Wendt v Tolson, (03-1680) 08/16/2005

Appeal by petitioner from order entered 23 September 2003 by Judge Charles H. Henry in Carteret County Superior Court. Heard in the Court of Appeals 16 September 2004.

Peter Wendt, pro se, petitioner-appellant.

Attorney General Roy Cooper, by Assistant Attorney General Kay Linn Miller Hobart and Assistant Attorney General Alexandra M. Hightower, for respondent-appellee.

CALABRIA, Judge.

    Peter Wendt (“petitioner”) appeals from an order of the superior court granting motions by E. Norris Tolson, North Carolina Secretary of Revenue (“respondent”), for summary judgment and sanctions against petitioner. After careful consideration of the record, we remand for entry of an order dismissing the action and for findings and conclusions to support the award of sanctions to respondent.
    Following petitioner's failure to pay state taxes, respondent filed certificates of tax liability and issued warrants for the collection of taxes pursuant to N.C. Gen. Stat. § 105-242 (2003). Petitioner did not pursue administrative review of the tax assessment by requesting a hearing before the Secretary of Revenue or by paying the taxes and bringing suit for a refund. Instead, petitioner filed two actions in Carteret County Superior Court alleging that the statutory procedures for assessment and collection of taxes are unconstitutional. The trial court granted summary judgment upon finding petitioner had failed to either pay the disputed tax or avail himself of the administrative remedies provided to a taxpayer under the statute. Neither of these actions is presently on appeal to this Court.
    Subsequently, petitioner filed a third action in Carteret County Superior Court requesting the return of his property. Respondent moved for summary judgment, arguing that the doctrines of res judicata and collateral estoppel applied because the trial court had previously issued a final judgment on the same legal issues. Respondent also sought sanctions pursuant to Rule 11 to impose a pre-filing injunction upon petitioner to prevent further frivolous litigation. In an order entered 23 September 2003, the trial court concluded that there were no genuine issues of material fact in dispute and granted both of respondent's motions. With regard to sanctions, the trial court ordered that petitioner may not file any lawsuit without prior approval by the senior resident superior court judge of the county. From this order, petitioner appeals.
I. Summary Judgment    Our legislature has provided a taxpayer seeking to challenge a state tax assessment with two separate avenues of relief. Upon receipt of the notice of tax assessment, the taxpayer may request a hearing on the matter before the Secretary of Revenue. See N.C. Gen. Stat. § 105-241.1 (2003). The taxpayer need not pay the disputed tax unless and until the Tax Review Board determines the tax assessment to be valid. See id. Alternatively, a taxpayer may decline to initiate administrative review, pay the taxes due, and sue the State for a refund under the procedure set forth in N.C. Gen. Stat. § 105-267 (2003), which provides as follows:
        No court of this State shall entertain a suit of any kind brought for the purpose of preventing the collection of any tax imposed in this Subchapter. Whenever a person has a valid defense to the enforcement of the collection of a tax, the person shall pay the tax to the proper officer, and that payment shall be without prejudice to any defense of rights the person may have regarding the tax. At any time within the applicable protest period, the taxpayer may demand a refund of the tax paid in writing from the Secretary [of Revenue] and if the tax is not refunded within 90 days thereafter, may sue the Secretary in the courts of the State for the amount demanded.

Thus, any taxpayer seeking judicial review of a tax assessment must pay the disputed tax prior to filing suit. Even in cases where a taxpayer is contesting the constitutionality of the assessment, failure to comply with the statute bars a court from hearing the action. Salas v. McGee, 125 N.C. App. 255, 258, 480 S.E.2d 714, 716 (1997); 47th Street Photo, Inc. v. Powers, 100 N.C. App. 746, 749, 398 S.E.2d 52, 54 (1990) ( saying “a constitutional defense toa tax does not exempt a plaintiff from the mandatory procedure for challenging the tax set out in § 105-267”).
    Here, petitioner filed suit without exhausting his administrative remedies and without first paying the disputed tax. Petitioner failed to comply with the mandatory procedure outlined in N.C. Gen. Stat. § 105-267; therefore, the trial court did not acquire subject matter jurisdiction. See Javurek v. Tax Review Bd., 165 N.C. App. 834, 836-37, 605 S.E.2d 1, 5 (2004) (affirming a trial court's order denying a petitioner's motion for summary judgment and dismissing his action against a respondent Tax Review Board because the petitioner failed to comply with the statutory requirements for a challenge of a tax assessment; therefore, the trial court lacked subject matter jurisdiction under N.C. Gen. Stat. §§ 105-241.3 and 105-267) (2003). The trial court should have dismissed the action for lack of subject matter jurisdiction, rather than granting summary judgment. This case is remanded to the trial court to vacate the summary judgment and for dismissal of the case.
II. Rule 11 Sanctions
    Petitioner assigns error to the imposition of sanctions against him. Respondent acknowledges that the trial court failed to set forth findings of fact to support its conclusion that sanctions are proper pursuant to Rule 11. Our Supreme Court held in Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989), that a trial court's decision on whether to impose sanctions under Rule 11 must be supported by findings of fact. “Acourt's failure to enter findings of fact and conclusions of law on this issue is error which generally requires remand in order for the trial court to resolve any disputed factual issues.” McClerin v. R-M Industries, Inc., 118 N.C. App. 640, 644, 456 S.E.2d 352, 355 (1995). “However, remand is not necessary when there is no evidence in the record, considered in the light most favorable to the movant, which could support a legal conclusion that sanctions are proper.” Id.
    Here, the trial court granted respondent's motion for sanctions pursuant to Rule 11 without citing the factual basis for the decision. Moreover, the record contains competent evidence to support a determination that sanctions are proper. Accordingly, we remand for the entry of specific findings and conclusions to support the trial court's order of sanctions.
    Vacated and remanded in part.
    Judges ELMORE and STEELMAN concur.
    Report per Rule 30(e).

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