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recognizing legality challenges include not only those challenges to the validity of the ad valorem tax itself, but also to the constitutionality of the administration of the tax
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Nos. 95-C-2873, 95-C-2885, 95-C-2899, 95-C-2904
October 15, 1996
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, STATE OF LOUISIANA
Stewart Foster Peck, Esq., Mary Anne Sprague Langston, Esq., LUGENBUHL, BURKE WHEATON, PECK, RANKIN HUBBARD; Counsel for Applicant (No. 95-C-2873).
William Martin Hudson, III Esq., Patrick Bayard McIntire, Esq., OATES HUDSON; Henry Alan McCall, Esq., STOCKWELL, SIEVERT, VICCELLIO, CLEMENTS SHADDOCK; William M. Backstrom, Jr., Esq., JONES, WALKER, WAECHTER, POITEVENT, CARRERE DENEGRE; Christopher J. Dicharry, Esq., LEMLE KELLEHER; Counsel for Respondent (No. 95-C-2873).
Paul G. Borron, III Esq., Counsel for American Sugar Cane League (Amicus Curiae) (95-C-2873).
Marion French, Esq., Counsel for Louisiana Forestry Association (Amicus Curiae) (95-C-2873).
Thomas A. Rayer, Esq., Counsel for Louisiana Catholic Conference (Amicus Curiae) (95-C-2873).
Henry Alan McCall, Esq., William E. Shaddock, Esq., STOCKWELL, SIEVERT, VICCELLIO, CLEMENTS SHADDOCK; Counsel for Applicant (No. 95-C-2904)
William Martin Hudson, III Esq., Patrick Bayard McIntire, Esq., OATES HUDSON; Counsel for Respondent (No. 95-C-2904).
Paul G. Borron, III Esq., Counsel for American Sugar Cane League (Amicus Curiae).
Marion A. French, Esq., Counsel for Louisiana Forestry Association (Amicus Curiae).
William M. Backstrom, Jr., Esq., Edward Dirk Wegmann, Esq., Louis S. Nunes, III Esq., JONES, WALKER, WAECHTER, POITEVENT, CARRERE DENEGRE; Counsel for Applicant (No. 95-C-2899).
William H. Hudson, III Esq., Patrick Bayard McIntire, Esq., OATES HUDSON; Stewart Foster Peck, Esq., Mary Anne Sprague Langston, Esq., LUGENBUSH, BURKE, WHEATON, PECK, RANKIN, HUBBARD; Henry Alan McCall, Esq., STOCKWELL, SIEVERT, VICCELLIO, CLEMENTS, SHADDOCK; Counsel for Respondent (No. 95-C-2899).
Paul G. Borron, III Esq., Counsel for American Sugar Cane League (Amicus Curiae).
Marion A. French, Esq., Counsel for Louisiana Forestry Association (Amicus Curiae).
Christopher J. Dicharry, Esq., Willard Lee West, Esq., LEMLE KELLEHER; Counsel for Applicant (No. 95-C-2885).
William Martin Hudson, III Esq., Patrick Bayard McIntire, Esq., OATS HUDSON; Counsel for Respondent (No. 95-C-2885).
Paul G. Borron, III Esq., Counsel for American Sugar Cane League (Amicus Curiae).
Marion A. French, Esq., Counsel for Louisiana Forestry Association (Amicus Curiae).
Vyrona Marie Wiltz, Esq., Counsel for Louisiana Tax Commission (Amicus Curiae).
We granted certiorari to resolve the issue of whether an action for refund of ad valorem taxes paid under protest based upon a constitutional exemption is an assessment correctness challenge or a tax legality challenge. In these consolidated cases, plaintiff-vessel owners allege ad valorem taxes were imposed illegally on their vessels because the property enjoys a constitutional exemption from taxation. The district court granted summary judgment dismissing all the suits as premature. The court held the vessel owners first were required to exhaust administrative remedies mandated by La. Const. art. 7, § 18(E) before seeking review in district court because plaintiffs' challenge questioned not the legality of the tax but rather the correctness of the assessment. The court of appeal affirmed, agreeing that the vessel owners' challenge is addressed to the tax assessment's correctness. We reverse.
Triangle Marine, Inc. v. Savoie, 95-2873 (La. 2/9/96), 673 So.2d 1011; Montco, Inc. v. Cameron Parish, 95-2885 (La. 2/9/96), 673 So.2d 1011; Point Marine, Inc. v. Savoie, 95-2899 (La. 2/9/96), 673 So.2d 1011; Cameron Boat Rentals, Inc. v. Savoie, 95-2904 (La. 2/9/96), 673 So.2d 1012.
Triangle Marine, Inc. v. Savoie, 94-1502 (La.App. 3d Cir. 11/2/95), 664 So.2d 632. The court of appeal issued separate judgments, for the reasons discussed in the consolidated case of Triangle Marine, Inc. v. Savoie, supra, in 21 virtually identical cases. Seacor Offshore, Inc. v. Savoie, 94-1495 (La. App. 3d Cir. 11/2/95), 664 So.2d 635; Point Marine, Inc. v. Savoie, 94-1494 (La.App. 3d Cir. 11/2/95), 664 So.2d 635; Marine Asset Management Corp. v. Savoie, 94-1507 (La.App. 3d Cir. 11/2/95), 664 So.2d 635; Montco, Inc. v. Cameron Parish, 94-1508 (La.App. 3d Cir. 11/2/95), 664 So.2d 636; General Elec. Capital Corp. v. Savoie, 94-1509 (La.App. 3d Cir. 11/2/95), 664 So.2d 636; Tidewater Enter. v. Savoie, 94-1510 (La.App. 3d Cir. 11/2/95), 664 So.2d 637; Nicor Marine, Inc. v. Savoie, 94-1503 (La.App. 3d Cir. 11/2/95), 664 So.2d 637; Zapata Gulf Marine Serv. Corp. v. Cameron Parish, 94-1511 (La.App. 3d Cir. 11/2/95), 664 So.2d 637; Tidewater, Inc. v. Cameron Parish, 94-1512 (La.App. 3d Cir. 11/2/95), 664 So.2d 638; Zapata Gulf Marine Serv. Corp. v. Cameron Parish, 94-1513 (La.App. 3d Cir. 11/2/95), 664 So.2d 638; Tidewater, Inc. v. Cameron Parish, 94-1514 (La.App. 3d Cir. 11/2/95), 664 So.2d 639; Marine Asset Management Corp. v. Savoie, 94-1615 (La.App. 3d Cir. 11/2/95), 664 So.2d 639; Cameron Boat Rentals, Inc. v. Savoie, 94-1506 (La.App. 3d Cir. 11/2/95), 664 So.2d 640; Cameron Boat Rentals, Inc. v. Savoie, 94-1505 (La.App. 3d Cir. 11/2/95), 664 So.2d 640; Nicor Marine, Inc. v. Savoie, 94-1504 (La.App. 3d Cir. 11/2/95), 664 So.2d 640; Service Boat Rentals, Inc. v. Savoie, 94-1501 (La.App. 3d Cir. 11/2/95), 664 So.2d 641; Gulf Boat Marine Serv. v. Savoie, 94-1500 (La.App. 3d Cir. 11/2/95), 664 So.2d 641; Triangle Marine, Inc. v. Savoie, 94-1496 (La.App. 3d Cir. 11/2/95), 664 So.2d 642; Anna Offshore, Inc. v. Savoie, 94-1499 (La.App. 3d Cir. 11/2/95), 664 So.2d 642; Hornbeck Offshore (1991-II) Corp. v. Savoie, 94-1498 (La.App. 3d Cir. 11/2/95), 664 So.2d 642; Triangle Marine, Inc. v. Savoie, 94-1497 (La.App. 3d Cir. 11/2/95), 664 So.2d 643. Plaintiffs in Edison Chouest Offshore, Inc. v. Savoie, 10-11732, did not appeal.
FACTS
Triangle Marine, Inc. was assessed 1987 Cameron Parish ad valorem taxes on vessels which service or supply companies engaged in the exploration or production of oil and gas in the Gulf of Mexico. The vessel owner paid the ad valorem tax under protest and filed suit under LSA-R.S. 47:2110 against the Cameron Parish sheriff and ex-officio tax collector. The taxpayer claimed a refund of taxes paid on the basis that the assessed vessels were engaged in international trade and were thus exempt from ad valorem taxation under La. Const. art. 7, § 21(C)(16). Twenty-one other virtually identical cases were consolidated with this one; vessel owners contested ad valorem taxes assessed against vessels similarly engaged in various tax years.
In addition to the constitutional exemption, the plaintiff-vessel owners alternatively pleaded the vessels did not have the proper tax situs in Cameron Parish for ad valorem tax assessment, that the taxes were not properly apportioned for the time the vessels actually spent in Cameron Parish, that each vessel could only be subject to personal property taxes at the domicile of the vessel owner (which in some instances is not Cameron Parish), that Louisiana tax laws do not apply to the Outer Continental Shelf, and that the taxes violated the Commerce Clause, Due Process Clause, and Equal Protection Clause of the U.S. Constitution.
The Cameron Parish sheriff answered and denied the allegations. The sheriff sought summary judgment in each suit arguing the vessel owners had not sought review of the assessments by the parish governing authority and by the Louisiana Tax Commission which are necessary to a challenge of the correctness of the assessment under La. Const. art. 7, § 18(E). Attached to the Motion for Summary Judgment were affidavits from the administrator of the Cameron Parish Police Jury and the Chairman of the Louisiana Tax Commission asserting that no administrative review was undertaken prior to filing suit in district court. The vessel owners countered that they were correct in bringing the matter before the court because they are challenging the legality of the tax, not the correctness of the assessment, and thus LSA-R.S. 47:2110 gives them the right to bring suit in district court.
LAW AND DISCUSSION
Louisiana constitutional and statutory law formulates a two-track procedure a property owner must adhere to in challenging property tax assessments. One regime encompasses challenges to the "correctness of assessments" by the assessor and the other covers challenges to the legality of the tax levied. The assessment correctness challenge, mandated by La. Const. art. 7, § 18(E), instructs that
[t]he correctness of assessments by the assessor shall be subject to review first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law.
Tax assessors are constitutional officers, and their power and authority is statutorily defined. La. Const. art. 7, § 24; LSA-R.S. 47:1903. In pertinent part, section 1903 provides:
The tax assessors shall enumerate and list and assess property as directed in this Chapter, and be subject to all the obligations prescribed by law. They shall prepare and have ready their lists showing the valuations assessed by them, and lay the same before the tax commission within the time and in the manner prescribed by R.S. 47:1987 and 47:1988.
LSA-R.S. 47:1903.
Sections 1951 through 2000 of Title 47 delineate the assessment procedure for ad valorem taxation in Louisiana.
On the other hand, the Constitution requires the legislature to provide "a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer." La. Const. art. 7, § 3. The Louisiana Legislature enacted LSA-R.S. 47:2110 which provides a right to challenge "the legality of any tax accrued or accruing or the method of enforcement thereof." LSA-R.S. 47:2110(B). Thus, the law provides an assessment correctness challenge must be reviewed by the parish's board of review and the Louisiana Tax Commission before judicial review. A tax legality challenge, however, may be filed directly in the district court.
The right of recovery is contingent on payment under protest as provided in section 2110. LSA-R.S. 47:2110(B).
This court for some time has recognized a line of distinction between correctness and legality challenges. In Morgan's Louisiana Texas R.R. Steamship Co. v. Pecot, 50 La. Ann. 737, 23 So. 948, 950-51 (1898), we reasoned that correctness challenges are directed at issues of regularity or correctness of the assessment, such as over-valuation and misdescription, while legality challenges are directed at issues involving claims that the assessment is void for radical defects or that the assessment is inherently invalid.
This distinction was reaffirmed and explained in Soniat v. Board of State Affairs, 146 La. 450, 83 So. 760, 762 (1919). In Soniat, this court observed that where there is an assessment of property alleged to be exempt by law from taxation, such assessment is "not an assessment within the contemplation of the law . . . and can never become the basis for the levy of a valid tax . . . ." Moreover, we reasoned in the instance there is an assessment of property "subject to taxation," id., the assessment is not open to a legality challenge as having no legal existence; rather, "it is open to correction, by an increase or reduction in the valuation." Id. (emphasis added). In that case, the assessment must be shown to exceed or fall short of some defined "limitation of valuation" which the law so provides. Id.
Although the procedures for asserting correctness and legality challenges may have changed over the years — the most prominent change being constitutionally mandated administrative review of correctness challenges — these principles remain viable in distinguishing the dichotomy at issue. Indeed, these cases, and the legislature's usage, illustrate that "correctness of assessment" is a term of art, referring to the right of the taxpayer to seek adjustments to the valuation of taxable property. The term envisions a process which includes, as the court of appeal observed, "the uniformity and equality of taxation required by law." See Westminister [Westminster] Management Corp. v. Mitchell, 525 So.2d 1171, 1173 (La.App. 4th Cir.) ("'Correctness' includes both the standard of true value and the uniformity and equality required by law."), writ denied, 532 So.2d 132 (La. 1988), cert. denied, 489 U.S. 1018, 109 S.Ct. 1137 (1989); Capital Drilling Co. v. Graves, 496 So.2d 487, 492 n.2 (La.App. 1st Cir. 1986) (finding an assessment challenge to valuation is a challenge to correctness not collection of a tax and disputes are to be addressed to an administrative forum prior to judicial review).
See supra text accompanying note 3.
See, e.g., La. Const. art. 203 (1879) ("[T]he taxpayers shall have the right of testing the correctness of their assessments before the courts of justice . . . ."); 1898 La. Acts 170, § 24 (The review board's duty shall be to receive and hear all taxpayers desiring to "contest the correctness of the valuation placed by the assessor upon the property listed for assessment . . . ."); 1924 La. Acts 97, § 2 (Taxpayers have the right to "institute suit in the court having jurisdiction of the cause of action, for the purpose of contesting the correctness or legality of any assessment . . . ."); 1934 La. Acts 16, § 3 (2d ex. sess.) ("[T]ax payers shall have the right of testing the correctness of their assessments before the courts of the State . . . .").
In this case, however, the vessel owners argue the imposition of ad valorem taxes on their vessels, and Cameron Parish's attempt at collection, is illegal because their vessels enjoy a constitutional tax exemption. The owners claim a tax imposed on exempt property gives rise to a tax legality challenge properly instituted through suit under LSA-R.S. 47:2110 after tax payment under protest. Specifically, the owners allege the vessels are engaged in international trade and, therefore, are exempt from property tax pursuant to La. Const. art. 7, § 21(C)(16), as demonstrated in Moonmaid Marine, Inc. v. Larpenter, 599 So.2d 820 (La.App. 1st Cir.), writ denied, 605 So.2d 1120 (La. 1992).
In pertinent part, La. Const. art. 7, § 21(C)(16) provides:
Section 21. In addition to the homestead exemption provided for in Section 20 of this Article, the following property and no other shall be exempt from ad valorem taxation:
. . . .
(C)
. . . .
(16) ships and oceangoing tugs, towboats, and barges engaged in international trade and domiciled in Louisiana ports. However, this exemption shall not apply to harbor, wharf, shed, and other port dues or to any vessel operated in the coastal trade of the states of the United States.
A challenge to the validity of a tax on exempt property is a challenge to the legality, not the correctness, of the tax. State ex rel. United Seaman's Service v. City of New Orleans, 25 So.2d 596, 598-99 (La. 1946) (citing Soniat, 83 So. at 762). A tax assessment on exempt property is illegal. Id. Moreover, instituting suit directly in district court pursuant to LSA-R.S. 47:2110 is the appropriate method for challenging a tax levy on exempt property. This rule of law was succinctly articulated in Abraham v. Carter, 580 So.2d 485, 488 (La. App. 4th Cir. 1991):
Claims challenging the correctness of an assessment should go to the forum more suited to hear them, and only if the party is still aggrieved by the governing authority, need it seek a judicial remedy. Claims challenging the constitutionality of an assessment are not required to be heard by the governing body forum to whom the tax payer charges the grievance. Those claims are directly brought to [district court] under La.R.S. 47:2110.
This procedure is supported by Ford Motor Credit Co. v. Louisiana Tax Commission, 251 So.2d 392 (La.App. 1st Cir. 1971). In Ford Motor Credit, the plaintiffs challenged a broad ad valorem tax levy on accounts receivable, claiming the accounts were constitutionally exempt. Id. at 394. In finding the plaintiff should be allowed to litigate the tax imposed over the exemption, the court found "[t]he entire thrust of this lawsuit goes to the question of whether or not a tax can be constitutionally imposed, at all, upon these intangibles." Id. at 397. Thus, the court resolved plaintiff's challenge to be a legality challenge. Id.
We find a challenge to a tax assessment need not contest the validity of the ad valorem tax itself to constitute a legality challenge. Rather, an "as applied" challenge, such as the one asserted by the taxpayers herein, can be a legality challenge. Churchill Farms, Inc. v. Louisiana Tax Commission, 338 So.2d 963 (La.App. 4th Cir. 1976). We agree with the Churchill Farms panel that LSA-R.S. 47:2110 gives the taxpayer the right to challenge both the validity of the law itself and the constitutionality of the administration of an otherwise valid law. Id. at 966. This interpretation of section 2110 gives proper meaning to the disjunctive language of the statute which provides a right of action to question "the legality of any tax accrued or accruing or the method of enforcement thereof." LSA-R.S. 47:2110(B) (emphasis added).
CONCLUSION
The vessel owners' challenge to the imposition of ad valorem taxes assessed against allegedly exempt property presents a tax legality challenge. Plaintiffs properly proceeded in district court under LSA-R.S. 47:2110 to contest these taxes because a tax assessment on exempt property is illegal.
For these reasons, the judgment of the court of appeal is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.
It is so ordered.
DECREE
REVERSED AND REMANDED.
WATSON, J., — dissents and assigns reasons.
JOHNSON, J., — dissents.
The vessel-owners argue that the vessel ad valorem tax is invalid because their vessels are exempt from taxation. Because they assert a constitutional exemption, they argue their claim is a tax legality challenge properly instituted by suit under LSA-R.S. 47:2110 after tax payment under protest. They claim they were not required to seek administrative review prior to seeking judicial review. They err in confusing this challenge to the correctness of an assessment with a challenge to the legality of a tax.
Review of true tax legality challenges illustrates the distinction. In First Nat. Bank v. City of New Orleans, 555 So.2d 1345 (La. 1990), the City of New Orleans assessed an ad valorem tax against the shares of stock in local banks. A bank paid the tax under protest and filed suit under LSA-R.S. 47:2110 claiming the tax itself was invalid as applied to all banks because it did not provide a deduction for tax- exempt federal securities as required by federal law. Allied Chemical v. Iberville Parish Police, 426 So.2d 1336 (La. 1983) is relied on by the vessel-owners for the proposition that tax exemption claims are brought under LSA-R.S. 47:2110. However, the decision actually supports the lower courts' analysis. In Allied Chemical, the police jury had passed a resolution which imposed a tax on "all property" within a special service district. The taxpayers contended the tax resolution as adopted was too broad because it failed to recognize a statutory exemption for industrial areas. The taxpayers filed a declaratory judgment action seeking to have the court interpret the taxing resolution or to have the bond issue which was supported by the tax declared illegal. This Court held that the declaratory judgment action was not available and that the taxpayers were required to pay their taxes under protest and to bring an action under LSA-R.S. 47:2110.
Superficially, Allied Chemical and this case both concern taxpayers asserting an exemption against an ad valorem tax. However, the focus of the dispute is different. In Allied Chemical, the taxpayers asserted the ad valorem tax itself was invalid because it conflicted with a statutory exemption. This presented a conflict between laws, which the courts alone may resolve. Thus, the taxpayers in Allied Chemical were asserting a legality challenge which should have been brought pursuant to LSA-R.S. 47:2110.
The tax legality dispute in Allied Chemical was resolved by this Court in In re Pitre, 93-2322 (La. 1/14/94); 630 So.2d 700. One of the Allied Chemical taxpayers thereafter paid the ad valorem taxes under protest and brought suit under LSA-R.S. 47:2110. This Court upheld the tax; the statutory exemption was an unconstitutional expansion of the exclusive ad valorem exemptions listed in La. Const. art. 7, § 21.
A tax legality challenge questions the validity of the tax itself. By contrast, the taxpayers here do not contest the ad valorem tax's validity. The vessel-owners seek to qualify for anexemption from a valid tax or an apportionment of those taxes. This case does not present a conflict between laws, only the application of admittedly valid tax laws to these circumstances. Lowrey Chevrolet, Inc. v. Brumley, 510 So.2d 1294 (La.App. 3 Cir.), writ denied, 514 So.2d 20 (La. 1987), recognized this distinction. Lowrey held a taxpayer's claim of assessment disproportionality was not a tax legality challenge but an assessment correctness challenge which required compliance with La. Const. art. 7, § 18(E) and its implementing legislation, LSA-R.S. 47:1931, 47:1989, 47:1992 and 47:1998. The taxpayer "was not challenging the right of the State to obtain revenue by way of ad valorem taxation, nor was the plaintiff questioning the methods by which ad valorem taxes are enforced." Id., 510 So.2d at 1297.
An assessment challenge questions the correctness of the assessment, which encompasses more than an evaluation of the property's value. An assessor's duties are to "enumerate and list and assess." In order to do so, the assessor must first decide whether property may be assessed at all; i.e. whether the property is exempt. A tax exemption determination is an assessment decision.
Couching their assertions in constitutional language does not convert the vessel-owners' claim into a tax legality challenge. Westminster Management Corp. v. Mitchell, 525 So.2d 1171, 1173 (La.App. 4 Cir.), writ denied, 532 So.2d 132 (La. 1988), involving an assessment disproportionality claim, held:
"Correctness" includes both the standard of true value and the uniformity and equality required by law. The achievement of both is the goal, the absence of either creates incorrectness. That uniformity and equality are given higher priority than true value does not make an attack on the former rather than the latter something other than a challenge for "correctness."
See also Abraham v. Carter, 580 So.2d 485, 488 (La.App. 4 Cir. 1991) (stating violations of due process and equal protection without factual basis does not create a legality challenge).
The allegations in the vessel-owners' petitions involve a simple determination of the relevant facts; i.e. whether any of the vessels are engaged in international trade; whether any of the vessels are subject to double taxation; whether the vessels have a tax situs in Cameron Parish. Such determinations are precisely the type of assessment decisions initially made by the assessor to compile the tax rolls. A taxpayer who disputes the assessor's interpretation of constitutional ad valorem exemptions must seek administrative review of that determination prior to seeking judicial review. La. Const. art. 7, § 18(E).
The same constitutional exemption claimed by the vessel-owners here was asserted against ad valorem taxes in Zapata Gulf Marine Operators v. Tax Com'n, 554 So.2d 1253 (La.App. 1 Cir. 1989), writ denied, 559 So.2d 1357 (La. 1990). Two vessel-owners notified the assessor claiming tax exempt status for their vessels. The assessor denied the exemption; the vessel-owners sought administrative review. When both the board of review and tax commission denied the tax exemption claimed, the vessel-owners paid the taxes under protest and filed suit pursuant to LSA-R.S. 47:2110. The district court vacated the tax commission's decision and recognized that the vessels were exempt from ad valorem taxes. The court of appeal reversed, finding the vessels did not qualify for the constitutional exemption. This Court denied writ. See also Rowan Companies v. State Tax Com'n, 563 So.2d 951 (La.App. 1 Cir.), writ denied, 567 So.2d 1130 (La. 1990) (international trade exemption for jack-up rig denied by board of review and tax commission but approved on judicial review). The same procedure should have been followed here; the vessel-owners should have asserted their claimed exemption to the board of review and the tax commission before filing suit for judicial review.
Zapata Gulf Marine Operators, Inc. is also a plaintiff in this case.
The vessel-owners' reliance on various cases to support their claim of a tax legality challenge is misplaced. Cases rendered before adoption of the 1974 Louisiana Constitution are not controlling here. Earlier state constitutions have no counterpart to 1974 La. Const. art. 7, § 18(E). Although the sources of LSA-R.S. 47:1998 and 47:2110 were enacted prior to 1974, there were no constitutional provisions for mandatory administrative review of ad valorem assessments. The earlier constitutions drew no distinction between challenges to the correctness of assessments and the legality of a tax.
For source laws to LSA-R.S. 47:1998, see Acts 1898, No. 170, §§ 24, 56; Acts 1906, No. 63; Acts 1914, No. 219, § 1; Acts 1916, No. 140, § 16; Acts 1924, No. 97, §§ 1 to 3; and Acts 1934, 2nd Ex.Sess., No. 18, § 8. For source laws to LSA-R.S. 47:2110, see Acts 1934, 2nd Ex.Sess., No. 16, §§ 1, 2; Acts 1938, No. 330.
Earlier constitutions provided the right of testing the correctness of assessments before the courts. See 1879 La. Const. art. 203; 1898 La. Const. art. 225; 1913 La. Const. art. 225; 1921 La.Const. art. 10, § 1.
The vessel-owners rely on Sales Tax Dist. #1 of LaFourche Par. v. Express Boat Co., Inc., 500 So.2d 364 (La. 1987) and Moonmaid Marine, Inc. v. Larpenter, 599 So.2d 820 (La.App. 1 Cir.), writ denied, 605 So.2d 1120 (La. 1992) for the proposition that their vessels are engaged in international trade. Both of these cases address the merits of the taxpayers' exemption claim rather than the proper procedure for determining their exemption entitlement. Express Boat applied the exemption in the context of a sales and use tax. La. Const. art. 7, § 18(E) mandates administrative review of ad valorem, not sales and use, assessments. Moonmaid Marine was a claim to recover taxes erroneously paid pursuant to LSA-R.S. 47:2108.1.
Some of the vessel-owners in Moonmaid Marine are plaintiffs here.
The vessel-owners rely on appellate cases where ad valorem tax exemptions were claimed, taxes were paid under protest and LSA-R.S. 47:2110 suits were filed as authority for following that procedure. See Mississippi River Transmission v. Simonton, 442 So.2d 764 (La.App. 2 Cir. 1983), writ denied, 444 So.2d 1240 (La. 1984); United Gas Pipe Line Co. v. Whitman, 390 So.2d 913 (La.App. 2 Cir. 1980), writ denied, 396 So.2d 928, 929 (La. 1981); Enterprise Products Co. v. Whitman, 364 So.2d 634 (La. App. 2 Cir. 1978), writ denied, 366 So.2d 916 (La. 1979); A P Boat Rentals v. Cronvich, 361 So.2d 1260 (La.App. 1 Cir.), writ denied, 363 So.2d 923 (La. 1978). None of these cases address La. Const. art. 7, § 18(E) or the administrative review process. None of the cases interpret the distinction between suits filed under LSA-R.S. 47:1998 and LSA-R.S. 47:2110. None of these cases address the issue presented here and cannot be considered authoritative.
Dicta from appellate cases is similarly nonauthoritative. See Capital Drilling Co. v. Graves, 496 So.2d 487, 492 n.2 (La.App. 1 Cir. 1986) (statement that LSA-R.S. 47:2110 is proper vehicle for claiming tax exemption, in reliance on Allied Chemical and other cases rejected as authority herein, was dicta where court found it unnecessary to determine whether claim presented tax legality or assessment correctness challenge); Rickey Tri-Key Partnership v. Dupleix, 462 So.2d 235, 238 (La.App. 3 Cir. 1984), writ denied, 464 So.2d 1384, 1385 (La. 1985) (statement that LSA-R.S. 47:2110 is method for attacking validity of assessment was dicta where facts showed taxpayer properly followed full administrative procedures before seeking judicial review).
The vessel-owners' claim of a tax exemption from ad valorem taxes presents an assessment correctness challenge. They do not question the validity of the ad valorem tax, only its application to their property under the circumstances. Determination of tax exemption is an assessment decision. The vessel-owners consciously chose to pursue a remedy under LSA-R.S. 47:2110 rather than pursue administrative review as mandated by La. Const. art. 7, § 18(E) and its implementing legislation or the remedy provided by LSA-R.S. 47:2108.1.
I respectfully dissent.