Opinion
No. 1060296.
Decided May 4, 2007.
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (Jefferson Probate Court, 187686; Court of Civil Appeals, 2050538).
HealthSouth Corporation appealed to the Court of Civil Appeals from a judgment of the Jefferson Probate Court in favor of Dan Weinrib, the Jefferson County tax assessor, and J.T. Smallwood, the Jefferson County tax collector ("the taxing authorities"). The Court of Civil Appeals affirmed the judgment of the probate court. HealthSouth Corp. v. Jefferson County Tax Assessor, [Ms. 2050538, October 27, 2006] ___ So. 2d ___ (Ala.Civ.App. 2006). HealthSouth then petitioned this Court for a writ of certiorari, and we granted HealthSouth's petition to review a question of first impression presented by this case. We affirm the judgment of the Court of Civil Appeals.
I. Factual Background and Procedural History
For the tax years 2001, 2002, and 2003, HealthSouth submitted personal-property tax returns to the Jefferson County tax assessor on which it intentionally listed numerous fictitious items of personal property and assigned fabricated values to those items. HealthSouth paid taxes for the years 2001 and 2002 based on the submitted returns. Before paying the amount due for 2003, however, HealthSouth amended its tax return for that year to remove the fictitious assets. The Jefferson County tax assessor allowed the adjustment as to 2003. HealthSouth then amended its 2001 and 2002 returns and filed petitions for a refund of the portion of ad valorem personal-property taxes it claims it overpaid as a result of listing the fictitious items of personal property on its tax returns for 2001 and 2002. The Jefferson County tax collector requested an opinion from the attorney general, who determined that no refund was due. The tax collector then denied the petitions for a refund of the taxes HealthSouth had paid for 2001 and 2002 on the fictitious property.
As the Court of Civil Appeals noted, before 2002 several officials of HealthSouth were involved in a scheme to artificially inflate the company's reported earnings and, in furtherance of that scheme, overstated the corporation's fixed assets. The inflated personal-property tax returns reflected the overstated assets.
HealthSouth filed an action in the Jefferson Probate Court challenging the tax collector's refusal to grant its petitions for the refund of ad valorem taxes paid on personal property for the years 2001 and 2002. When the probate court denied the petitions for refund, HealthSouth appealed to the Court of Civil Appeals. That court affirmed the judgment of the probate court. The Court of Civil Appeals held that § 40-10-160, Ala. Code 1975, providing for tax refunds based upon a mistake or an error, did not permit a refund when the taxpayer's overpayment resulted from the taxpayer's intentionally false statements as to the value of nonexistent assets. This Court granted certiorari on the question of first impression: whether an intentional misrepresentation by a taxpayer in reporting property on a tax return constitutes a mistake or an error within the purview of § 40-10-160.
II. Standard of Review
"In reviewing a decision of the Court of Civil Appeals on a petition for a writ of certiorari, this Court 'accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.' Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996). Because the material facts before the Court of Civil Appeals were undisputed, that court's review of the trial court's ruling would be de novo as well. State Dep't of Revenue v. Robertson, 733 So. 2d 397, 399 (Ala.Civ.App. 1998). This is particularly true where the intermediate appellate court is construing statutory provisions. Robertson, supra; Pilgrim v. Gregory, 594 So. 2d 114, 120 (Ala.Civ.App. 1991)."
Ex parte Exxon Mobil Corp., 926 So. 2d 303, 308 (Ala. 2005).
III. Analysis
Section 40-10-160 provides:
"Any taxpayer who through any mistake, or by reason of any double assessment, or by any error in the assessment or collection of taxes, or other error, has paid taxes that were not due upon the property of such taxpayer shall be entitled, upon making proof of such payment to the satisfaction of the Comptroller, to have such taxes refunded to him if application shall be made therefor, as hereinafter provided, within two years from the date of such payment."
(Emphasis added.)
This Court's decision to grant HealthSouth's petition for the writ of certiorari was triggered by the pivotal issue of the significance, if any, of the legislature's choice of two words — "error" and "mistake" — in its refund statute and its linking those words with the disjunctive conjunction "or." The parties have wrestled mightily with parsed definitions from various sources that might afford a separate field of operation for the terms. Of course, HealthSouth contends that "error" can embrace an intentional act and therefore that its fraudulent inclusion on its personal-property tax returns of assets that did not exist constitutes the type of activity for which it is entitled to relief pursuant to § 40-10-160 in the form of a refund of taxes paid. HealthSouth does not contend that "mistake" embraces its activities. The taxing authorities, on the other hand, argue that neither "error" nor "mistake" includes deliberate, intentional acts of the character committed by HealthSouth.
The State of Alabama has intervened as an amicus curiae in support of the taxing authorities.
The Court of Civil Appeals, after citing definitions for each word, concluded:
"Although HealthSouth may be correct that the plain meaning of the word 'mistake' is slightly different from the plain meaning of the word 'error,' we are clear to the conclusion that an intentional misrepresentation is not included in the plain meaning of either word."
___ So. 2d at ___.
We conclude that the Court of Civil Appeals was correct. While nuanced definitions of the two words could considerably lengthen this opinion, there is ample authority for the proposition that "error" or "mistake" does not contemplate dishonest activity. This Court considered the significance of a legislative choice of "clerical error" and "other mistake of the clerk" in Ford v. Tinchant Brother, 49 Ala. 567, 571 (1873). Although the Ford Court concluded that each of the terms had a separate field of operation, a limitation in its holding is significant to the issue in this case. This Court inFord stated:
"The legislature cannot be held to have been so careless of language, as to have used the expressions 'clerical error,' and 'other mistake of the clerk,' in exactly synonymous sense, in view of the liability to mistake in the entries and record of causes; or to have excluded from amendment the manifest oversights and inaccuracies of the counsel, not calculated to mislead, in permitting the correction of 'any error in fact in the process.'"
(Emphasis added.) Thus, in Ford this Court qualified the field of operation of "clerical error" and "other mistake of the clerk" by embracing only conduct that was "not calculated to mislead."
In Alabama Georgia Lumber Co. v. Tisdale, 139 Ala. 250, 36 So. 618 (1903), the amount of the judgment enforcing a mechanic's lien was less than the amount that had previously been claimed in the statement of lien filed in the office of judge of probate. The validity of the lien was challenged on the basis of the discrepancy. The applicable statute provided: "[N]o error in the amount of the demand or in the name of the owner or proprietor shall affect the lien. . . . " 139 Ala. at 255, 36 So. at 619. The Court observed:
"Fraud is never presumed. On the facts found, the discrepancy can and should be accounted for on the ground of a mistake or error. . . .
". . . Whether the present statute was intended to prevent a destruction of the lien when the amount in the statement was intentionally made excessive in order to secure to the lienor a fraudulent advantage, we will not decide. But where, as here, no we fraudulent purpose or intent is found to exist, are clearly of [the] opinion that the lien is not impaired or destroyed by the error as to the amount."
139 Ala. at 256-57, 36 So. at 620. Later, in Fleming v. McDade, 207 Ala. 650, 651, 93 So. 618, 619 (1922), this Court was required to resolve the question left unanswered in Alabama Georgia Lumber Co. This Court stated:
"In Ala. Ga. Lbr. Co. v. Tisdale, 139 Ala. 250, 257, 36 South. 618 [(1903)], there is to be found a query whether the present statute [providing for protection from destruction of the lien for error in the amount of the demand] was intended to prevent the destruction of the lien, as held in Lane Bodley Co. v. Jones, [ 79 Ala. 156 (1885), holding that a fraudulent statement vitiated the lien] under the statute then in force, as to which no opinion was expressed. We are clearly of the opinion, however, that the principle announced in the older case has been in no wise affected by the provision of the present statute that 'no error in the amount of the demand, . . . shall affect the lien'; for this means merely an inadvertent or honest mistake, and not a willfully false claim."
In Scheuer v. Berringer, 102 Ala. 216, 14 So. 640 (1894), dealing with error or mistake, on the one hand, or fraud, on the other, in settlements of accounts between partners, this Court recognized differing relief available attending each circumstance. This Court quoted with approval the trial court's order, which in turn quotedCowan v. Jones, 27 Ala. 317, 325 (1855), in which this Court stated, "'"The rule is settled that, where errors or mistakes only are shown, the account will not be opened, as where fraud is shown; but the party alleging error or mistake in the account, will be permitted to surcharge and falsify it."'" 102 Ala. at 220, 14 So. at 642. The trial court's order continued:
"'In Moses [Bros.] v. Noble['s Adm'r], 86 Ala. 407, [410, 5 So. 181, 182 (1888),] Justice Clopton remarks: "In the absence of allegation and proof of fraud or undue influence, which taints the entire account, the court will not open and unravel as if no account had been made. . . . When only errors or mistakes are made, alleged, and proved, wrong charges which should be deducted, or omission of credit which should be allowed, the court will give the party complaining permission to surcharge and falsify the account, and limits its authority to a correction of the errors or mistakes."'"
102 Ala. at 220, 14 So. at 642. Scheuer was followed inBurks v. Parker, 192 Ala. 250, 68 So. 271 (1915).
In the context of acts of a municipality, this Court has limited error or mistake to honest activity:
"Bad faith is synonymous with fraud. 6 C.J. pp. 880, 881; Morton Bliss v. [New Orleans Selma] Railway Co., 79 Ala. 590, 617 [(1885)]. Error or mistake of judgment, in the exercise of a discretionary power, is not the equivalent of bad faith or fraud. In such circumstances, error or mistake of judgment consists with honest intention, or freedom from unworthy or unlawful motive or design."
Pilcher v. City of Dothan, 207 Ala. 421, 424, 93 So. 16, 19 (1922) (emphasis added).
HealthSouth accuses the Court of Civil Appeals of rewriting § 40-10-160 by refusing to permit the modifier "any," used in the statute to modify both error and mistake, to have a field of operation. But adopting HealthSouth's view requires us to expand the commonly understood and long-settled scope of the terms "error" or "mistake," contrary to this Court's treatment of those terms over the years. Indeed, in Fleming v. McDade, the statute in question used an equally broad adjective in providing that "no error in the amount of the demand, . . . shall affect the lien." 207 Ala. at 651, 93 So. at 619 (emphasis added). As previously noted, this Court did not permit such language, contrary to common usage, to sweep so broadly as to protect a party from the destruction of its lien by reason of its fraudulent statement of amount.
We are not led to a different conclusion by reason of a recent opinion of a Georgia trial court recognizing HealthSouth's right to a refund pursuant to a Georgia statute. Section 48-5-380(a), Ga. Code Ann., provides:
HealthSouth relies upon an unpublished opinion rendered by the Superior Court of Clayton County, Georgia, a copy of which HealthSouth provided to this Court. HealthSouth Holdings, Inc. v. Clayton County, Georgia, No. 2005-CV-2056-7 (Clayton Superior Court, October 19, 2006).
"Each county and municipality may refund to taxpayers any and all taxes and license fees which are determined to have been erroneously or illegally assessed and collected from the taxpayers under the laws of this state or under the resolutions or ordinances of any county or municipality or which are determined to have been voluntarily or involuntarily overpaid by the taxpayers."
(Emphasis added.) In Marconi Avionics, Inc. v. DeKalb County, 165 Ga. App. 628, 630, 302 S.E.2d 384, 385-86 (1983), relied upon by the Georgia trial court, the Georgia Court of Appeals stated: "We interpret the refund statute according to its literal and logical meaning: it applies to all property 'erroneously or illegally assessed' and taxes 'voluntarily or involuntarily overpaid,' for whatever reason." Section 40-10-160 is materially different from the Georgia statute.
In closing, we note that HealthSouth contends that the Court of Civil Appeals has disregarded the rule of construction of statutes that presumes every word has some purpose and that no superfluous provisions are used. See Ex parte Panell, 756 So. 2d 862, 867 (Ala. 1999). Our determination that the words "error" and "mistake" are not consistent with dishonest acts, regardless of whatever else they might mean, obviates the necessity for determining the applicability of this presumption. Nevertheless, we note that this Court, as well as other jurisdictions, has recognized that that presumption can be overcome by a determination that the legislature has used synonyms. See Anderson v. Hooks, 9 Ala. 704, 709-10 (1846), discussing the significance of a phrase in the Statute of Frauds referring to "the intent or purpose" and concluding:
"The introduction of the term 'purpose' into the act, does not impart to it any additional potency. It is only the synonym for design, intention, aim — is but a mere expletive, intended to convey the idea which the legislature had in view more strikingly, and might be stricken from the act without affecting its interpretation in any manner."
Likewise, in Caldwell v. State, 32 Ala. App. 228, 230, 23 So.2d 876, 878 (1945), the Court of Appeals held that "[t]he words 'oppose' and 'resist' as they appear in the [Code] section are synonymous."
"It seems clear that the terms 'oppose' and 'resist', as they are used in the statute under consideration, convey a legislative intent to protect the officer against obstruction and interference and therefore contemplate the use of either actual or constructive force against the officer who is making an effort to serve or execute the legal writ or process. In other words, it is not made a criminal offense to hinder or interrupt or circumvent the service of the process with which the officer is armed, unless in doing so actual or constructive force is used against the officer himself."
32 Ala. App. at 230-31, 23 So. 2d at 878.
Such observations about a legislature's capacity to employ synonyms were summarized in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253 (1994), in which the United States Supreme Court noted the existence of cases recognizing the use of synonyms in statutes, by referring to United States v. Olano, 507 U.S. 725, 732 (1993), which it described as "reading 'error or defect' to create one category of 'error.'" The Court then noted that Olano cited McNally v. United States, 483 U.S. 350, 358-59 (1987), which the Court described as holding that the "second phrase in [the] disjunctive [was] added simply to make the meaning of the first phrase 'unmistakable.'" InMcNally, the Court stated: "As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property." 483 U.S. at 359. See also Southwick v. State, 126 Ark. 188, 190, 189 S.W. 843, 844 (1916) ("'The use of the disjunctive 'or' between the words 'intimidation' and 'threats' in the statute was not in the sense of indicating that they are two different things, but was only used as an alias to designate the same thing by different words."); and Smith v. R.F. Brodegaard Co., 77 Ga. App. 661, 663-64, 49 S.E.2d 500, 502 (1948):
"We do not think the words 'possession, custody, or control,' as used in the statute providing for bail in actions for personalty, mean three different things; or that they state three different situations or grounds on which a plaintiff in trover can require a bond of the defendant. They express an alternative of terms, definitions or explanations of the same thing in different words. They mean substantially the same thing, i.e. that the property is within the power and dominion of the defendant. . . . 'The word "or," when used not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same result, states but a single ground, and not the alternative.' 46 C.J., 1125(4). This rule of construction has been recognized and applied by our courts in criminal cases and in civil cases."
See also Lewis v. Superior Court, 217 Cal. App. 3d 379, 397, 265 Cal. Rptr. 855, 865 (1990) ("Although we endeavor to give effect to every word in a statute, sometimes terms used together are simply synonymous."). Finally, see United States v. Patterson, 55 F. 605, 639 (C.C.D. Mass. 1893):
"The court is well aware of the general rule which has been several times (twice certainly) laid down by the supreme court of the United States, that in construing a statute every word must have its effect, and the consequent presumption that the statute does not use two different words for the same purpose; but this rule has its limitations, and it is a constant practice for the legislature to use synonyms. A word is used which it is thought does not perhaps quite convey the idea which the legislature intends, and it takes another word, which perhaps has to some a little different meaning, without intending to more than make strong the purpose of the expression in the statute."
Even if the terms "error" or "mistake" are synonymous, resort to synonyms for clarity or emphasis is clearly within the prerogative of the legislature.
IV. Conclusion
The settled meaning of the terms "error" and "mistake" is not consistent with dishonest acts. We therefore affirm the judgment of the Court of Civil Appeals.
AFFIRMED.
Cobb, C.J., and Woodall, Stuart, Smith, and Parker, JJ., concur.
See, J., concurs in the rationale in part and concurs in the result.
Bolin and Murdock, JJ., recuse themselves.
I fully join in the holding of the main opinion. I agree that neither "mistake" nor "error" in this statute encompasses HealthSouth's deliberate misrepresentations on its tax returns. I write specially only to note that I do not consider it necessary to determine whether the legislature could have intended to use the terms "error" and "mistake" as synonyms. Therefore, I do not join in that discussion.