IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI APPEAL FROM THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI JUSTIN BANKSTON D/BI A BANKSTON FENCE VS. MISSISSIPPI DEPARTMENT OF REVENUE APPELLANT NO.: 2011-CA-00742 APPELLEE APPEAL FROM THE CHANCERY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI BRIEF FOR APPELLEE ORAL ARGUMENT NOT REQUESTED GARY W. STRINGER (MSB_ JAMES L. POWELL (MSB~ MISSISSIPPI DEPARTMENT OF REVENUE Post Office Box 22828 Jackson,MS 39225-2828 Telephone: 601-923-7412 Facsimile: 601-923-7423 Email: gary.stringer@dor.ms.gov jim. powell@dor.ms.gov ATTORNEYS FOR APPELLEE

TABLE OF CONTENTS TABLE OF AUTHORITIES... i STATEMENT REGARDING ORAL ARGUMENT... v BRIEF FOR APPELLEE... 1 APPELLEE'S STATEMENT OF ISSUES... 1 STATEMENT OF THE CASE... 3 STATEMENT OF FACTS... 5 SUMMARY OF ARGUMENT..... 12 ARGUMENT... 14 1. The action brought by Bankston in the Court below was... 14 in fact an attempt to appeal from the order of the three member Mississippi State Tax Commission and obtain a review of the decision of the three member Mississippi State Tax Commission that Bankston's attempted appeal to it from the Review Board was untimely. II. The Chancery Court below was correct when it found... 16 that Bankston's suit, being an action brought under Miss. Code Ann. 27-77-7(Rev. 2005), should be dismissed due to Bankston's failure to post a bond or pay the tax before filing his appeal. III. Bankston's reliance on Miss. Code Ann. 11-13-11..... 20 (Rev.2004) to support his Petition is contrary the allegations and relief requested in his Petition. IV. Assuming that Bankston's Petition is sufficient to... 25 assert jurisdiction of his action under Miss. Code Ann. 11-13-11 (Rev. 2004), this action would still be barred due to the availability of an adequate remedy at law under Miss. Code Ann. 27-77-7(Rev. 2005).

V. Bankston's contention that a tax is being collected... 29 without authority of law due to the method by which the three member State Tax Commission computed the thirty (30) day period for filing an appeal from the order of the Review Board to the Commission does not constitute the levy or collection of a tax without authority of law. VI. Bankston's contention that Miss. Code Ann. 11-13-13....31 (Rev. 2004) has been superseded by Miss. R. Civ. P. 65 and in operable is in error and contrary to law in this State that continues to require the filing of bonds when required by statute. Conclusion... 33 Certificate of Service... 35 I 11

TABLE OF AUTHORITIES Cases: Page(s) Akins v. Mississippi Department of Revenue, 70 So. 3d 204 (Miss. 2011)... 18-19 Bertucci v. Mississippi Dep't ofcorrs., 597 So.2d 643 (Miss. 1992)... 33 Fondren v. State Tax Commission, 350 So. 2d 1329 (Miss. 1977)... 13,24,28-29 Jackson State University v. Upsilon Epsilon Chapter of Omega Psi Phi Fraternity, Inc., 952 So.2d 184 (Miss. 2008)... 33 Lewis v. Mass Appraisal Services, Inc., 396 So.2d35 (Miss. 1981)... 13,24 Marx v. Truck Renting and Leasing Ass 'n, Inc., 520 So. 2d 1333 (Miss. 1988)... 22-24,27-28 Mississippi State Personnel Board v. Armstrong, 454 So. 2d 912 (Miss. 1984)... 33 Riley v. Town of Lambert, 856 So. 2d 721 (Miss. 2003)... 33 Stone v. Kerr, 194 Miss. 646, 10 So. 2d, 845 (1942)... 13,24,28 Yazoo & M V.R. Co. v. Adams, 73 Miss. 648,19 So. 91 (1895)... 33 111

Statutes: Page(s) Miss. Code Ann. 1-3-67(Rev. 2004)... 6 Miss. Code Ann. 11-13-II(Rev. 2004)... v, 1, 11-13,20-24,31-34 Miss. Code Ann. 11-13-13 (Rev. 2004)... 1, II, 31, 32, 33 Miss. Code Ann. 2S-43-1.101 et seg. (Rev. 2010)... 9,31 Miss. Code Ann. 2S-43-1.106 (Rev. 2010)... 7 Miss. Code Ann. 2S-43-1.106(3)(a)(Rev. 2010)... 7 Miss. Code Ann. 2S-43-1.106(3)(b)(Rev. 2010)... 7, 8, 9 Miss. Code Ann. 2S-43-1.107(Rev. 2010)... 8 Miss. Code Ann. 27-65-37 (Rev. 200S)... 29 Miss. Code Ann. 27-77-S (Rev. 200S)... v, 7,18-20 Miss. Code Ann. 27-77-S( 4)(Rev. 200S)... 6-8, 12, 21,24-2S,31 Miss. Code Ann. 27-77-7(Rev. 200S)... v, 1,4,11-30,34 Miss. Code Ann. 27-77-7(2)(Rev. 200S)... IS Miss. Code Ann. 27-77-7(3)(Rev. 200S)... 12, 16-17,19,34 Miss. Laws: 1991 Miss. Laws Ch. S73... 32 200S Miss. Laws Ch. 304... 8 200S Miss. Laws Ch. 499... 8 2009 Miss. Laws Ch. 492... "..., IS IV

STATEMENT REGARDING ORAL ARGUMENT The Mississippi Department of Revenue, Appellee, herein, submits that oral argument in this appeal is unnecessary. The primary issue in this appeal involve a veiled attempt to disguise an action seeking a review of the decision of the three member Mississippi State Tax Commission as an action under Miss. Code Ann. 11-13-11 (Rev. 2004) instead of under statutory process provided under Miss. Code Ann. 27-77-7 (Rev. 2005) for appeals from decision from the three member Mississippi State Tax Commission. Alternatively, the issues also involve the clearly established principle that equity jurisdiction, including that statutorily memorialized under Miss. Code Ann. 11-13-11 (Rev. 2004), does not arise where there is an adequate remedy of law such as the simple statutory appeal process under Miss. Code Ann. 27-77-5 (Rev. 2005) and Miss. Code Ann. 27-77-7 (Rev. 2005). This Court would not benefit from oral argument in this case which involves application of a clear legal principle to a clear statutory process. Oral argument requested on the cover of the Opening Brief of Appellant should be denied. v

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI JUSTIN BANKSTON D/B/A BANKSTON FENCE VS. MISSISSIPPI DEPARTMENT OF REVENUE APPELLANT NO.: 2011-CA-00742 APPELLEE BRIEF FOR APPELLEE COMES NOW, the Mississippi Department of Revenue, the Appellee herein, formerly the Mississippi State Tax Commission l (hereinafter referred to as the "Department") and submits the following as the Brief For Appellee. APPELLEE'S STATEMENT OF ISSUES Not surprising, in his statement of issues, the Appellant mischaracterizes the type of action that he brought, misconstrues the decision of the Chancellor below, and thereby misstates the issues in this appeal. The correct issues to be addressed in this appeal are as follows: I Effective July I, 2010, the Mississippi State Tax Commission was reorganized into the Mississippi Department of Revenue and the Mississippi Board of Tax Appeals. See 2009 Miss. Laws Ch. 492. The present action involves an appeal from the decision of the Mississippi State Tax Commission, dated June I, 20 I 0, concerning as Assessment of Sales Taxes dated June 25, 2008. (Appellant's Record Excerpts, Tab 12 & 3 & Record, pp. 13 & 79.) When referring to the three (3) member Mississippi State Tax Commission that determined that the appeal to it by Justin Bankston from the Review Board of the Department was untimely, this Brief will refer to the "three (3) member Mississippi State Tax Commission" or "Commission". Due to the inclusion of almost all of the Clerk's Papers in Appellant's Record Excerpts, the Department is not submitting a separate Record Excerpts and all subsequent references to documents in Appellant's Record Excerpts will be preceded by the abbreviation "R. E." followed by the Tab in which the document is located. All subsequent references to the Record in this appeal will be by the abbreviation "R." followed by the page number(s) to which reference is being made. 1

1. Whether the Chancellor below was correct in finding that in this action, Justin Bankston, the Appellant ("Bankston"), was not seeking "to restrain the collection of taxes levied or attempted to be collected without authority of law" under Miss. Code Ann. 11-13-11 (Rev. 2004), but was seeking "to appeal an assessment of tax to which he objects" by attempting an appeal under Miss. Code Ann. 27-77-7 (Rev. 2005) without the statutorily mandated bond or payment to obtain a review of the decision of the three member Mississippi State Tax Commission that his appeal from the Review Board to the three member Mississippi State Tax Commission was untimely? 2. Whether the Chancellor below was correct in finding that, Bankston had an adequate remedy at law under Miss. Code Ann. 27-77-7 (Rev. 2005) thereby barring any equitable relief, including an action under Miss. Code Ann. 11-13-11 (Rev. 2004)? 3. Whether the Chancellor below was correct in finding that even if "Bankston's pursuit to be legitimately filed under 11-13-11, the petition for relief would still be denied for failure to post security or a bond under Miss. Code Ann. 11-13-13"? 2

STATEMENT OF THE CASE In its recitation of the course of proceedings in this appeal, Bankston contains several mischaracterizations of the proceedings below. In two (2) places in his explanation of what happened below, Bankston states or suggests that the action filed in Chancery Court was to seek an "injunction to prevent the Department of Revenue from collecting the tax". See Opening Brief of Appellant, p. 7. Nowhere in the Petition filed below did Bankston request the Chancery Court to enjoin the Commission from collecting a tax or from any other action. (R.E. Tab 2 & R. 1-12.) The words "enjoin" and "injunction" are not even contained in the Petition. (R.E. Tab 2 & R. 1-12.) In the prayer of relief in the Petition, what Bankston is seeking is "review and relief from the Order of the MSTC [three member Mississippi State Tax Commission], dated June 1, 2010, dismissing his appeal from the Order of the Board of Review as untimely filed" and for an order "directing the MSTC [three member Mississippi State Tax Commission] or its successor, the Board of Tax Appeals, to consider the merits of Mr. Bankston's appeal of the Board of Review's Order." (R.E. Tab 2 & R. 10-11.) In essence, what the Petition was seeking was a review of the Order of the three member Mississippi State Tax Commission; upon such review, a determination that the three member Mississippi State Tax Commission was wrong in its determination that Bankston '5 appeal to it was untimely; and an Order 3

remanding the matter back to the three member Mississippi State Tax Commission, or its successor, the Mississippi Board of Tax Appeals, for a hearing on the merits of his appeal to that body. Contrary to the assertion of Bankston, the Chancery Court below was correct when it found that it "must consider Petitioner's complaint for that which it truly is, an administrative appeal from a MSTC Order filed under Miss. Code Ann. 27-77-7." (R.E. Tab 16 & R. 129.) Another misstatement in Bankston's description of the course of the proceedings or at least a failure to distinguish between the MSTC as an agency and the three member Mississippi State Tax Commission is the allegation that "[t]he MSTC determined that Mr. Bankston's was not timely filed" prior to the hearing before the three member Mississippi State Tax Commission. See Opening Brief of Appellant, p. 7. In actuality, the initial determination that Bankston's appeal was untimely filed was made by the Commission Secretary of the three member Mississippi State Tax Commission that sent Bankston's attorney a letter date October 1, 2009, advising him that the appeal was untimely, but his client could "contest this conclusion" by requesting "a hearing on the question of the timeliness of his appeal." (R. 55-56.) It was only after this request was made that a hearing was set up before the three member Mississippi State Tax Commission on this question of timeliness. (R.E. Tabs 9 & 12 & R. 57-58 & 79-80). 4

Bankston also misstates the basis of the Motion to Dismiss filed by the Department in this matter. Not only was it based on Miss. R. Civ. P. 12(b)(l), but also on Miss. R. Civ. P. 12(b)(6) & (7) and for dismissal of Bankston Fence, Inc. as a party under Miss. R. Civ. P. 21. (R.E. Tab 14 & R. 95-108.) It is true that the Chancery Court below did rule only on Motion to Dismiss as it related to the Department's contention under Miss. R. Civ. P. 12(b)(l) that this Court lacked jurisdiction over the subject matter of this action. (R.E. Tab 16 & R. 126-131.) With the Chancery Court's determination that it lacked jurisdiction over the action filed by Bankston, there was no need to consider the other arguments. STATEMENT OF FACTS In the Statement of Facts section of the Opening Brief of the Appellant, Bankston is generally correct as it relates to a fact. Unfortunately, Bankston also uses this section of the brief to inappropriately argue legal interpretations of the statutes that was the basis for his argument that his appeal to the three member Mississippi State Tax Commission was timely which is the argument that the Chancery Court below found that it did not have jurisdiction to hear and did not hear or decide. Besides not involving the facts of the appeal, such consideration of, I an issue not decided by the Court below is beyond the review in this appeal. Even though consideration of these arguments disguised as facts IS inappropriate in the context of this appeal, out of an abundance of caution, the 5

Department denies the allegations set out at the bottom of page 8 and continuing through page 10 of the Opening Brief of Appellant regarding Bankston's argument that his appeal was timely under Miss. Code Ann. 27-77-5(4)(Rev. 2005) by the application of certain provision of the Mississippi Administrative Procedures Law, Miss. Code Ann. 25-43-1.101 et seq. Contrary to the Bankston's assertion, there is guidance as to how the time period set out in Miss. Code Ann. 27-77- 5(4)(Rev. 2005) is to be computed. Miss. Code Ann. 1-3-67 (Rev. 2005) provides: When process shall be required to be served or notice given any number of days, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday or a legal holiday, or any other day when the courthouse or the clerk's office is in fact closed, whether with or without legal authority, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, a legal holiday, or any other day when the courthouse or the clerk's office is closed. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. In the appeal from the Review Board to the three member Mississippi State Tax Commission under Miss. Code Ann. 27-77-5(4)(Rev. 2005), the day of the act from the which the thirty (30) day period began to run was the date of the order of the Review Board. The notice that is to be given was this thirty (30) day period is the filing of written appeal with the Commission Secretary. See Miss. Code Ann. 27-77-5(4)(Rev. 2005). There is clearly a rule of computation to time that 6

is applicable to Miss. Code Ann. 27-77-5, therefore there was not need to resort to the rule of computation of time contained in Miss. Code Ann. 25-43-1.106 (Rev. 2010). Even if the method of computation of time under Miss. Code Ann. 25-43- 1.l06(3)(a)(Rev. 2010) is applicable, the results would not be any different from that under Miss. Code Ann. 1-3-67 (Rev. 2005). The methods for computation are essentially the same. The real question as to Bankston's argument as to timeliness is the application of Miss. Code Ann. 25-43-1.106(3)(b)(Rev. 2005) and the three (3) additional days added for mailing. This subsection however is clearly inapplicable to the time computation under Miss. Code Ann. 27-7- 5(4)(Rev. 2005). Miss. Code Ann. 25-43-1.106(3)(a)(Rev. 2005) provides that it and its three (3) additional days only applies to "[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice, order, pleading, motion or other paper upon him." Under Miss. Code Ann. 27-77-5(4)(Rev.2005), the time period from filing an appeal with the three member Mississippi State Tax Commission started "from the date of the order of the board of review being contested"; not from the service of the order. Under the plain wording of Miss. Code Ann. 25-43-1.106(3)(b)(Rev. 2005) and Miss. Code Ann. 27-77-5(4)(Rev. 2005), the additional three (3) day 7

(R.E. Tab 2, 1-12) A fair reading of the praying ofthe Petition indicates that what Bankston is really seeking is a"review and relief from the Order of the MSTC [three member Mississippi State Tax Commission], dated June 1,2010, dismissing his appeal from the Order of the Board of Review as untimely filed" and for an order "directing the MSTC [three member Mississippi State Tax Commission] or its successor, the Board of Tax Appeals, to consider the merits of Mr. Bankston's appeal of the Board of Review's Order." (R.E. Tab 2 & R. 10-11.) In his statement of facts, Bankston also mischaracterizes the finding of the Chancery Court below as to his action under Miss. Code Ann. 11-13-II(Rev. 2004). It is true that the Chancery Court did find that it did not have jurisdiction to grant injunctive relief because of an adequate remedy of law under Miss. Code Ann. 27-77-7(Rev. 2005). (R.E. Tab 16 & R. 128-129.) However, as to Bankston's claim under Miss. Code Ann. 11-13-II(Rev. 2004), the Court further found that Bankston had not brought an action under Miss. Code Ann. 11-13-11, but his action was actually an attempt to appeal from the order of the three member Mississippi State Tax Commission to Court under Miss. Code Ann. 27-77-7. (R.E. Tab 16 & R. 129.)4 The Chancery Court then analysis Bankston's action 4 After finding that Bankston's action was an appeal from "an assessment to which he objects", the Court did indicate that even if the action had been brought under Miss. Code Ann. 11-13-11 (Rev. 2004), "relief would still be denied for failure to post security of a bond under Miss. Code Ann. 11-13-13". (R.E. 16 & R. 129.) These findings concerning Miss. Code Ann. 11-13-11(Rev. 2004) and 11-13-13 (Rev. 2004) do not however change the fact that the decision of the Chancery Court below was based on the conclusion that Bankston's complaint was an appeal from an order of the three member Mississippi State Tax Commission under Miss. Code Ann. 27-77-7 (Rev. 2005). (R.E. Tab 16 & R. 129.) 11

under Miss. Code Ann. 27-77-7(Rev. 2005) and found it lacking due to the failure of Bankston to file the appropriate bond required under Miss. Code Ann. 27-77-7(3)(Rev.2005). (R.E. Tab 16&R. 130-131.) SUMMARY OF ARGUMENT The Department submits that the Chancery Court below was correct in its ruling in this matter. The action brought be Bankston was in effect an appeal from the Order of the three member Mississippi State Tax Commission to Court under Miss. Code Ann. 27-77-7(Rev. 2005). Bankston failed to properly file such appeal by failing to post a bond in double the amount in controversy or pay the tax under protest before filing his Petition in court. See Miss. Code Ann. 27-77- 7(3)(Rev. 2005). By such failure, the Chancery Court did not have jurisdiction to consider Bankston's appeal and same was properly dismissed. Bankston's reliance on Miss. Code Ann. 11-13-11(Rev. 2004) is misplaced since based on the allegations of the Petition filed, the action brought by Bankston was not an action seeking an injunction of collection of a tax without authority of law, but an action seeking a review of the Order of the three member Mississippi State Tax Commission finding that Bankston's appeal to it had been untimely. It was clearly the type of action that a taxpayer would bring under Miss. Code Ann. 27-77-7(Rev. 2005). The language of Miss. Code Ann. 27-77-5(4) indicating that in regard to an untimely appeal, the only issue that the Commission 12

or a Court could address would be this issue of timeliness clearly indicated that Bankston's complaint as to the computation of the thirty (30) day time period is exactly the type of issue that should be appealed under Miss. Code Ann. 27-77- 7(Rev. 2005). Even if Bankston's action had been brought under Miss. Code Ann. 11-13-11(Rev. 2004), the Chancery Court below still would not have jurisdiction to consider same since the judicial appeal process provided under Miss. Code Ann. 27-77-7(Rev. 2005) constituted an adequate remedy at law to address his complaint concerning the dismissal of his appeal to the three member Mississippi State Tax Commission as untimely. An action under Miss. Code Ann. 11-13- II(Rev. 2005) does not arise if the taxpayer has an adequate remedy at law. Stone v. Kerr, 194 Miss. 646, 10 So. 2d, 845 (1942), Fondren v. State Tax Commission, 350 So. 2d 1329, 1333 (Miss. 1977), L.;;wis v. Mass Appraisal Services, Inc., 396 So. 2d 35, 38-39 (Miss. 1981). The decision of the Chancery Court below that it did not have jurisdiction to consider Bankston's action as an action for a judicial review of the Order of the three member Mississippi State Tax Commission brought under Miss. Code Ann. 27-77-7(Rev. 2005) due to Bankston's failure to post a bond or pay the tax under protest is COlTect and should be affirmed. 13

ARGUMENT I. The action brought by Bankston in the Court below was in fact an attempt to appeal from the order of the three member Mississippi State Tax Commission and obtain a review of the decision of the three member Mississippi State Tax Commission that Bankston's attempted appeal to it from the Review Board was untimely. Not surprisingly, in his appeal, Bankston's ignores the seminal part of the ruling of the Chancery Court below which it cannot rebut and attempts to argue his appeal in a manner that, if accepted, would essentially allow Bankston to do something indirectly,' obtain a review of the decision that his appeal to the three member Mississippi State Tax Commission was untimely, that he cannot due under the statutory appeal procedure provided. Such is clearly contrary to the concept that equity jurisdiction should not be exercised if there is an adequate remedy at law and the clear legislative mandate that judicial review of the findings of the three member Mississippi State Tax Commission was to be by way of appeal under Miss. Code Ann. 27-77-7(Rev. 2005). Such an attempt to avoid the statutory requirements of Miss. Code Ann. 27-77-7 cannot be sustained. There is no question that the ruling of the Chancery Court below was based on the Court's conclusion that it "must consider Petitioner's complaint for that which it truly is, an administrative appeal from a MSTC Order filed under Miss. Code Ann. 27-77-7." (R.E. Tab 16 & R. 129.) In his Petition, Bankston even indicates that one of the basis for jurisdiction in this action is Miss. Code Ann. 14

27-77-7 and that "[v]enue is proper in the First Judicial District of Hinds County, Mississippi, under Mississippi Code Annotated 27-77-7(2).,,5 (R.E. 2, Petition, Paragraphs 5 & 6 & R. 2.) These citations to the statute in the Petition are not the only basis for concluding that Bankston's action was an action under Miss. Code Ann. 27-77- 7 (Rev. 2005). The entire focus of the Petition is to obtain a judicial review of the decision of the three member Mississippi State Tax Commission that Bankston's appeal to the Commission from the Review Board was untimely and that he is entitled to a hearing on the merits before the three member Mississippi State Tax Commission. (R.E. Tab 2, 1-12 & R. 1-12.) In the prayer ofrelief ofthe Petition, the first relief requested is "review and relief from the Order of the MSTC, dated June 1, 2010, dismissing his appeal from the Order of the Board of Review as untimely filed." (R.E. Tab 2 & R. 10.) The second relief requested is for the Court to order the requested hearing before the three member Mississippi State Tax Commission to obtain an "administrative review of merits of the Board of Review's original determination." (R.E. Tab 2 & R. 10.) Contrary to the current assertions of Bankston, his petition is the classic situation where a taxpayer is appealing under Miss. Code Ann. 27-77 -7(Rev. 2005) for a review of the finding 'It is noted that in asserting jurisdiction under Miss. Code Ann. 27-77-7 in Paragraph 5 of the Petition, Bankson erroneously cited to the version of Miss. Code Ann. 27-77-7 that went into effect on July I, 2010. Since the present action involves an assessment issued prior to July 1,2010, the version of Miss. Code Ann. 27-77-7(Rev. 2005) that was enacted in 2005 is applicable. See 2009 Miss. Laws Ch. 492, 1M.. 15

of the three member Mississippi State Tax Commission. In this particular case, the finding for which review is sought is that Bankston's appeal from the order of the Review Board to the three member Mississippi State Tax Commission was untimely. (R.E. Tab 12 & R. 79-80 and R.E. Tab 2, First Unnumbered Paragraph under "Relief Sought" & R. 10.) The Chancery Court was clearly correct when it found that Bankston's action was an appeal under Miss. Code Ann. 27-77-7(Rev. 2005). (R.E. Tab 16 & R. 129.) II. The Chancery Court below was correct when it found that Bankston's suit, being an action brought under Miss. Code Ann. 27-77-7(Rev. 2005), should be dismissed due to Bankston's failure to post a bond or pay the tax before filing his appeal. With the conclusion that Bankston's action was an appeal under Miss. Code Ann. 27-77-7(Rev. 2005), the question that arises is why was the case dismissed instead of being allowed to proceed as an appeal under Miss. Code Ann. 27-77- 7(Rev. 2005). The simple answer, as the Chancery Court found below, Bankston failed to meet the pre-conditions for filing such an appeal of posting a bond in double the amount in controversy or paying the tax assessment before filing the appeal. See Miss. Code Ann. 27-77-7(3)(Rev. 2005). This statute provided as follows: (3) A petition filed under subsection (I) of this section that appeals an order of the commission affirming a tax assessment, shall be accompanied by a surety bond approved by the clerk of the court in a sum double the amount in controversy, conditioned to pay the judgment of the court. The clerk shall not approve a bond unless the 16

bond is issued by a surety company qualified to write surety bonds in this state. As an alternative to the posting of bond, a taxpayer appealing an order of the commission affirming a tax assessment may, prior to the filing of the petition, pay to the agency, under protest, the amount ordered by the commission to be paid and seek a refund of such taxes, plus interest thereon. (Emphasis Added) Nowhere in the Petition does Bankston allege that it posted the required bond or paid the tax under protest before filing his Petition. (R.E. Tab 2, 1-12 & R. 1-21.) In its Motion to Dismiss, the Department asserts that there is no record in the file ofthe Court that the bond had been filed. (R.E. Tab 14, Paragraph 12, R. 102, Paragraph 12.) Bankston even admitted in his response to the Department's Motion to Dismiss that "they did not post bond or pay the tax prior to or contemporaneous with the filing of their Petition." (R. 114, Paragraph d.) Either based on judicial knowledge of the Court file or based on Bankston's admission, the Chancery Court correctly found that Bankston failed to post a bond or paid the tax under protest and concluded that it "must grant Defendant's Motion and dismiss the appeal of Bankston for lack of subject matter jurisdiction." (R.E. Tab 16 & R. 129-130.) Apparently, Bankston's response to the Court's decision on this issue is to simply ignore it by contending that he is no longer pursuing the administrative appeal action under Miss. Code Ann. 27-77-7(Rev. 2005) in this appeal. See Opening Brief of Appellant, p. 11, Footnote No.1. However, such a position is 17

impossible in this action where the decision of the Chancery Court below was based on the Court's conclusion that Bankston's action was an appeal under Miss. Code Ann. 27-77-7(Rev. 2005). The Court stated "[t]herefore, this Court must consider Petitioner's complaint for that which it truly is, an administrative appeal from a MSTC Order filed under Miss. Code Ann. 27-77-7." (R.E. Tab 16, R. 129.) It is not surprising that Bankston has dropped its argument that its action is an appeal under Miss. Code Ann. 27-77-7(Rev. 2005) since in bringing his action, he did not meet the requirements to bring such an appeal. As indicated above, Bankston failed to comply with the bond or payment under protest requirement of Miss. Code Ann. 27-77-7(Rev. 2005). Without meeting these requirements, as the Chancery Court below found, he could not sustain his action under Miss. Code Ann. 27-77-7(Rev. 2005). (R.E. Tab 16, R. 128-129.) Bankston also knew that the administrative appeal process set out under Miss. Code Ann. 27-77 -7(Rev. 2005) also meets the due process requirement which he claimed he was denied. In the recent case of Akins v. Mississippi Department of Revenue, 70 So. 3d 204 (Miss. 2011), the Mississippi Supreme Court found that the administrative and judicial review process involved in this appeal under Miss. Code Ann. 27-77-5 and 27-77-7 satisfy the requirement of due process. Id. at 209. It is probable 18

that Bankston will argue that this case is not controlling because he was not given a hearing on the merits before the three member Mississippi State Tax Commission. This case indicates however that "[g]enerally due process requires notice and a meaningful opportunity to be heard." Id. at 208. In the present appeal, Bankston was provide notice of the assessment and Miss. Code Ann. 27-77-5(Rev. 2005) and Miss. Code Ann. 27-77-7(Rev. 2005) provided Bankston to the opportunity of two (2) administrative hearing and a judicial review of the findings of the three member Mississippi State Tax Commission. The fact that he was unable to obtain a hearing on the merits before the three member Mississippi State Tax Commission due to his failure to timely appeal to the Commission does not mean that he was not given an opportunity to such a hearing. Additionally, he was given a hearing before the three member Mississippi State Tax Commission on whether his appeal to that body was timely and he was entitled by statute to timely and properly appeal to Chancery Court under Miss. Code Ann. 27-77-7 for a review of the Commission's finding that Bankston's appeal to it was untimely. Bankston failed to obtain such a judicial review not because it was not provided, but because he failed to follow the statutory requirements under Miss. Code Ann. 27-77- 7(3)(Rev. 2005) to post a bond or pay the tax under protest before filing his appeal to Chancery Court. (R.E. Tab 16 & R. 130-131). 19

The administrative and judicial appeal process under Miss. Code Ann. 27-77-5(Rev. 2005) and 27-77-7(Rev. 2005), including the posting of a bond or payment under protest, did provide Bankston with "a meaningful opportunity to heard", he just simply failed to properly take advantage to these opportunities. The Chancery Court conclusion below that Bankston's appeal should be dismissed due to Bankston's failure to post a bond under Miss. Code Ann. 27-77-7(3 )(Rev. 2005) is appropriate and should be affirmed. III. Bankston's reliance on Miss. Code Ann. 11-13-ll(Rev. 2004) to support his Petition is contrary the allegations and relief req uested in his Petition. It appears that Bankston's relies on the sole contention that the Chancery Court below erred in dismissing his action based on the contention that his action was brought under Miss. Code Ann. 11-13-11 (Rev. 2004). As the Court correctly found below, the present action is not an action brought under Miss. Code Ann. 11-13-11(Rev. 2004), but an appeal from the decision of the three member Mississippi State Tax Commission that Bankston's appeal to it was untimely. (R.E. Tab 16 & R. 129.) It is true that in the Petition, Bankston's list Miss. Code Ann. 11-13-11(Rev. 2004) as one of the basis for jurisdiction which also included Miss. Code Ann. 27-77-7. Miss. Code Ann. 11-13-11(Rev. 2004) provides: The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the 20

collection of any taxes levied or attempted to be collected without authority of law. In the Petition, there is no allegation that the tax in issue was levied or attempted to be collected without authority of law. (R.E. Tab 2 & R. 1-12.) A reading of the Petition reveals that the focus of Bankston's complaint is the decision of the three member Mississippi State Tax Commission that his appeal to the Commission was untimely. (R.E. Tab 2 & R. 1-12.) He attempts to contend that this decision deprived him of due process, but this issue actual deals with how the statutory thirty (30) day time period for filings appeal to the three member Mississippi State Tax Commission from the Review Board under Miss. Code Ann. 27-77-5(4) is computed. This is clearly an issue that can and was intended to be addressed in a review of the decision of the three member Mississippi State Tax Commission by a Chancery Court or appellate court under a properly filed appeal under Miss. Code Ann. 27-77-7(Rev. 2005). Nowhere in the Relief Sought in the Petition does Bankston ask for an injunction to enjoin the levy or the collection of the tax in issue or any tax. (R.E. Tab 2, 10-11 & R. 10-11.) As with the rest of the Petition, the relief requested focus on obtaining a review the decision ofthe three member Mississippi State Tax Commission as to the computation of the time period under Miss. Code Ann. 27-77-5(4), a determination that the Commission's computation was wrong and a 21

remand to the Commission for a hearing on the merits. (R.E. 2, 10-11 & R. 10-11.) In his brief, the only allegation that Bankston can point to for his contention that his Petition is an action under Miss. Code Ann. 11-13-11(Rev. 2004) is the one citation of that statute in paragraph 5 of the Petition wherein he list that statute among three (3) other basis for jurisdiction, including Miss. Code Ann. 27-77-7. See Opening Brief of Appellant, p. 16. Bankston relies on the case of Marx v. Truck Renting and Leasing Ass'n, Inc., 520 So. 2d 1333, 1340 (Miss. 1988) (hereinafter referred to as "TRLA") for the contention that this allegation is sufficient for jurisdiction of the action under Miss. Code Ann. 11-13-11 (Rev. 2004). The TRLA case however dealt with the exact opposite situation as in the present case where the plaintiff did not specifically cite Miss. Code Ann. 11-13- 11 but allege that it was seeking "an injunction to restrain the collection of taxes levied or attempted to be collected without the authority of law" and did allege that "there is an inadequate remedy at law." TRLA at 1339 & 1340. The Court found that such allegations were sufficient to state a complaint under Miss. Code Ann. 11-13-11(Rev.2004). TRLA at 1340. There are no such allegations in Bankston's Petition. (R.E. Tab 2,1-12 & R. 1-12.) The Court in the TRLA case did note that "[j]urisdictionally cases are generally classified by the nature of the primary right asserted and the remedy 22

sought." TRLA at 1338. Applying this standard to the allegations of the Petition in this appeal and the relief sought therein, there is no question that the Chancery Court below was correct when it found that "Petitioner's complaint" truly is "an administrative appeal from a MSTC Order filed under Miss. Code Ann. 27-77- 7". (R.E. 16, 129 & R. 129.) As Shakespeare wrote, "A rose by any other name would smell as sweet"; a Petition seeking a review of the decision of the three member Mississippi State Tax Commission under Miss. Code Ann. 27-77-7(Rev. 2005) is still an action under Miss. Code Ann. 27-77 -7(Rev. 2005) even if you erroneously assert Miss. Code Ann. 11-13-11(Rev. 2004) as a basis for jurisdiction for your action. As the Chancery Court found below, Bankston's Petition is not an action under Miss. Code Ann. 11-13-11. IV. Assuming that Bankston's Petition is sufficient to assert jurisdiction of his action under Miss. Code Ann. 11-13-11 (Rev. 2004), this action would still be barred due to the availability of an adequate remedy at law under Miss. Code Ann. 27-77-7(Rev. 2005). Assuming for argument purposes only that the allegations of Bankston's Petition are sufficient for Bankston to assert Miss. Code Ann. 11-13-11 (Rev. 2004) as jurisdiction for his action, jurisdiction of Bankston action under Miss. Code Ann. 11-13-11(Rev. 2004) still fails due to the existence of an adequate remedy at law. 23

The Department agrees with Bankston that Miss. Code Ann. 11-13- 11 (Rev. 2004) "is nothing more than a codification of the traditional requirement of equity jurisdiction with the legislatively added requirement that the taxes must be collected without authority of law." TRLA at 1339. The Department also agrees with Bankston that as with all other equity jurisdiction, jurisdiction does not arise under Miss. Code Ann. ll-13-11(rev. 2004) if the taxpayer has an adequate remedy at law. Stone v. Kerr, 194 Miss. 646, 10 So. 2d, 845 (1942), Fondren v. State Tax Commission, 350 So. 2d 1329, 1333 (Miss. 1977), Lewis v. Mass Appraisal Services, Inc., 396 So. 2d 35, 38-39 (Miss. 1981), and TRLA at 1340. The Department disagrees with Bankston's that the remedy provided under Miss. Code Ann. 27-77-7(Rev. 2005) is inadequate. In fact, the Department submits that this was exactly remedy that the Legislature intended in regard to disputes over issues as to whether a taxpayer's appeal to the three member Mississippi State Tax Commission is timely. During the period in issue, in regard to the filing of appeals from orders of the Review Board to the three member Mississippi State Tax Commission, Miss. Code Ann. 27-77-5( 4)(Rev. 2005) provided as follows: (4) Any taxpayer aggrieved by an order of the board of review affirming a tax assessment, the denial of a refund claim, or the denial of a waiver of tag penalty, and who wishes to contest the order shall, within thirty (30) days from the date of the order of the board of review being contested, file an appeal to the commission. The appeal shall be in writing and shall request a hearing and reversal or 24

modification of the order of the board of review, specify in detail the relief requested and contain any other information that might be required by regulation, and be flied with the commission secretary. Failure to timely file a written appeal with the commission secretary within the thirty-day period shall make the order of the board of review final and not subject to further review by the commission or a court, other than as to the issue of whether a written appeal from the order of the board of review was timely filed with the commission secretary. (Emphasis Added) This statute anticipates that there will be questions as to whether the appeal from the order of the Review Board will be timely and that such issues of timeliness will not only be addressed by the three member Mississippi State Tax Commission, but also by a court. The question as to how to get to Court is set out in Miss. Code Ann. 27-77-7(Rev. 2005). This statute provided, in part, as follows: (1) The findings and order of the commission entered under Section 27-77-5 shall be final unless the taxpayer shall, within thirty (30) days from the date of the order, file a petition in the chancery court appealing the order and pay the tax or post the bond as required in this chapter.... * * * (4) Upon the filing of the petition under subsection (1) of this section, the clerk of the court shall issue a summons to the State Tax Commission requiring the commission to answer or otherwise respond to the petition within thirty (30) days of service. The summons shall be served on the State Tax Commission by personal service on the commissioner as the chief executive officer of the State Tax Commission. The chancery court in which a petition under subsection (1) of this section is properly filed shall have 25

jurisdiction to hear and determine said cause or issues joined as in other cases. In any petition in which the taxpayer is seeking a refund or credit for an alleged overpayment of tax or for taxes paid under protest under subsection (3) of this section, the taxpayer shall prove by a preponderance of the evidence that he alone bore the burden of the tax sought to be refunded or credited and did not directly or indirectly collect the tax from anyone else. At trial of any action brought under this section, the chancery court shall give deference to the decision and interpretation of law and regulations by the commission as it does with the decisions and interpretation of any administrative agency, but it shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised. Based on the evidence presented at the hearing, the chancery court shall determine whether the taxpayer has proven, by a preponderance of the evidence or a higher standard if required by the issues raised, that he is entitled to any or all of the relief he has requested. The chancery court shall decide all questions presented, including those as to legality and the amount of tax or refund due, and if it finds that the tax assessment or denial of refund claim in issue is incorrect or invalid, in whole or in part, it shall determine the amount of tax or refund due, including interest and, if applicable, penalty to date, and enter such order or judgment as it deems proper. Under the plain wording of the above statutes, the adequate remedy at law that was provided to contest the determination of the three member Mississippi State Tax Commission that his appeal to the Commission from the order of the Board of Review was untimely was to appeal to Chancery Court under Miss. Code Ann. 27-77-7 and seek a review of that determination by the Court. As indicated above, Bankston attempted this remedy, but failed to do it properly by failing to post a bond or pay the tax in issue under protest. Such failure does not mean that an adequate remedy at law was not available, only that Bankston did not seek that 26

remedy properly. In this regard, it must be noted that not only was this remedy available. but Bankston was made aware of the remedy and advised by the three member Mississippi State Tax Commission as to how to obtain such remedy. The final paragraph of the Order of the three member Mississippi State Tax Commission states as follows: IT IS FURTHER ORDERED AND ADJUDGED by the State Tax Commission that the findings contained in this order shall become final unless Justin Bankston, within thirty (30) days from the date of this order, files a petition in Chancery Court appealing this order pursuant to Miss. Code Ann. 27-77-7. Even if a petition is filed, Miss. Code Ann. 27-77-7(3) requires that the petition be accompanied by a surety bond in double the amount in controversy or that the taxpayer pays under protest the assessment in issue prior to the filing of such petition. In any appeal of this order under Miss. Code Ann. 27-77-7, pursuant to Miss. Code Ann. 27-77-5(4), the sole issue to be considered and decided by the Chancery Court is whether a written appeal from the order of the board of review was timely filed with the Commission Secretary. (R.E. Tab 12 & R. 80) Bankston's contention that he did not have an adequate remedy at law to address the determination of the three member Mississippi State Tax Commission was untimely is clearly erroneous and cannot succeed. The two (2) cases relied on by Bankston for his contention that the remedy provided is inadequate are clearly distinguishable from the present case. In TRLA, the taxpayers argued that the imposition of sales tax on their activity violated the 27

commerce clause of the United States Constitution. TRLA at 1340. In this case, the Court could have found that the tax was due under the statute, even though it was in violation of the Commerce Clause. Bankston attempts to manufacture a due process violation in the present appeal arguing that he was denied an administrative hearing. He was not denied such a hearing; the three member Mississippi State Tax Commission simply found that his request for such a hearing was untimely. The issue in his appeal is not constitutional, but a simply computational issue similar to that found in Stone v. Kerr, 194 Miss. 646, 10 So. 2d, 845 (1942) where the Court found the remedy provide was adequate. The only difference between these two cases is that in that case the computation was as to tax and in the present case, the computational issue is as to time. The other case cited by Bankston is also distinguishable from the present case. In Fondren v. State Tax Commission, 350 So. 2d 1329, 1333 (Miss. 1977), the issue was related to the alleged failure of State Tax Commission to perform its "duty of equalizing assessments throughout the State" so such taxes are equal and uniform as required by Section 112 of the Mississippi Constitution of 1890. Id. at 1333. The Court found that the available remedies suggested by the Commission "were never intended as vehicles for compelling the Commission to comply with Section 112 of the Constitution." Id. at 1333-1334. In the present case, as noted 28

above, the adequate remedy at law available, an appeal under Miss. Code Ann. 27-77-7(Rev.2005), would allow the Court to address and to a certain extent was designed to address this issue of timeliness of an appeal from the order of the Board of Review to the three member Mississippi State Tax Commission. Unlike the Fondren v. State Tax Commission, 350 So. 2d 1329, 1333 (Miss. 1977), the remedy at law available to Bankston was more than adequate to address his complaint, he simply failed to comply with all of the requirements to obtain such remedy. V. Bankston's contention that a tax is being collected without authority of law due to the method by which the three member State Tax Commission computed the thirty (30) day period for filing an appeal from the order of the Review Board to the Commission does not constitute the levy or collection of a tax without authority of law. Contrary to the assertion of Bankston, the method by which the three member Mississippi State Tax Commission computed the thirty (30) day period does not result in the collection of tax without authority of law. Bankston has never raised an issue in this appeal that there is not a basis for the assessment in issue, even though he may disagree with the amount of the assessment. The fact that Bankston disagrees with how the period was computed does not mean that the underlying tax was levied or is being collected without the authority of law. The assessment clearly indicates that it was being assessed "in accordance with Section 27-65-37, Mississippi Code ofl972". (RE. Tab 3 & R. 13) 29

The contention that in making this computation, the three member Mississippi State Tax Commission refused to apply the Mississippi Administrative Procedures Law, is not clear from the facts of this case. The Order of the three member Mississippi State Tax Commission is silent on this issue. (R.E. Tab 12 & R. 79-80.) But even assuming that the Mississippi Administrative Procedures Law was not applied, this does not mean that the taxes in issue are being levied or collected without authority of law. This issue as to how to compute this time period is an application of the various statutes that would have been considered and the method of computation decided if Bankston had properly appealed to Chancery Court under Miss. Code Ann. 27-77-7(Rev. 2005). Even under Bankston's theory, until the Chancery Court or this Court determines that the Commission's computation is incorrect, it cannot be argued that the taxes in issue are without authority of law. Logically, even if this Court or the Chancery Court had found that the time period was computed incorrectly, collection oftaxeswithout authority of law would still not have occurred since this matter would have been remanded to the three member Mississippi State Tax Commission for a hearing resulting in the same, adjusted or no assessment. Such resulting assessment, if any, could not conceivably be considered a tax without authority of law. As Bankston's argument that application of the Mississippi Administrative Procedures Law would result in a different computation, such argument are not 30

ripe for consideration of this Court, since the lower court found that it did not have jurisdiction to consider such arguments. The Department however refers the Court to its response to the factual allegations of Bankston concerning this sameissue set out in pages 6-10 above which clearly indicates that it is very possible that with the application of the Mississippi Administrative Procedures Law, Miss. Code Ann. 25-43-1.1 0 I et seq., to Miss. Code Ann. 27-77-5( 4)(Rev. 2005), the result would be the same computation as that of the three member Mississippi State Tax Commission since the period in Miss. Code Ann. 27-77-5(4)(Rev. 2005) runs from the date of the review board order and not the service of the order. Bankston's contention that the taxes assessed against him are without authority of law is without merit. VI. Bankston's contention that Miss. Code Ann. 11-13-13 (Rev. 2004) has been superseded by Miss. R. Civ. P. 65 and in operable is in error and contrary to law in this State that continues to require the filing of bonds when required by statute. In regard to the issue of application of Miss. Code Ann. 11-13-13(Rev. 2004) to this appeal, it should be noted that contrary to the assertion of Bankston, the Chancery Court below did not find that the action should be dismissed due to Bankston's failure to post security under Miss. Code Ann. ll-13-13(rev. 2004) for the court found that Bankston's action was not being brought under Miss. Code Ann. Il-13-11(Rev. 2004) which requires the posting of a security under Miss. Code Ann. 11-13-13(Rev. 2004). What the Court below did find was "[fjurther 31

even if this Court were to find Bankston's pursuit to be legitimately filed under 11-13-11, the petition for relief would still be denied for failure to post security or a bond under Miss. Code Ann. 11-13-13." (R.E. Tab 16, 129 & R. 129.) As indicated multiple times above, the Department agrees with the Chancery Court that Bankston's action is not an action for injunction and therefore not an action under Miss. Code Ann. 11-13-11(Rev. 2004). However, the Department does disagree with Bankston's interpretation that the security requirement of Miss. Code Ann. 11-13-13 is procedural and has been superseded by Miss. R. Civ. P. 65. The first point on this issue is that Miss. Code Ann. 11-13-13 (Rev. 2004) was amended in 1991 to its present wording, long after the promulgation of Miss. R. Civ. P. 65 in 1981. See 1991 Miss. Laws Ch. 573, 25. If Miss. Code Ann. 11-13-13 was inoperable with the adoption of Miss. R. Civ. P. 65, why was it amended in 1991? The second point that the Department would raise on this issue is that such security to protest the interest of the state, county, city, town or village is not procedural, but substantive providing such political subdivisions an interest in property posted as security, if such political subdivisions suffer damages, costs, and reasonable attorney fees as a result of the injunction issued under Miss. Code Ann. 11-13-11(Rev. 2004). The third point the Department would make on this issue is that the Mississippi Supreme Court since the promulgation of Miss. R. Civ. P. 65 has found that 32