Opinion
2011 CA 1235 R C/W 2011 CA 1236 R
07-03-2014
LIVINGSTON PARISH SCHOOL BOARD, THROUGH ITS SALES AND USE TAX DIVISION v. LOUISIANA MACHINERY COMPANY, L.L.C.
Drew M. Talbot Robert R. Ranier Frederick Mulhearn Baton Rouge, Louisiana Counsel for Plaintiff-Appellee Livingston Parish School Board, through its Sales and Use Tax Division Jesse R. Adams, III Andre B. Burvant Kathryn S. Friel Matthew A. Mantle New Orleans, Louisiana Counsel for Defendant-Appellant Louisiana Machinery Company, L.L.C.
NOT DESIGNATED FOR PUBLICATION
DA TE OF JUDGMENT:
ON APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT
NUMBER 130,691, DIV. E, PARISH OF LIVINGSTON
STATE OF LOUISIANA
HONORABLE ELIZABETH P. WOLFE, JUDGE
Drew M. Talbot
Robert R. Ranier
Frederick Mulhearn
Baton Rouge, Louisiana
Counsel for Plaintiff-Appellee
Livingston Parish School Board,
through its Sales and Use Tax
Division
Jesse R. Adams, III
Andre B. Burvant
Kathryn S. Friel
Matthew A. Mantle
New Orleans, Louisiana
Counsel for Defendant-Appellant
Louisiana Machinery Company, L.L.C.
BEFORE: WHIPPLE, KUHN, AND GUIDRY, JJ.
Disposition: JOEVT MOTION GRANTED; JUNE 8, 2012 DECISION VACATED; TRIAL COURT'S JUDGMENT REVERSED IN PART AND AFFIRMED IN PART; MATTER REMANDED.
KUHN, J.
Pursuant to a writ of certiorari granted on January 17, 2014, by the Louisiana Supreme Court, this case was remanded to this court with instructions to consider the matter in light of the recent opinions of Washington Parish Sheriffs Office v. Louisiana Machinery Co., LLC, 13-0583 (La. 10/15/13), 126 So.3d 1273, and Catahoula Parish School Bd. v. Louisiana Machinery Co., LLC, 12-2504 (La. 10/15/13), 124 So.3d 1065.
In Catahoula Parish School Bd., the supreme court affirmed the third circuit's reversal of the trial court's grant of partial summary judgment in favor of the Catahoula Parish School Board and the Catahoula Parish Police Jury, specifically ruling that the mandatory notice requirements of La. R.S. 47:337.51 were deficient and, therefore, not final; that the validity of the notices of assessments constituted an essential element of the tax collectors' claims rather than strictly a defense asserted by the companies; and that the defenses of the companies were timely filed. 124 So.3d at 1076. In Washington Parish Sheriffs Office, the supreme court reversed this court's decision for the reasons it had assigned in Catahoula Parish School Bd. Washington Parish Sheriffs Office, 126 So.3d at 1279.
Subsequent to the supreme court's remand, Livingston Parish School Board (the Tax Collector) and Louisiana Machinery Company, LLC (the Company) filed a joint motion requesting specified relief. Based on our review of the Louisiana Supreme Court's holdings in Catahoula Parish School Bd., 124 So.3d 1065 and Washington Parish Sheriffs Office, we grant that relief. Thus our earlier decision is vacated in its entirety. We reverse that portion of the trial court's grant of summary judgment in favor of the Tax Collector, since the Tax Collector's notice of assessment under La. R.S. 47:337.51 was deficient and, therefore, not final; and because sufficiency of notice was an essential element of its claim, the Tax Collector failed its burden of proving entitlement to the taxes it averred were due. That portion of the trial court's judgment that sustained a peremptory exception of the Company based on the objection of prescription as to the taxes due for calendar year 2006 is affirmed, since this defense by the Company was timely asserted. The matter is remanded for further proceedings. Appeal costs in the total amount of $1,856.50 are assessed one- half against the Livingston Parish School Board and one-half against Louisiana Machinery Company, LLC.
At the February 14, 2011 hearing before the trial court on, among other things, the Tax Collector's entitlement to partial summary judgment and the Company's exception of prescription, the Tax Collector conceded that the "2006 taxes were prescribed when the assessments were issued." On review, this court incorrectly concluded that the prescription defense relative to the 2006 taxes had been untimely asserted. Livingston Parish School Bd. v. Louisiana Machinery Co., L.L.C, 2011-1235 (La. App. 1st Cir. 6/8/12), 98 So.3d 407, 413-14. In light of the supreme court's holding that the deficient notice, which constituted an essential element of the Tax Collector's claim, precluded a finding of finality to the assessment issued by the Tax Collector, the prescription defense was timely asserted. See
JOINT MOTION GRANTED; JUNE 8, 2012 DECISION VACATED; TRIAL COURT'S JUDGMENT REVERSED IN PART AND AFFIRMED IN PART; MATTER REMANDED.
Catahoula Parish School Bd., 124 So.3d at 1076. Thus, given the Tax Collector's concession before the trial court, and again in the joint motion filed in this court, the trial court's ruling sustaining the exception insofar as the 2006 taxes is properly affirmed.