Tax Alleged Illegally Collected Payment Under Protest
A wholly separate method of contesting tax liability is the payment of the taxes due under protest and a suit for refund of those taxes contended by the taxpayer to be "illegally collected." A.R.S. 42-204(C).
The utilization of this method has two prerequisites:
(1) the taxes must be due . . .;
(2) the taxpayer must pay these taxes "under protest." Maricopa County v. Arizona Citrus Land Co., 55 Ariz. 234, 100 P.2d 587 (1940).
Accord 113 Ariz. at 473, 556 P.2d at 1135 (quoting Maricopa County v. Chatwin, 17 Ariz. App. 576, 582, 499 P.2d 190, 196 (1972)).
The rationale for the extra-statutory requirement of payment under protest is traceable to the Territorial Supreme Court's decision in Gibson Abstract Co. v. Cochise County, 12 Ariz. 158, 100 P. 453 (1909).
There the taxpayer paid 1907 personal property taxes at $ 2.65 per $ 100, the rate that had been set for tax year 1906. See id. at 159, 100 P. at 453.
The Board of Supervisors thereafter set the 1907 rate at $ 2 per $ 100. See id.
The taxpayer brought an action for a refund. Because the taxpayer had paid the taxes voluntarily and without protest, the district court sustained Cochise County's general demurrer to its complaint. See id.
Affirming, the Territorial Supreme Court stated:
If . . . the appellant and its assignors had given bond, they could have had the benefit of the rate for the current year, instead of paying on the rate of the previous year.
The cost and additional emoluments going to the assessor are given as a reason why they did not do so; but, if that law is valid, it is a hardship imposed upon them by that law, and, our duties not being those of legislation, they cannot be relieved in this court from the compliance with a valid law, however drastic.
If the enforcement of that law would be in violation of their rights as accorded them by the constitution, and it was therefore null and void, they cannot expect relief from a payment made by them without protest, even if induced by a threat to inflict upon them the penalties of a void law, because the party threatening would, by reason of the invalidity of the law, be powerless to execute such threat. 12 Ariz. at 161, 100 P. at 454.
The Supreme Court of the new State of Arizona first adopted the payment-under-protest rule in 1919.
See Arizona Eastern Railroad Co. v. Graham County, 20 Ariz. 257, 179 P. 959 (1919).
The court held that a person who had paid an illegal tax under protest need not also present a verified demand for refund to the Board of Supervisors within six months as a condition precedent to bringing suit.
See id. at 258, 179 P. at 959. In the course of its discussion, the court stated concerning the predecessor of A.R.S. sections 42-11004 and 42-11005 :
This statute does not expressly require the taxpayer to protest at the time of his payment as a condition precedent to the maintenance of his action under said paragraph 4939, but, in order to remove such payments of taxes from the category of voluntary payments to the county, the taxpayer must, in some manner, unequivocally make known his purpose of paying the excess is to permit him to contest the legality of the excess in court. Otherwise his payment would be deemed voluntary, and no recovery could be had against the county. Gibson Abstract Co. v. Cochise County, 12 Ariz. 158, 100 P. 453.
Id. at 259, 170 P. at 960; accord Maricopa County v. Arizona Citrus Land Co., 55 Ariz. 234, 236, 100 P.2d 587, 588 (1940); Pima County v. Weddle, 54 Ariz. 525, 529, 97 P.2d 531, 538 (1939).
Although more recent decisions of the supreme court and this court since Arizona Citrus Land have alluded to the payment- under-protest requirement for A.R.S. section 42-11004 actions, none has actually applied any such requirement to turn away any taxpayer's refund action under that statute.
See State Comp. Fund v. Symington, 174 Ariz. 188, 192, 848 P.2d 273, 277 (1993); Salt River Project, 113 Ariz. at 473-74, 556 P.2d at 1135-36; State Tax Comm'n v. Superior Ct. (Maricopa County), 104 Ariz. 166, 168, 450 P.2d 103, 105 (1969); Tucson Elec. Power Co. v. Apache County, 185 Ariz. 5, 19, 912 P.2d 9, 23 (App. 1995).
Moreover, a frequently cited decision of our supreme court implicitly dispels any notion that the common law payment-under-protest requirement may constitute a prerequisite to the superior court's "jurisdiction" in tax refund actions, and indeed casts significant doubt on the continued viability of the payment-under-protest rule for any purpose. See Pittsburgh & Midway Coal Mining Co. v. Arizona Department of Revenue, 161 Ariz. 135, 776 P.2d 1061 (1989).
Pittsburgh concerned state use taxes and transaction privilege taxes, both of which formerly included express provisions conditioning refund actions on payment of taxes "under protest." See former A.R.S. 42-1339(B) and 42-1421(B) (1980).
In Pittsburgh, the taxpayers paid use taxes and transaction privilege taxes to ADOR without protest, believing at the time that no grounds for dispute existed.161 Ariz. at 136, 776 P.2d at 1062. for each taxpayer, circumstances later arose that called this belief into serious question.
See id. All taxpayers claimed refunds from ADOR. See id. Relying in part on former A.R.S. sections 42-1339(B) and 42-1421(B) and in part on the "general rule" that taxes voluntarily paid without protest cannot be recovered, ADOR denied their claims. See id.
The taxpayers achieved varying degrees of success in their separate superior court refund actions. See id. In the supreme court, however, all prevailed. See id. at 140, 776 P.2d at 1066.
The court interpreted the applicable statutes as functioning only within the administrative and judicial process for resolving actual disputes over tax liabilities. See id. at 138, 776 P.2d at 1064. the court held that outside that context, the statutory payment-under-protest requirements did not function as a condition precedent to the state's duty to refund taxes to which it was not entitled. See id.
Of the common law payment-under-protest requirement the Pittsburgh court stated:
Arizona concedes that there are exceptions to the general rule. for example, even though not paid "under protest," Arizona must refund taxes paid on obligations which are extinguished by prior payment. Maricopa County v. Leppla, 89 Ariz. 220, 223, 360 P.2d 227 (1961).
And, relying on Smotkin v. Peterson, 73 Ariz. 1, 5, 236 P.2d 743 (1951), and Bodco Building Corp v. Arizona State Tax Commission, 5 Ariz. App. 589, 591, 429 P.2d 476 (1967), Arizona concedes that it must refund taxes paid even when not marked "under protest" if at the time of the payment it had no "semblance of authority" to assess the tax.
We are of the view that these cases are to be decided by a comprehensive analysis of the relevant statutes rather than reliance on common law rules and exceptions which evolved in other contexts.
We acknowledge that Swift & Company v. State Tax Commission, 105 Ariz. 226, 233, 462 P.2d 775 (1969), is to the contrary. In reaching our conclusion in Swift, we relied on City of Phoenix v. Phoenix Newspapers, Inc., 100 Ariz. 189, 412 P.2d 693 (1966).
But City of Phoenix did not purport to examine the statutory schemes under which the use tax and the transaction privilege tax are imposed.
Instead, the decision was based upon the rule at common law that a voluntary payment of taxes without protest and not under duress cannot be recovered by a taxpayer.
In Swift, we also sought to distinguish Maricopa County v. Leppla, 89 Ariz. 220, 360 P.2d 227 (1961). In Leppla we allowed the recovery of taxes voluntarily paid and not "under protest" notwithstanding our acknowledgement of the common law rule at issue.
To reach our result, we characterized Leppla as a case in which a tax obligation did not exist after the original payment by the taxpayer. We do not think Leppla can be so easily distinguished. No tax obligation existed in City of Phoenix, and no tax obligation existed in Swift & Company.
We think that neither City of Phoenix nor Swift & Company can survive a careful analysis of the relevant transaction privilege tax and use tax statutes.
Thus, to the extent that Swift & Company and City of Phoenix suggest a contrary result, they are no longer to be followed.
An honorable government would not keep taxes to which it is not entitled, and the legislative scheme supports that result.161 Ariz. at 137, 139, 776 P.2d at 1063, 1065.
We derive several principles from Pittsburgh. First, whatever the legal status of the common law payment-under-protest "requirement" for tax refund actions may otherwise be, it is plainly not "jurisdictional." As the Pittsburgh court noted, the "general rule" is subject to two exceptions. 161 Ariz. at 137, 776 P.2d at 1063.
One of these exceptions, that the requirement does not operate when the tax obligation on which the taxpayer seeks a refund had already been paid, is based on facts that may be disputed and subject to resolution by trial. See id.
The supreme court's recognition of this exception necessarily entails recognition that the superior court has jurisdiction to determine the facts on which the exception depends.
The court has thus treated the "requirement" of payment under protest as one that may affect the availability of relief in a refund action, but not the superior court's jurisdiction to entertain it. Cf. Hill v. City of Phoenix, 193 Ariz. 570, 572, P8, 975 P.2d 700, 702 (1999) (cautioning against construing the concept of "jurisdiction" too narrowly).
Second, the supreme court's focus in Pittsburgh was solidly on the structure and intent of the governing statutes, not on the common law. 161 Ariz. at 138, 776 P.2d at 1064.
Indeed, Pittsburgh criticized Swift & Co.v. State Tax Commission, 105 Ariz. 226, 462 P.2d 775 (1969), in large part because it had relied on City of Phoenix v. Phoenix Newspapers, Inc., 100 Ariz. 189, 412 P.2d 693 (1966), which the Pittsburgh court said had based its rationale not on the statutes, but on "the rule at common law that a voluntary payment of taxes without protest and not under duress cannot be recovered by a taxpayer." 161 Ariz. at 139, 776 P.2d at 1065.
Neither Swift & Co. nor City of Phoenix v. Phoenix Newspapers survived Pittsburgh and the "rule at common law" also ended. See id.