A person who, at the time of payment misinterprets the law to his detriment does not thereby gain a right of recovery; he must have paid as a result of compulsion." ( Reynolds v. City and County of San Francisco (1975) 53 Cal.App.3d 99, 101, 125 Cal.Rptr. 673.) There is no allegation here that Costco paid sales tax on Ensure under protest or as a result of any threatened enforcement action or other government coercion.
Other jurisdictions have also upheld protest at the time of payment on grounds of public policy. See Brandt v. Riley, 139 Cal.App. 250, 33 P.2d 845, 847 (1934) (statute requiring written protest is intended not only to furnish proof of involuntary payment but also to warn collector that the tax is claimed to be illegal); Reynolds v. City and County of San Francisco, 53 Cal.App.3d 99, 125 Cal. Rptr. 673, 674 (1975) (same). Courts have also stated that the requirement of a protest at the time of payment is designed to liberalize the repayment of illegally collected levies by eliminating the need to make the often difficult showing of duress. Principal Mut., 780 P.2d at 1030 ("The purpose of [AS 43.10.210] is to liberalize recoveries by creating rights where formally none existed.") (quoting Pacific Am. Fisheries, Inc., v. Mullaney, 105 F. Supp. 907, 909 (D.Alaska 1952)); Carpenter v. City of Ann Arbor, 35 Mich. App. 608, 192 N.W.2d 523, 524 (1971) ("The effect of the payment under protest statute is to make such a payment involuntary irrespective of any question of duress.").
To be permitted to [e.g.,] "); see also Republic Steel Corp. v. Maddox, 379 U.S. 650, 658 (1965) (describing the word "may" as "permissive" when interpreting a contract); Senior Tour Players 207 Mgmt. Co. v. Golftown 207 Hldg. Co., 853 A.2d 124, 127 n.5 (Del. Ch. 2004) (explaining that 6 Del. C. § 18-108, which stated that "a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager," is permissive and does not create a per se right to indemnification); Affrunti v. Zwirn, 892 F. Supp. 451, 459-60 (E.D.N.Y. 1995) (explaining that a statute providing that members of town zoning board "may" be compensated did not create a right to compensation), aff'd, 100 F.3d 943 (2d Cir. 1996); Reynolds v. City & Cty. of S.F., 53 Cal. App. 3d 99, 103 (1976) (explaining that statute providing that money other than taxes "may" be returned was permissive and did not create right of recovery); State ex rel. Scherer v. Madison Cty. Comm'rs, 527 N.W.2d 615, 620 (Neb. 1995) (explaining that statute providing that county board "may" remove snow from certain streets did not impose duty to do so). Menacker thus does not have any claim for Past-Due Amounts based on distributions.
at 78 & n.281 (citing Senior Tour Players 207 Mgmt. Co. LLC v. Golftown 207 Hldg. Co. LLC , 853 A.2d 124, 127 n.5 (Del. Ch. 2004) (explaining that 6 Del. C. § 18-108, which states that "a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager ...," is permissive and does not create a per se right to indemnification); then citing Reynolds v. City & Cty. of S.F. , 53 Cal.App.3d 99, 125 Cal. Rptr. 673, 673 (1976) (explaining that statute providing that money other than taxes "may" be returned was permissive and did not create right of recovery); then citing State ex rel. Scherer v. Madison Cty. Comm'rs , 247 Neb. 384, 527 N.W.2d 615, 620 (1995) (explaining that statute providing that county board "may" remove snow from certain streets did not impose duty to do so); and then citing Affrunti v. Zwirn , 892 F. Supp. 451, 459–60 (E.D.N.Y. 1995) (explaining that statute providing that members of town zoning board "may" be compensated did not create a right to compensation), aff'd , 100 F.3d 943 (2d Cir. 1996) ). Once a municipality exercises its right to use a county's assessment roll, then the county must comply with its statutory obligations.