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Cate v. Steager

Supreme Court of West Virginia

June 16, 2017

Wesley Cate, Petitioner Below, Petitioner
v.
Dale W. Steager, State Tax Commissioner, Respondent Below, Respondent

         Kanawha County 16-AA-8

          MEMORANDUM DECISION

         Petitioner Wesley Cate, by counsel John H. Henderson, appeals the May 18, 2016, order of the Circuit Court of Kanawha County that affirmed the dismissal of his appeal from a petition for reassessment against Respondent Dale W. Steager, West Virginia Tax Commissioner.[1]Respondent, by counsel Cassandra L. Means, filed a response in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in affirming the motion to dismiss his petition for reassessment because it did not have personal jurisdiction over him.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, we find that the circuit court erred with respect to its denial of petitioner's motion to alter or amend judgment. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         In June of 2015, petitioner was issued an audit notice of assessment for personal income tax in the amount of $3, 522. In September of 2015, petitioner filed a petition for reassessment with the West Virginia Office of Tax Assessment ("OTA"). Petitioner admitted in his petition that his filing "was beyond the 60-day deadline" in which a taxpayer is permitted to file for reassessment pursuant to West Virginia Code § 11-10-8(a).[2]

         Also in September of 2015, the West Virginia Tax Department ("Tax Department") filed a motion to dismiss petitioner's petition with the OTA based upon petitioner's failure to timely file his petition. According to the record, petitioner did not respond or object to the Tax Department's motion to dismiss, nor did he introduce or seek to introduce any additional evidence. In November of 2015, an OTA Administrative Law Judge ("ALJ") issued an order of dismissal based upon petitioner's untimely filing of his petition.[3]

         In January of 2016, petitioner filed a petition for appeal in the Circuit Court of Kanawha County. The circuit court affirmed the ALJ's decision by order entered on May 18, 2016. It is from this order that petitioner now appeals.

         Petitioner appeals the circuit court's order affirming the decision of the OTA. The standard of review applicable to such a proceeding is as follows:

In an administrative appeal from the decision of the West Virginia Office of Tax Appeals, this Court will review the final order of the circuit court pursuant to the standards of review in the State Administrative Procedures Act set forth in [West Virginia] Code § 29A-5-4(g) [1998]. Findings of fact of the administrative law judge will not be set aside or vacated unless clearly wrong, and, although administrative interpretation of State tax provisions will be afforded sound consideration, this Court will review questions of law de novo.

Syl. pt. 1, Griffith v. ConAgra Brands, Inc., 229 W.Va. 190, 728 S.E.2d 74 (2012). Moreover, we previously have held that "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995). Accord Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). Additionally, West Virginia Code § 29A-5-4(g) provides that

[t]he court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

         In keeping with these standards, we proceed to consider the parties' arguments.

         Petitioner's sole argument on appeal is that the circuit court erred in affirming the motion to dismiss his petition for reassessment because it did not have personal jurisdiction over him. We disagree. It is well settled law that an appeal from a dismissal is not reviewed on the merits, but rather, a determination is made as to whether the pleadings below are sufficient to withstand the motion to dismiss. We have held that

[t]o allow the circuit court to determine an issue on evidence not considered at the administrative hearing would cast the court in the role of performing an executive function. Under the acknowledged principle of separation of powers this cannot be permitted. Thus, the circuit court must decide the case on the evidence in the record as it was received.

Va. Elec. and Power Co. v. Haden, 157 W.Va. 298, 305, 200 S.E.2d 848, 853 (1973). Thus, the matter before this Court is limited to the review of the dismissal order, which narrowly addressed the issue of the timeliness of petitioner's petition for ...


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