Burgess v. Gallery Model Homes, Inc

In Burgess v. Gallery Model Homes, Inc. 101 S.W.3d 550 (Tex. App.--Houston 1st Dist. 2003, pet. denied), the First Court of Appeals found the remedy for overpayment of sales tax was exclusively statutory and that a claimant had to exhaust administrative remedies before filing suit in district court. Id. at 557-58. In that case, a consumer sought refund of sales tax paid to a furniture company. The Tax Code provides that "a tax refund claim may be filed with the comptroller by the person who paid the tax or by the person's attorney, assignee, or other successor." TEX. TAX CODE ANN. 111.104(b) (Vernon 2001). The court found the Tax Code affords an exclusive remedy for an aggrieved taxpayer to obtain a refund for overcharged sales tax. Burgess, 101 S.W.3d at 554. The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law, but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects. Id. at 558.