tax Appeals shall issue a warrant
upon the State Treasurer, for the amount for which the same is approved, stating in
said warrant the amount, purposes, and reasons for which the same is drawn. If said
claim shall amount to more than one thousand dollars, and is approved by said Board
of Tax Appeals, the chairman, giving all the facts and circumstances in connection
therewith, shall report the same to the next session of the legislature for its
consideration. Provided that where such claim accrues to more than one person, as
for example, the heirs or legatees of another, and the claim is determined by the
board to be properly due and owing, payment thereof to the party or parties asserting
the same before the board shall not be denied because of the failure or refusal of
others to join in and assert such claim, but in such event only the portion due such
claimant or claimants shall be paid and then only if the amount to be paid to each
such claimant does not exceed one thousand dollars. [Emphasis added.]
6
Concerning satisfaction of claims rendered in a claims against the state proceeding, La. R.S.
47:1484(A) provides:
6
procedures to authorize the return of overpaid taxes without requiring a legislative
appropriation.
When a taxpayer utilizes the payment under protest procedure (the second
remedy), the contested amount is to be escrowed “pending the outcome of the suit,
the petition, or an appeal therefrom.” See La. R.S. 47:1576(A)(2). In that type of
proceeding, payment to a prevailing taxpayer is governed by La. R.S. 47:1576(A)(3),
in which the legislature mandates that the refund of the taxpayer’s money being held
by the Secretary be made from the escrowed funds and “from funds derived from
current collections of the tax to be refunded.”7
Relative to the third remedy related to overpayment of refunds, as occurred in
this matter, La. R.S. 47:1621, et seq., set forth the procedure for refunding overpaid
taxes. Overpayment is defined as a “payment of tax ... when none was due, [or] the
excess of the amount of tax ... paid over the amount due.” La. R.S. 47:1621(A).
Unlike payments made under protest, these overpaid amounts are generally no longer
in the possession or reach of the Secretary when the action for refund is filed.
At each regular session of the legislature, an amount shall be appropriated,
… for the purpose of paying any and all claims that might be approved in accordance
with the provisions of this Part, and which may be drawn against for the purpose of
paying claims that might be duly approved by the Board of Tax Appeals. [Emphasis
added.]
7
La. R.S. 47:1576(A)(3) provides:
If the taxpayer prevails, the secretary shall refund the amount to the claimant,
with interest at the rate established pursuant to R.S. 13:4202(B) from the date the
funds were received by the Department of Revenue or the due date, determined
without regard to extensions, of the tax return, whichever is later, to the date of such
refund. Payments of interest authorized by this Section shall be made from funds
derived from current collections of the tax to be refunded.
To the extent that the taxpayer’s total recovery exceeds the escrowed amount, for example, when
interest is owed to the claimant, the legislature mandates that payment “be made from funds derived
from current collections of the tax to be refunded.” Id. This mandate is not tethered to a legislative
appropriation.
7
Therefore, the legislature devised a method for satisfying the Secretary’s obligation
to refund overpaid taxes.
Where there has been a determination that an overpayment has been made, La.
R.S. 47:1621(D)(1) directs that the refund of overpaid taxes “shall be made out of any
current collections of the particular tax which was overpaid.” The refund of
overpayments that occurred in multiple years may be refunded “incrementally” by the
Secretary; however, “[t]he number of increments shall not exceed the total number
of years the tax was overpaid.” La. R.S. 47:1621(D)(2). Within 45 days of the
finality of a refund judgment in a Section 1621 proceeding, “the secretary shall make
the refund.” See La. R.S. 47:1621(D)(3). For incremental refunds, “[t]he first
payment owed … shall be made within” 45 days of the judgment becoming final. La.
R.S. 47:1621(D)(3) and(4).
By enacting legislation to provide for “a complete and adequate remedy for the
prompt recovery of an illegal tax paid by a taxpayer,”8 the legislature has expressly
provided for the procedures in suits against the state, a state agency, and a political
subdivision and the effects of a judgment against them9 in the three types of tax
proceedings identified above. To be valid, such legislation must comport with due
process, equal protection, and the other constitutional guarantees. See Chamberlain
v. State, Dept. of Transp. and Development, 624 So.2d 874, 883 (La. 1993) (citing
Lee Hargrave, “Statutory” and “Hortatory” Provisions of the Louisiana Constitution
of 1974, 43 La. L. Rev. 647, 655-56 (1983)).
8
See La. Const. art. VII, § 3(A).
9
See La. Const. art. XII, § 10(C) (quoted supra n.4).
8
This case proceeded as a claim for refund of overpaid taxes under La. R.S.
47:1621.10 As previously indicated, the refund judgment in this case is final.
Accordingly, the Secretary is statutorily required to “promptly … make the refund”
of Jazz’s overpayments. See La. R.S. 47:1437(B). Such refund by the Secretary shall
take place or commence within 45 days of the judgment becoming final. See La. R.S.
47:1621(D)(3) & (4). The Secretary’s duties under these statutes are ministerial, as
the Secretary is not afforded any discretion relative to the return of taxes (determined
to have been overpaid) to a taxpayer in the overpayment refund process.11 See Hoag,
04-0857 at 7, 889 So.2d at 1024.
Tax laws enacted by the legislature to satisfy the requirements of La. Const. art.
VII, § 3(A) make the refund of overpaid taxes under La. R.S. 47:1621 mandatory.
See Tin, Inc. v. Washington Parish Sheriff’s Office, 12-2056, pp. 17-18 (La.
3/19/13), 112 So.3d 197, 209 (citing La. R.S. 47:1621(A)) (“The applicable statutes
set out the circumstances under which the tax collector must refund the taxpayer for
the overpayment of taxes.”). In this respect, this statutory scheme is similar to the
laws governing the expropriation of private property for public purposes. “The power
of expropriation or eminent domain is the right of the State or its subdivisions to
10
Although the statutory scheme for overpayment refunds provides for the potential for the
Secretary to ascribe a credit against the taxpayer’s other tax liabilities, the parties have not raised or
argued this issues and, instead, focus on the refund provisions in La. R.S. 47:1621. See La. R.S.
47:1622(A) (“Before refunding any overpayment, the secretary may first determine whether the
taxpayer who made the overpayment owes any other liability under any law administered by him.
If such be the case, the secretary may credit the overpayment against such liability and notify the
taxpayer of the action taken.”).
11
Furthermore, the legislature has retained the power to oversee the refund process by requiring
“[t]he secretary [to] report quarterly to the Joint Legislative Committee on the Budget the total
amount of refunds made each quarter and [to] specifically note when any refunds were not paid
within the time period provided for in Paragraph (D)(3) of this Section and the reason therefor.” La.
R.S. 47:1621(H). The enactment of such a reporting requirement supports a finding that the
legislature did not intend that the refund of taxes erroneously paid to the Department be conditioned
on a legislative appropriation. There would be no need for such a reporting requirement if a
legislative appropriation is required.
9
appropriate private property for public purposes, and is inherent in police power of
state.” Parish of St. Charles v. R.H. Creager, Inc., 10-180, p. 10 (La.App. 5 Cir.
12/14/10), 55 So.3d 884, 891. The constitutional provisions that afford a public body
the right “to exercise its police power compels the public body to pay just and fair
compensation and to afford constitutional due process rights to citizens affected.” Id.(citing, inter alia, La. Const. art. I, §§ 2 and 4(B)).
As urged by the Department, La. Const. art. XII, § 10(C) and La. R.S.
13:5109(B)(2) require an appropriation of funds by the legislature or the political
subdivision against which a judgment was rendered to make a judgment “exigible”
or “payable.”12 Accordingly, in the context of tort or contract-based claims,13 courts
have held that a judgment creditor of the state, a state agency, or a political
subdivision can only collect on a judgment by obtaining an appropriation of funds by
the legislature.14 See Hoag, 04-0857 at 5, 889 So.2d at 1023. However, the
mandatory nature of the overpayment refund, like the compensation that is required
12
“No judgment against the state, a state agency, or a political subdivision shall be exigible, payable,
or paid except from funds appropriated therefor by the legislature or by the political subdivision
against which the judgment is rendered.” La. Const. art. XII, § 10(C).
Pursuant to La. Const. art. XII, § 10(C), the legislature passed La. R.S. 13:5109(B)(2), which
provides:
Any judgment rendered in any suit filed against the state, a state agency, or
a political subdivision, or any compromise reached in favor of the plaintiff or
plaintiffs in any such suit shall be exigible, payable, and paid only out of funds
appropriated for that purpose by the legislature, if the suit was filed against the state
or a state agency, or out of funds appropriated for that purpose by the named political
subdivision, if the suit was filed against a political subdivision. [Emphasis added.]
13
Suits against the state are governed by La. Const. art. XII, § 10, which waives state immunity from
suit in contract and tort. See La. Const. art. XII, §10(A). This constitutional provision also
empowers the legislature to waive immunity in other instances by “authoriz[ing] other suits against
the state, a state agency, or a political subdivision.” La. Const. art. XII, § 10(B).
14
See Vogt v. Board of Com’rs of Orleans Levee Dist., 01-0089, p. 8 (La.App. 4 Cir. 3/27/02),
814 So.2d 648, 654 (citing Baudoin v. Acadia Parish Police Jury, 96-1288, pp. 5-6 (La.App. 3 Cir.
9/17/97), 702 So.2d 715, 718, and Foreman v. Vermilion Parish Police Jury, 336 So.2d 986(La.App. 3 Cir. 1976).
10
in expropriation cases,15 distinguishes an overpayment refund proceeding under La.
R.S. 47:1621, et seq., from cases requiring a legislative appropriation for payment of
a judgment, i.e., matters arising out of contract or tort.16 In exercising the legislative
authority to “determine when and how to pay” a judgment against the state, a state
agency, or political subdivision17 and to provide “a complete and adequate remedy for
the prompt recovery of an illegal tax paid by a taxpayer,”18 the legislature made the
refund of tax overpayments mandatory. Accordingly, the legislature afforded the
judiciary authority to issue a mandamus in a proceeding under La. R.S. 47:1621, et
seq., to compel enforcement of a final refund judgment.19, 20 In La. R.S. 47:1437(C),21
15
See Parish of St. Charles, 10-180 at 11, 55 So.3d at 891.
16
The appropriation of funds by a public body is discretionary and not ministerial. Vogt, 01-0089
at 8, 814 So.2d at 654 (citing De Laureal Engineers, Inc. v. St. Charles Parish Police Jury, 406
So.2d 770 (La.App. 4 Cir. 1981)). Because appropriation is discretionary, mandamus will not lie
to compel payment of a judgment by a state, a state agency, or political subdivision. See id.17
See Chamberlain, 624 So.2d at 882 (citing Hargrave, 43 La. L. Rev. at 654).
18
See La. Const. art. VII, § 3(A).
19
See Parish of St. Charles, 10-180 at 13, 55 So.3d at 892 (“the judiciary has the constitutional
authority to issue a mandamus in [an expropriation] matter [to compel payment of a final judgment]
if warranted.”). For another example in which mandamus was authorized, see Felix v. St. Paul Fire
and Marine Ins. Co., 477 So.2d 676, 678-82 (La. 1985) (a medical malpractice action in which this
court found that a writ of mandamus was appropriate to compel the insurance commissioner to
perform duties imposed by a statute that requires submission of a claim to the state treasurer on
receipt of a certified copy of final judgment in excess of $100,000 for purposed of enforcement
against the Patient’s Compensation Fund. The commissioner’s statutory duties were found to be
“purely ministerial.”).
20
This decision neither modifies nor erodes in any way the prior decisions of this court that require
a legislative appropriation to fund a judgment in matters related to tort or contract.
21
La. R.S. 47:1437(C) provides:
In addition to the remedies provided for in this Section, or in any other
applicable law, a final decision or judgment of the board may also be enforced in any
manner provided by law for a final judgment of a district court. A writ of
mandamus may also be issued to enforce provisions of Subsection B of this Section
relating to final judgments. [Emphasis added.]
La. R.S. 47:1437(C) was recently added by the legislature to clarify the enforcement remedies in an
overpayment refund proceeding. See 2016 La. Act 335, §§ 1 & 3, effective June 12, 2014. In
pertinent part, Section 3 of Act 335 provides:
11
the legislature expressly authorizes the use of mandamus relief to compel the
Secretary to “promptly … make the refund.” When a writ of mandamus is
specifically provided as a remedy by statute, the general rules for a mandamus action
do not apply; therefore, the petitioner is not required to show that relief is not
available by ordinary means or that the delay involved in obtaining ordinary relief
may cause injustice, as required by La. C.C.P. art. 3862. See Wallace C. Drennan,
Inc. v. St. Charles Parish, 14-89, pp. 5-6 (La.App. 5 Cir. 8/28/14), 164 So.3d 186,
190; Quality Design and Const., Inc. v. City of Gonzales, 13-0752, pp. 6-7
(La.App. 1 Cir. 3/11/14), 146 So.3d 567, 572. Accordingly, mandamus is an
appropriate remedy to compel the Secretary to the perform duties owed under La. R.S.
47:1621.
Because a claim for a refund of overpaid taxes involves the return of money
belonging to the taxpayer that is being held by the Department, a proceeding under
La. R.S. 47:1621, like an expropriation proceeding, implicates constitutional concerns
involving the deprivation of property. Even assuming that the “current collections
of the particular tax which was overpaid”22 actually used in the refund process are
public funds, the issuance of a writ of mandamus ordering the Secretary to use those
funds does not violate the constitutional prohibition of seizing public funds.23 The
state legislature has specifically authorized the procedure in La. R.S. 47:1621(D) to
provide for the satisfaction of a final judgment against the Secretary to effect the
The provisions of this Act amending R.S. … [47:]1437 are procedural and
interpretative and shall be effective on the effective date of Act No. 640 of the 2014
Regular Session of the Legislature [eff. June 12, 2014][.]
22
See La. R.S. 47:1621(D)(1).
23
See La. Const. art. XII, § 10(C) (“no public property or public funds shall be subject to seizure”).
Section 10(C) “is aimed at protecting the public fisc and seeks to avoid governmental priorities being
upset by the payment of substantial money judgments.” Chamberlain, 624 So.2d at 883 (quoting
Hargrave, 43 La. L. Rev. at 655).
12
return of money belonging to the taxpayer. Hence, the constitutional mandates
applicable in this case would be satisfied even if the “current collections” are public
funds. To hold otherwise would allow the Secretary to disregard mandatory
obligations under La. Const. art. VII, § 3(A) and La. R.S. 47:1621, under the guise
that a court-issued mandamus ordering such refund violates the separation of powers
doctrine. Such a result would render meaningless the constitutional guarantee under
La. Const. art. VII, § 3(A) of “a complete and adequate remedy for the prompt recover
of an illegal tax paid by a taxpayer,” as well as the statutory scheme authorizing the
recovery of overpaid taxes rightfully belonging to the taxpayer and the legislatively
mandated mechanism for enforcing a final judgment that authorizing the refund of
overpaid taxes.
CONCLUSION
Jazz is not attempting to enforce a judgment against a public body that arose
in tort or contract. Ultimately, at the heart of this dispute is whether the legislature
must appropriate funds to satisfy Jazz’s tax refund judgment. A distinguishing
characteristic of the funds sought by Jazz is that these funds belong to Jazz; whereas,
with a judgment in a tort or contract matter, the judgment creditor is attempting to
collect funds the public body legally collected which have become public funds.
Although collected from Jazz by the Secretary and held by the Stadium District and
Hall Authority according to the Board’s now-final judgment, the Secretary and these
entities were without legal authority to collect these taxes. To fulfill its constitutional
duty,24 the legislature provided a statutory scheme authorizing a refund to the
taxpayer of what are in effect the taxpayer’s funds.
24
See La. Const. art. VII, § 3(A).
13
Jazz’s refund judgment arose from an overpayment of $1,983,315.27 in hotel
occupancy taxes over several tax years, which is expressly governed by La. Const.
art. VII, § 3; La. R.S. 47:1621; and La. R.S. 47:1437(B) and (C), in addition to La.
Const. art. XII, § 10. Section 1621 mandates the use of current collections of the
hotel occupancy taxes for the Stadium District and Hall Authority to satisfy of Jazz’s
refund judgment. The Secretary’s duty under La. R.S. 47:1621 to refund overpaid
taxes is ministerial. The legislature has expressly authorized the use of a writ of
mandamus to compel the Secretary to fulfill the duties imposed by La. R.S.
47:1437(B) and 47:1621. See La. R.S. 47:1437(C). Therefore, the district court was
within its constitutional and statutory authority to issue a writ of mandamus to the
Secretary to compel compliance with the refund judgment.
DECREE
For the foregoing reasons, the decision of the appellate court is reversed, and
the judgment of the district court is reinstated to the extent that it compels the
Secretary of the Louisiana Department of Revenue to refund the amounts that Jazz
overpaid in hotel occupancy taxes to the Louisiana Stadium and Exposition District
and the New Orleans Exhibition Hall Authority, together with applicable interest,
pursuant to La. R.S. 47:1621(D) and in accordance with this opinion.
REVERSED; TRIAL COURT JUDGMENT REINSTATED.
14
05/03/2017
SUPREME COURT OF LOUISIANA
No. 2016-C-1663
JAZZ CASINO COMPANY, L.L.C.
VERSUS
CYNTHIA BRIDGES, SECRETARY,
LOUISIANA DEPARTMENT OF REVENUE
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF EAST BATON ROUGE
JOHNSON, Chief Justice, concurs in the result.
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