An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-674


Filed: 15 March 2005



v .                         Wake County
                            No. 03 CVS 012609


    Appeal by plaintiff from judgment entered 29 January 2004 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 16 November 2004.

    White and Crumpler, by David B. Freedman and Jones P. Byrd, Jr., for plaintiff-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Michael D. Youth, for the Department of Revenue, defendant- appellee.

    ELMORE, Judge.

    Plaintiff appeals the trial court's order dismissing his appeal from a decision of the Tax Review Board for lack of subject matter jurisdiction. We affirm.
    Plaintiff was assessed an unauthorized substance excise tax of $32,620.00 (plus interest) based on his possession of controlled substances. Plaintiff, pursuant to N.C. Gen. Stat. § 105.241.1(c), requested a hearing on the tax. That hearing took place and the Assistant Secretary lowered the tax due to $27,960.00 (plusinterest). Plaintiff then petitioned the Tax Review Board for review of the Assistant Secretary's decision pursuant to N.C. Gen. Stat. § 105-241.2, which affirmed the assessment of the Assistant Secretary. Plaintiff, without yet paying the tax, appealed to the Wake County Superior Court, pursuant to N.C. Gen. Stat. § 105- 241.3, for review of the Tax Review Board's decision. Defendant filed a motion for dismissal for lack of subject matter jurisdiction, arguing that since plaintiff had not yet paid the tax, the trial court was without jurisdiction under section 105- 241.3 to hear plaintiff's case. The trial court ordered dismissal.
    Plaintiff contends that section 105-241.3 is unconstitutional because it requires a taxpayer to pay the disputed tax prior to having judicial review over the taxpayer's obligation to pay the tax. Since plaintiff cannot pay the tax assessed against him, he argues that section 105-241.3 unconstitutionally restricts his access to the courts and deprives him of due process. Yet, payment of a tax prior to a court having subject matter jurisdiction to hear the matter has been determined to be constitutional. See McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 L. Ed. 2d 17 (1990) (due process met with clear and meaningful backward looking relief, typically a full refund); Swanson v. State of North Carolina, 335 N.C. 674, 684, 441 S.E.2d 537, 543 (1994) (N.C. Gen. Stat. § 105-267 requiring prior payment affords due process), overruled on other grounds, Bailey v. State of North Carolina, 348 N.C. 130, 167, 500 S.E.2d 54, 76 (1998); Javurek v. Tax Review Bd. Dep't of State Treasurer, ___ N.C. App.___, 605 S.E.2d 1 (2004) (failure to pay tax divests court of subject matter jurisdiction); Salas v. McGee, 125 N.C. App. 255, 480 S.E.2d 714 (post-deprivation relief afforded by section 105-267 is constitutional), disc. review denied, 345 N.C. 755, 485 S.E.2d 298 (1997). We see no reason not to apply the jurisprudence of section 105-267, holding that prepayment of the tax is constitutional, to that of N.C. Gen. Stat. § 105-241.3, which also requires prepayment.
    Plaintiff availed himself of the full administrative review procedures established by the General Assembly without paying the tax. For a court to then review the Tax Review Board's assessment under N.C. Gen. Stat. § 105-241.3 or N.C. Gen. Stat. § 105-241.4 and § 105-267, plaintiff must complete payment of the tax. Accordingly, the trial court did not err in dismissing plaintiff's action under section 105-241.3 for lack of subject matter jurisdiction.
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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