Class Actions and the Refund of Unconstitutional Taxes. Revenue Laws Study Committee Trina Griffin, Research Division April 2, 2008

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1 Class Actions and the Refund of Unconstitutional Taxes Revenue Laws Study Committee Trina Griffin, Research Division April 2, 2008

2 United States Supreme Court North Carolina Supreme Court Refunds of Unconstitutional Taxes NC Statutes Sovereign Immunity Class Action Rules

3 U.S. Supreme Court Leading case: McKesson Corp (1990) Held: State must provide meaningful backward-looking relief to rectify any unconstitutional deprivation. States have been given wide latitude in the manner in which they may provide a remedy. No bright-line test.

4 Sovereign Immunity The State is immune from suit unless it expressly consents to be sued. It is for the General Assembly to determine when and under what circumstances the State may be sued.

5 NC Statute (Pre-2008) Protest statute (G.S ) required taxpayers to: Pay the tax first. File a claim for a refund. Wait 90 days before filing suit.

6 Class Actions (NCRCP 23) The requirements for a class action are: 1. The existence of a class 2. Adequacy of representation 3. Numerosity Durham Land Owners (2006) - NC Court of Appeals held that failure of Rule 23 to specifically mention the State does not mean that all class actions are barred by sovereign immunity.

7 NC Judicial Interpretation Bailey I None of the plaintiffs had complied with G.S Prior to 1998 Swanson Plaintiffs filed a class demand letter. Both cases were dismissed. The NC Supreme Court upheld both dismissals because the procedural requirements of G.S had not been met.

8 NC Judicial Interpretation After 1998 Bailey II Class consisted of protesters, but Court extended refunds to all State and local retirees who had vested as of Aug. 12, 1989, even for those who had not filed a claim. Smith Court held that nonprotesters were entitled to relief, but under the uniformity provision of the NC Constitution. Dunn Court upheld class certification where class includes nonprotesters of a different tax type and for different tax years than the named plaintiffs.

9 Reform Tax Appeals (Eff. 1/1/08) SB 242 completely revised administrative and judicial review of disputed tax matters. Taxpayers must exhaust administrative remedy before going to court. Specific statute authorizing civil action for constitutional challenges. Silent on class actions?

10 The Problem Lack of clarity No procedures or guidelines Unpredictability Vulnerability to lawsuits Of the 40 states that have an exemption for interest income derived from in-state municipal bonds, NC was one of only 3 states targeted with a class action lawsuit.

11 What Do the Feds Do? Tax Class Actions PERMITTED Court of Federal Claims U.S. District Court Every taxpayer in the class MUST file a claim for refund prior to bringing suit. Tax Class Actions PROHIBITED United States Tax Court

12 What Do Other States Do? By Statute Few states specifically address tax class actions by statute. PERMITTED by statute: Indiana Oregon Texas Montana Utah PROHIBITED by statute: Georgia South Carolina

13 What Do Other States Do? By Judicial Interpretation Question #1: Are tax class actions permissible generally? 2 schools of thought: 1. YES - General class action rules apply. If common legal questions are involved and the relief sought is appropriate for all members of the class, a class action is appropriate. 2. NO: : Omission of specific authorization for tax class actions means they re not available under principles of sovereign immunity. Also, each taxpayer s s right to refund is independent of the refund rights of other taxpayers.

14 What Do Other States Do? By Judicial Interpretation Question #2: If class actions are permissible, how is class membership determined? 2 schools of thought: 1. Class demand The filing of a claim by one taxpayer on behalf of other members of the class is sufficient as long as information is provided sufficient to ascertain other class members. 2. Individual demands: - Each individual taxpayer must file a claim for refund in order to become a member of the class.

15 Tax Class Actions Permitted By Judicial Interpretation YES: Alabama, Florida, Kentucky, North Carolina, Arizona, Arkansas, Colorado, California, Idaho, Alaska, D.C., Kansas, New York, Vermont NO : Nebraska, Ohio, Pennsylvania, Maryland, Missouri, South Dakota, Massachusetts, Washington

16 Unclear? 22 states: Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Rhode Island, Tennessee, Virginia, West Virginia, Wisconsin, Wyoming In many states, attempted class actions have been dismissed for failure to exhaust administrative remedies. Probably permitted if statutory procedures followed.

17 #1 Status quo; law by judicial decree Options #3 Expressly allow tax class actions with certain procedures #2 Prohibit tax class actions. Eligible to join class if return filed and SOL has not expired Must file some notice/claim with Dept. Expedited review procedures No unnecessary hearing Filing of a complaint tolls SOL for other potential class members

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