{ "id": 9000344, "name": "JAMES LESLIE JAVUREK, Petitioner v. TAX REVIEW BOARD DEPARTMENT OF STATE TREASURER, NORTH CAROLINA, Respondent", "name_abbreviation": "Javurek v. Tax Review Board Department of State Treasurer", "decision_date": "2004-08-17", "docket_number": "No. COA03-1016", "first_page": "834", "last_page": "841", "citations": [ { "type": "official", "cite": "165 N.C. App. 834" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "490 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "589" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11797964 ], "year": 1997, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0493-01" ] }, { "cite": "108 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "210" } ], "opinion_index": 0 }, { "cite": "250 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621438 ], "year": 1959, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0213-01" ] }, { "cite": "500 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "348 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659878 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/348/0130-01" ] }, { "cite": "112 S. Ct. 1942", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1992, "opinion_index": 0 }, { "cite": "118 L. Ed. 2d 547", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "504 U.S. 911", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11736865, 11737123, 11736934, 11736776, 11736681, 11737194, 11737352, 11736624, 11736468, 11736532, 11736825, 11736985, 11737279 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/504/0911-07", "/us/504/0911-10", "/us/504/0911-08", "/us/504/0911-05", "/us/504/0911-04", "/us/504/0911-11", "/us/504/0911-13", "/us/504/0911-03", "/us/504/0911-01", "/us/504/0911-02", "/us/504/0911-06", "/us/504/0911-09", "/us/504/0911-12" ] }, { "cite": "412 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "304" } ], "opinion_index": 0 }, { "cite": "330 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512760 ], "year": 1991, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0227-01" ] }, { "cite": "231 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "634", "parenthetical": "appeal is moot \"[w]hen events occur during the pendency of [the] appeal which cause the underlying controversy to cease to exist[.]\"" } ], "opinion_index": 0 }, { "cite": "291 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558987 ], "year": 1977, "pin_cites": [ { "page": "694", "parenthetical": "appeal is moot \"[w]hen events occur during the pendency of [the] appeal which cause the underlying controversy to cease to exist[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0693-01" ] }, { "cite": "407 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555208, 2555276, 2553460, 2555999, 2555647 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0268-05", "/nc/329/0268-04", "/nc/329/0268-01", "/nc/329/0268-02", "/nc/329/0268-03" ] }, { "cite": "398 S.E.2d 52", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "54", "parenthetical": "\"a constitutional defense to a tax does not exempt a plaintiff from the mandatory procedure for challenging the tax set out in \u00a7 105-267\"" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 746", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527600 ], "year": 1990, "pin_cites": [ { "page": "749", "parenthetical": "\"a constitutional defense to a tax does not exempt a plaintiff from the mandatory procedure for challenging the tax set out in \u00a7 105-267\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0746-01" ] }, { "cite": "147 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "526", "parenthetical": "N.C. Gen. Stat. \u00a7 105-267, which \"requires the taxpayer to pay the amount of the disputed tax and sue the State for its recovery ... is [the] appropriate procedure for a taxpayer who seeks to test the constitutionality of a statute or its application to him.\"" } ], "opinion_index": 0 }, { "cite": "267 N.C. 15", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558205 ], "year": 1966, "pin_cites": [ { "page": "20", "parenthetical": "N.C. Gen. Stat. \u00a7 105-267, which \"requires the taxpayer to pay the amount of the disputed tax and sue the State for its recovery ... is [the] appropriate procedure for a taxpayer who seeks to test the constitutionality of a statute or its application to him.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0015-01" ] }, { "cite": "485 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54021, 54161, 54066, 54139, 53919 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0755-01", "/nc/345/0755-03", "/nc/345/0755-04", "/nc/345/0755-05", "/nc/345/0755-02" ] }, { "cite": "480 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11866830 ], "year": 1997, "pin_cites": [ { "page": "257-58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0255-01" ] }, { "cite": "226 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "290 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561684 ], "year": 1976, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0450-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-241.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "203 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "55" } ], "opinion_index": 0 }, { "cite": "285 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561713 ], "year": 1974, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0064-01" ] }, { "cite": "260 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "615", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573981 ], "year": 1979, "pin_cites": [ { "page": "721", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0715-01" ] }, { "cite": "62 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "233 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597367 ], "year": 1950, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0050-01" ] }, { "cite": "100 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "508", "parenthetical": "describing the procedures set out in N.C. Gen. Stat. \u00a7 105-267 and 105-241.1 et seq.'" }, { "page": "508-09" } ], "opinion_index": 0 }, { "cite": "247 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626364, 8626390 ], "weight": 2, "year": 1957, "pin_cites": [ { "page": "239", "parenthetical": "describing the procedures set out in N.C. Gen. Stat. \u00a7 105-267 and 105-241.1 et seq.'" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0236-01", "/nc/247/0236-02" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-267", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "year": 2003, "pin_cites": [ { "parenthetical": "\"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 [\"Levy of Taxes\"].\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 105-241.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-241.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-241.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "et seq." }, { "page": "et seq." }, { "page": "et seq." }, { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 707, "char_count": 16087, "ocr_confidence": 0.743, "pagerank": { "raw": 2.9198150227848606e-07, "percentile": 0.8464947184179463 }, "sha256": "8ab133af7c1ff86b6d2cbfb2bd1a8e5b1f4b47ee511508eb65c59992dc8fc0cc", "simhash": "1:4b2bd403469a6c90", "word_count": 2667 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "JAMES LESLIE JAVUREK, Petitioner v. TAX REVIEW BOARD DEPARTMENT OF STATE TREASURER, NORTH CAROLINA, Respondent" ], "opinions": [ { "text": "GEER, Judge.\nPetitioner James Leslie Javurek appeals from the trial court\u2019s order denying his motion for summary judgment and dismissing his action against respondent Tax Review Board. Because Javurek failed to comply with the statutory requirements for a challenge of a tax assessment, we hold that the trial court properly concluded it lacked subject matter jurisdiction and affirm.\nFactual Background\nIn April 2001, Javurek and his wife filed North Carolina tax returns for 1998 and 1999 showing tax owed in the amount of $82.00 for 1998 and $1,216.00 for 1999. They did not, however, pay the tax due. In June 2001, Javurek received Notices of Individual Income Tax Assessment stating that he owed $125.41 in tax, penalty, and interest for tax year 1998 and $1,762.25 in tax, penalty, and interest for tax year 1999. By letter dated 26 June 2001, Javurek requested a hearing before the Secretary of Revenue regarding the assessments, pursuant to N.C. Gen. Stat. \u00a7 105-241.1. At the 24 September 2001 hearing, Javurek argued that he was not a taxpayer and that his wages were not subject to tax. The Department of Revenue issued a Final Decision on 10 December 2001, concluding that the assessments were \u201cfinal and collectible.\u201d\nPursuant to N.C. Gen. Stat. \u00a7 105-241.2, Javurek filed a petition for administrative review with the Tax Review Board (\u201cthe Board\u201d) on 8 March 2002. On 12 August 2002, having received no decision from the Board on his petition for review, Javurek filed this action, captioned \u201cRequest for Judicial Review, Writ of Prohibition and Order of Judgment.\u201d Javurek sought an order divesting the Board of jurisdiction and prohibiting any further action by the Secretary of Revenue regarding the assessments. The Board filed a response in the civil action on 23 September 2002, seeking dismissal of the action.\nOn 15 October 2002, in the administrative proceeding, the Board issued its decision, concluding that the petition for administrative review was frivolous and filed for the purpose of delay. The Board, therefore, dismissed the petition pursuant to N.C. Gen. Stat. \u00a7 105-241.2(c).\nJavurek filed a motion for summary judgment in the civil action on 11 October 2002. On 30 January 2003, the Superior Court held a hearing on Javurek\u2019s motion for summary judgment, but concluded that it lacked jurisdiction under N.C. Gen. Stat. \u00a7\u00a7 105-241.3 and 105-267. On the same day, the court entered a written order denying the motion for summary judgment and dismissing the action. Petitioner filed notice of appeal from that order on 25 February 2003.\nDiscussion\nJavurek\u2019s primary contention on appeal is that the trial court erred in dismissing his action for lack of subject matter jurisdiction because he complied with the required statutory procedures. Our General Assembly has prescribed two specific methods by which a taxpayer may appeal from an administrative assessment of taxes: N.C. Gen. Stat. \u00a7 105-241.1 et seq. (2003) and N.C. Gen. Stat. \u00a7 105-267 (2003). See Duke v. State, 247 N.C. 236, 239, 100 S.E.2d 506, 508 (1957) (describing the procedures set out in N.C. Gen. Stat. \u00a7 105-267 and 105-241.1 et seq.'). Because Javurek did not comply with either statutory procedure, the superior court lacked subject matter jurisdiction over his civil action.\n\u201cThe principle is generally upheld by the courts that statutory remedies granted to a taxpayer must first be exhausted before applying to the courts.\u201d Gill v. Smith, 233 N.C. 50, 52, 62 S.E.2d 544, 545 (1950). See also Presnell v. Pell, 298 N.C. 715, 721, 260 S.E.2d 611, 615 (1979) (internal citations omitted) (\u201c[Wjhere the legislature has provided by statute an effective administrative remedy, that remedy is exclusive and its relief must be exhausted before recourse may be had to the courts. This is especially true where a statute establishes, as here, a procedure whereby matters of regulation and control are first addressed by commissions or agencies particularly qualified for the purpose.\u201d).\nJavurek contends that he complied with the requirements set out in N.C. Gen. Stat. \u00a7 105-241.1 et seq. N.C. Gen. Stat. \u00a7 105-241.1 provides for assessment of tax due by the Department of Revenue and establishes hearing procedures for taxpayers who contest the assessments. N.C. Gen. Stat. \u00a7 105-241.2 provides for administrative review of the Secretary of Revenue\u2019s assessment:\n(a) Petition for Administrative Review. \u2014 Without having to pay the tax or additional tax assessed by the Secretary under this Chapter, any taxpayer may obtain from the Tax Review Board an administrative review with respect to the taxpayer\u2019s liability for the tax or additional tax assessed by the Secretary. Such a review may be obtained only if the taxpayer has obtained a hearing before the Secretary and the Secretary has rendered a final decision with respect to the taxpayer\u2019s liability. . . .\n(c) Frivolous Petitions. \u2014 Upon receipt of a petition requesting administrative review as provided in the preceding subsection, the Tax Review Board shall examine the petition and the records and other data transmitted by the Secretary pertaining to the matter for which review is sought, and if it appears from the records and data that the petition is frivolous or filed for the purpose of delay, the Tax Review Board shall dismiss the petition for review.\nN.C. Gen. Stat. \u00a7 105-241.2.\nHere, Javurek complied with the procedures for contesting his assessment and for obtaining review by the Board as set out in N.C. Gen. Stat. \u00a7\u00a7 105-241.1 and 105-241.2. The Board, however, determined that his petition for administrative review was frivolous and dismissed it pursuant to N.C. Gen. Stat. \u00a7 105-241.2(c).\nThe statutory appeal procedure from a decision by the Board is set out in N.C. Gen. Stat. \u00a7 105-241.3, incorrectly captioned \u201cAppeal without payment of tax from Tax Review Board decision[,]\u201d which provides:\n(a) Any taxpayer aggrieved by the decision of the Tax Review Board may, upon payment of the tax, penalties and interest asserted to be due or upon filing with the Secretary a bond in such form as the Secretary may prescribe in the amount of said taxes, penalties and interest conditioned on payment of any liability found to be due on an appeal, appeal said decision to the superior court under the provisions of Article 4 of Chapter 150B of the General Statutes ....\n(b) When an appeal is taken under this section from the Tax Review Board\u2019s dismissal of a petition for administrative review under the provisions of G.S. 105-241.2(c), the question of appeal shall be limited to a determination of whether the Tax Review Board erred in its dismissal, and in the event that the court finds error, the case shall be remanded to the Tax Review Board to be heard.\nN.C. Gen. Stat. \u00a7 105-241.3 (emphasis added). Thus, under the statute, a taxpayer may appeal from the Board\u2019s decision to superior court only after paying the amount due or filing a bond. There is nothing in this record to indicate that Javurek paid the tax or filed a bond, as required by the statute. Javurek, apparently relying on the incorrect caption, argues that he complied with this procedure. However, \u201c[t]he law is clear that captions of a statute cannot control when the text is clear.\u201d In re Appeal of Forsyth County, 285 N.C. 64, 71, 203 S.E.2d 51, 55 (1974). Under the plain language of the statute, Javurek failed to comply with the statutory prerequisites for the superior court to have jurisdiction to engage in a review of the Board\u2019s decision.\nJavurek was free to abandon his administrative proceeding in favor of a civil action challenging the tax assessments. Our General Statutes provide:\nAny taxpayer who has obtained an administrative review by the Tax Review Board as provided by G.S. 105-241.2 and who is aggrieved by the decision of the Board may, in lieu of appealing pursuant to the provisions of G.S. 105-241.3, within 30 days after notification of the Board\u2019s decision with respect to liability pay the tax and bring a civil action for its recovery as provided in G.S. 105-267.\nN.C. Gen. Stat. \u00a7 105-241.4 (emphasis added). As our Supreme Court has explained:\nHaving taken advantage of the opportunity for a review by the Tax Review Board, the person assessed may, if he so elects, abandon the process of administrative review and seek relief from the Superior Court under its original jurisdiction. G.S. 105-241.4. Of course, if he asks the Superior Court to exercise its original jurisdiction he must, as a condition precedent thereto, pay his tax under protest and sue to recover as provided by G.S. 105-267.\nDuke, 247 N.C. at 240, 100 S.E.2d at 508-09.\nN.C. Gen. Stat. \u00a7 105-267 in turn provides, in relevant part:\nNo 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 [\u201cLevy of Taxes\u201d]. 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 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.\nOur Supreme Court \u201chas held that G.S. 105-267 . . . establishes] the general rule that there shall be no injunctive or declaratory relief to prevent the collection of a tax, i. e., the taxpayer must pay the tax and bring suit for a refund.\u201d Cedar Creek Enters., Inc. v. State of N.C. Dep't of Motor Vehicles, 290 N.C. 450, 455, 226 S.E.2d 336, 339 (1976). In this case, Javurek failed to comply with the procedure set out in N.C. Gen. Stat. \u00a7 105-267, under which he was required to first pay the tax and then sue the state for a refund.\nThis is true even though Javurek has asserted violations of the constitution. This Court has explained that the procedure outlined in N.C. Gen. Stat. \u00a7 105-267 must be followed even where, as here, the taxpayer is challenging the constitutionality of a tax:\nPlaintiffs\u2019 due process claim rests on their contention that the only avenue for contesting a jeopardy tax assessment is under G.S. 105-267, which prevents a court from taking jurisdiction over a contested tax assessment suit unless the aggrieved taxpayer first pays the tax and then seeks a refund from the North Carolina Department of Revenue.\n. . . Even in cases where the taxpayer is challenging the constitutionality of a tax, failure to comply with the \u201cState\u2019s statutory postpayment refund demand procedure\u201d set forth in the statute bars the court from hearing the taxpayer\u2019s claim.\nSalas v. McGee, 125 N.C. App. 255, 257-58, 480 S.E.2d 714, 716, disc. review denied, 345 N.C. 755, 485 S.E.2d 298 (1997). See also Gulf Oil Corp. v. Clayton, 267 N.C. 15, 20, 147 S.E.2d 522, 526 (1966) (N.C. Gen. Stat. \u00a7 105-267, which \u201crequires the taxpayer to pay the amount of the disputed tax and sue the State for its recovery ... is [the] appropriate procedure for a taxpayer who seeks to test the constitutionality of a statute or its application to him.\u201d); 47th Street Photo, Inc. v. Powers, 100 N.C. App. 746, 749, 398 S.E.2d 52, 54 (1990) (\u201ca constitutional defense to a tax does not exempt a plaintiff from the mandatory procedure for challenging the tax set out in \u00a7 105-267\u201d), disc. review denied, 329 N.C. 268, 407 S.E.2d 835 (1991).\nWhen construed liberally, in accordance with his pro se status, Javurek\u2019s petition could be viewed as a request for an order requiring the Board to act on his petition. His \u201cRequest for Judicial Review, Writ of Prohibition and Order of Judgment\u201d was brought under a provision of the Administrative Procedure \u00c1ct (\u201cAPA\u201d), which provides in part: \u201cUnreasonable delay on the part of any agency ... in taking any required action shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency . . . .\u201d N.C. Gen. Stat. \u00a7 150B-44 (2003). When, however, the Board issued its decision on his administrative petition on 15 October 2002, the action became moot. See In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977) (appeal is moot \u201c[w]hen events occur during the pendency of [the] appeal which cause the underlying controversy to cease to exist[.]\u201d).\nMoreover, Javurek did not merely seek an order compelling action by the Board on his petition for review. Instead, he sought an order divesting the Board of jurisdiction and prohibiting any further action by the Secretary of Revenue regarding the assessments. Such an action is expressly forbidden by N.C. Gen. Stat. \u00a7 105-267 (\u201cNo 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 [\u201cLevy of Taxes\u201d].\u201d). Our Supreme Court has held that \u201c[s]ection 105-267 . . . bars courts absolutely from entertaining suits of any kind brought for the purpose of preventing the collection of any tax imposed in Subchapter I [\u201cLevy of Taxes\u201d].\u201d Bailey v. State, 330 N.C. 227, 242, 412 S.E.2d 295, 304 (1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 547, 112 S. Ct. 1942 (1992), overruled on other grounds by Bailey v. State, 348 N.C. 130, 500 S.E.2d 54 (1998).\nFinally, Javurek also appears to argue that the statutory procedures set out in N.C. Gen. Stat. \u00a7 105-241.1 et seq. and N.C. Gen. Stat. \u00a7 105-267 are unconstitutional because they do not provide for a hearing before the taxpayer must pay the tax. The Supreme Court has already rejected this contention: \u201cThis statute [N.C. Gen. Stat. \u00a7 105-267] permitting payment to be made under protest with a right to bring an action to recover the monies so paid is constitutional and accords the taxpayer due process.\u201d Kirkpatrick v. Currie, 250 N.C. 213, 215, 108 S.E.2d 209, 210 (1959). The Supreme Court\u2019s reasoning compels the conclusion that the procedures set out in N.C. Gen. Stat. \u00a7 105-241.1 et seq., which also require payment of the tax before filing suit, likewise do not offend due process.\nIn conclusion, because Javurek did not comply with the procedures prescribed by N.C. Gen. Stat. \u00a7 105-241.3, \u00a7 105-241.4, or \u00a7 105-267, the superior court lacked subject matter jurisdiction over the civil action. Therefore, we affirm the trial court\u2019s order denying Javurek\u2019s motion for summary judgment and dismissing the action. Our disposition of this case renders unnecessary any consideration of Javurek\u2019s remaining assignments of error.\nAffirmed.\nJudges BRYANT and ELMORE concur.\n. Javurek also argues that the trial court erred in allowing the Board to raise the issue of subject matter jurisdiction for the first time at the summary judgment stage. Because the question of subject matter jurisdiction may be raised at any time, Vance Constr. Co. v. Duane White Land Corp., 127 N.C. App. 493, 494, 490 S.E.2d 588, 589 (1997), this argument is without merit.\n. It is also questionable whether this action could be construed to be an appeal from the Board\u2019s dismissal of his petition for review since Javurek filed this action over two months before the Board\u2019s decision was rendered.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "' James Leslie Javurek, pro se, petitioner-appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Michael D. Youth, for respondent-appellee." ], "corrections": "", "head_matter": "JAMES LESLIE JAVUREK, Petitioner v. TAX REVIEW BOARD DEPARTMENT OF STATE TREASURER, NORTH CAROLINA, Respondent\nNo. COA03-1016\n(Filed 17 August 2004)\nTaxation\u2014 challenge to income tax assessment \u2014 failure to pay tax or file bond \u2014 no subject matter jurisdiction\nThe trial court properly concluded that it lacked subject matter jurisdiction over a challenge to an income tax assessment where plaintiff did not first pay the tax or file a bond, as required by statute. N.C.G.S. \u00a7 105-241.3.\nAppeal by petitioner from order entered 30 January 2003 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 April 2004.\n' James Leslie Javurek, pro se, petitioner-appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Michael D. Youth, for respondent-appellee." }, "file_name": "0834-01", "first_page_order": 866, "last_page_order": 873 }