Opinion
No. 107,252.
2012-11-2
STATE of Kansas, Department of Revenue, Appellee, v. Chester E. RICHARDS, Appellant.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge. Chester E. Richards, pro se appellant. Randall J. Wharton, of Kansas Department of Revenue, for appellee.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.
Chester E. Richards, pro se appellant. Randall J. Wharton, of Kansas Department of Revenue, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
After receiving an assessment of unpaid income taxes for 2005 and 2006, Chester E. Richards advised the Kansas Department of Revenue (KDOR) that its records were wrong because he had no “taxable income.” Although given the opportunity to do so, Richards elected not to take part in any administrative proceedings nor did he appeal the KDOR's final determination to the Court of Tax Appeals (COTA). Upon subsequently receiving a tax warrant, however, Richards filed a motion to dismiss the warrant with the district court. The district court determined that it had no jurisdiction because Richards failed to exhaust his administrative remedies. We agree.
Facts
In March 2008, Richards received a notice of assessment of unpaid income taxes for 2005 and 2006. In response, Richards asserted that the assessment was in error because he was unaware that he had any “taxable income” for those years. The KDOR then sent Richards a letter dated April 10, 2009, in which it gave him notice of an informal telephone conference to discuss the matter set for June 30, 2009. But Richards called the KDOR and indicated that he would not be participating in the telephone conference or any part of the administrative proceedings.
Subsequently, the KDOR made a final determination upholding the 2005 and 2006 assessments. In a letter dated July 8, 2009, the KDOR informed Richards of its decision and advised him of his right to appeal to the COTA within 30 days. Because Richards did not appeal, the KDOR issued a tax warrant against him.
On May 18, 2011, Richards filed a motion to dismiss the tax warrant in the district court. He later filed a motion and memorandum of law in which he argued that he was a “non-taxable person.” Following a hearing, the district court issued a decision concluding that it did not have jurisdiction to consider Richards' arguments because he failed to exhaust his administrative remedies. Thereafter, Richards timely appealed to this court.
Analysis
Whether a party is required to or has failed to exhaust its administrative remedies is a question of law over which the appellate court's review is unlimited. See Litzinger v. Bruce, 41 Kan.App.2d 9, 11, 201 P.3d 707 (2008). If the district court lacked jurisdiction, this court does not have jurisdiction over the appeal. See J. Enterprises, Inc. v. Board of Harvey County Comm'rs, 253 Kan. 552, Syl. ¶ 1, 857 P.2d 666 (1993). “The exhaustion requirement of K.S.A. 77–612 is a jurisdictional prerequisite to the entire petition for judicial review.” Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 410, 204 P.3d 562 (2009).
“A person may file a petition for judicial review ... only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” K.S.A.2010 Supp. 77–612. Here, Richards admits that he did not participate in the informal telephone conference offered by the KDOR nor did he take advantage of his opportunity to appeal the final determination to the COTA. See K.S.A. 74–2438. Rather, Richards made the conscious decision to avoid the administrative process entirely and then seek to collaterally attack the tax warrant in the district court.
Constitutional due process requirements are satisfied when a party has notice and an opportunity to present a challenge to the action. State ex rel. v. Dwyer, 208 Kan. 437, 442–43, 493 P .2d 1095 (1972); In re Application of Kinnet, 26 Kan.App.2d 250, 253, 984 P.2d 725 (1999). Furthermore, “[i]n the realm of taxes, matters of assessment, exemption, equalization, and valuation are administrative in character. Under Kansas Law, it would be unwarranted for a court to entertain a tax suit on any of these matters of administrative expertise where administrative remedies had not been pursued.” J. Enterprises, Inc., 253 Kan. 552, Syl. ¶ 2; see also Pattison v. State, Dept. of Revenue, No. 95,739, 2007 WL 316821, at *l–2 (Kan.App.2007) rev. denied May 8, 2007, (unpublished opinion).
In the present case, Richards clearly had notice of the assessment and the opportunity to present a challenge at the administrative level. That opportunity satisfied constitutional due process requirements. Unfortunately, Richards failed to preserve his right to challenge the actions of the KDOR by deliberately choosing not to take advantage of the opportunity the legislature had afforded him.
Moreover, a point that an appellant fails to support with pertinent authority is deemed abandoned. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Richards argues that K.S.A.2010 Supp. 77–612(b) provides an exception to the exhaustion requirement when a statute “states that exhaustion is not required.” Although he claims that he has “rights by other unidentified statutes,” he fails to identify these statutes. As such, Richards has abandoned this argument.
We, therefore, affirm the district court's dismissal of this action for lack of jurisdiction.
Affirmed.