In RE PETITION OF HAMM v. State ( 1959 )

Petitioners appeal from the clerk's disallowance of their taxation of costs and disbursements. Since the state in levying and collecting taxes acts in its sovereign capacity, costs and disbursements cannot be taxed against it except as provided by law.⁸

If petitioners are entitled to an allowance of their costs and disbursements herein, the legal basis for such allowance must be found in M.S.A. 278.07. This section, which is applicable to tax contests, expressly provides for a taxation of costs and disbursements in only three different situations and each of these situations contemplates the entry of a judgment. Under the second sentence of § 278.07, we have the first situation, which arises when the contesting taxpayer is wholly unsuccessful and judgment is entered against him for the full amount of the tax levy. In that case costs and disbursements shall be taxed against him. The second situation arises under the third sentence of § 278.07 when the taxpayer is partially successful in his contest so that judgment for delinquent taxes is entered against him for less than the full amount of the tax levy. In that case the court, in itsdiscretion, may award taxpayer his costs and disbursements. Obviously neither of the two foregoing situations apply in the instant case.

The third situation permitting an allowance of costs and disbursements arises under the final sentence of § 278.07, which reads as follows:

"* * * If there be no judgment for taxes, a judgment may be entered determining the right of the parties and for the costs and disbursements as taxed and allowed." (Italics supplied.)

Clearly, the final sentence comes into operation only where the contesting taxpayer has established that no judgment for delinquent taxes may be entered against him. In that case, and in that case only, a judgment may be entered determining the rights of the parties and for the costs and disbursements as taxed and allowed. We do not have that situation in the instant case. Petitioners have not prevailed to the extent that they have no liability for taxes so that no judgment for taxes may be entered. The question of whether a judgment may be entered for taxes has been deferred pending the outcome of the new trial granted to petitioners. In the meantime, no judgment may be entered for a determination of the rights of the parties. In the absence of an entry of judgment or of a present right to enter judgment, there can be no allowance of costs and disbursements pursuant to § 278.07.

The clerk's disallowance of taxation of costs and disbursements is affirmed.

⁸ State, by Peterson, v. Bentley, 224 Minn. 244,28 N.W.2d 179, 770.