{ "id": 8204348, "name": "WILLIAM ALEXANDER RICHARDS, JR., Petitioner v. NORTH CAROLINA TAX REVIEW BOARD, and E. NORRIS TOLSON, SECRETARY OF REVENUE, NORTH CAROLINA DEPARTMENT OF REVENUE, Respondents", "name_abbreviation": "Richards v. North Carolina Tax Review Board", "decision_date": "2007-06-05", "docket_number": "No. COA06-1364", "first_page": "485", "last_page": "488", "citations": [ { "type": "official", "cite": "183 N.C. App. 485" } ], "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": "616 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633593 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "580" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0576-01" ] }, { "cite": "612 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632800 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0321-01" ] }, { "cite": "359 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632800, 12632801, 12632802, 3797732, 3793990, 3803693, 3804429, 3799921, 3793971, 3799381, 3800918, 3798330 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0321-01", "/se2d/612/0322-01", "/se2d/612/0322-02", "/nc/359/0411-06", "/nc/359/0411-08", "/nc/359/0411-01", "/nc/359/0411-02", "/nc/359/0411-05", "/nc/359/0411-09", "/nc/359/0411-07", "/nc/359/0411-04", "/nc/359/0411-03" ] }, { "cite": "2005 WL 589835", "category": "reporters:specialty_west", "reporter": "WL", "year": 2005, "opinion_index": 0 }, { "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", "weight": 3, "year": 1997, "pin_cites": [ { "page": "716" }, { "page": "716" }, { "parenthetical": "citation omitted" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0255-01" ] }, { "cite": "172 N.C. App. 772", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321446 ], "year": 2005, "pin_cites": [ { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0772-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-241.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2005, "opinion_index": 0 }, { "cite": "605 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "2" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 834", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000344 ], "year": 2004, "pin_cites": [ { "page": "836" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0834-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-241.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-267", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2005, "pin_cites": [ { "page": "258" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 405, "char_count": 7255, "ocr_confidence": 0.74, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39440658509434334 }, "sha256": "57c83fa9d04b1fe454a85f1b93207f70027c5e878bdb4ba49583508afdd376d2", "simhash": "1:8d17d40810fba890", "word_count": 1143 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STROUD concur.." ], "parties": [ "WILLIAM ALEXANDER RICHARDS, JR., Petitioner v. NORTH CAROLINA TAX REVIEW BOARD, and E. NORRIS TOLSON, SECRETARY OF REVENUE, NORTH CAROLINA DEPARTMENT OF REVENUE, Respondents" ], "opinions": [ { "text": "McCullough, Judge.\nPetitioner appeals from a trial court order granting respondents\u2019 motion to dismiss. We affirm.\nFACTS\nWilliam Alexander Richards, Jr. (\u201cpetitioner\u201d) was convicted by a jury of trafficking marijuana by manufacture, possession and transportation. Based on petitioner\u2019s possession of 64,864 grams of marijuana, the Department of Revenue gave petitioner notice that he owed unauthorized substance excise tax and penalty in the amount of $317,833.60, plus interest.\nPetitioner objected to the assessment and requested a hearing before the Secretary of Revenue. A hearing was conducted by the Assistant Secretary of Revenue who issued a final decision upholding the assessment. Petitioner filed a petition seeking administrative review of the final decision of the Assistant Secretary of Revenue. The Tax Review Board held a hearing and issued a decision affirming the final decision of the Assistant Secretary. Then, petitioner filed for judicial review and an alternative complaint for declaratory judgment in the Superior Court of Buncombe County. The North Carolina Tax Review Board and E. Norris Tolson, Secretary of Revenue for the North Carolina Department of Revenue (\u201crespondents\u201d) filed a motion to dismiss on the ground, inter alia, that the superior court lacked subject matter jurisdiction. The trial court granted respondents\u2019 motion to dismiss for lack of subject matter jurisdiction. Petitioner appeals.\nI.\nPetitioner contends the trial court erred in granting respondents\u2019 motion to dismiss. We disagree.\nOur General Assembly has prescribed two avenues by which a taxpayer may appeal from an administrative assessment of taxes: N.C. Gen. Stat. \u00a7 105-267 (2005) and N.C. Gen. Stat. \u00a7 105-241.1 to -241.4 (2005). See Javurek v. Tax Review Bd., 165 N.C. App. 834, 836, 605 S.E.2d 1, 2 (2004), appeal dismissed, 359 N.C. 411, 612 S.E.2d 321 (2005). Pursuant to N.C. Gen. Stat. \u00a7 105-267, a taxpayer may sue the Secretary of Revenue for a refund of a contested tax, but such a suit may be filed only after the taxpayer has first paid the tax in full. Id. Pursuant to N.C. Gen. Stat. \u00a7 105-241.1 to -241.2 (2005), a taxpayer may contest an assessment before the .Secretary of Revenue and an administrative review before the Tax Review Board. Id. Neither the hearing before the Secretary of Revenue, nor the administrative review before the Tax Review Board requires the taxpayer to pay the assessment in advance. N.C. Gen. Stat. \u00a7\u00a7 105-241.1(d) and -241.2(a). However, a taxpayer aggrieved by the decision of the Tax Review Board must pay, among other things, the tax in order to appeal the decision to the superior court. N.C. Gen. Stat. \u00a7 105-241.3 (2005).\nHere, petitioner opted to utilize N.C. Gen. Stat. \u00a7\u00a7 105-241.1 to -241.4 to contest the tax assessment at issue. Petitioner argues that, while \u201cNorth Carolina\u2019s pre-payment jurisdiction requirements are arguably constitutionally permissible as to those taxpayer individuals who have the ability to pre-pay the taxes at issue, . . . [the prepayment] requirements are clearly not constitutionally permissible as to those taxpayer individuals who do not have the ability to prepay the taxes at issue.\u201d Petitioner \u201ccontends the pre-payment requirements ... should be struck down [as violative of federal and state due process requirements] in those cases whefre] the taxpayer does not have the ability to pay the taxes at issue.\u201d\n\u201cOur Court has a duty to examine a statute and determine its constitutionality when the issue is properly presented, rather than to assume the role of policy maker, which has been entrusted by our Constitution to the legislature.\u201d State v. Whiteley, 172 N.C. App. 772, 778, 616 S.E.2d 576, 580 (2005). \u201cIn reviewing the constitutionality of statutes, \u2018[w]e presume that the statutes are constitutional, and resolve all doubts in favor of their constitutionality.\u2019 \u201d Id. (citation omitted).\nThis powerful presumption of constitutionality is sufficient, in our opinion, to withstand the accusation that this statute is unconstitutional as to taxpayers who cannot afford to pay their taxes. In a similar case, the issue presented by the plaintiff was \u201cwhether G.S. 105-267, when applied to the controlled substance tax procedure, . . . [was] constitutional.\u201d Salas v. McGee, 125 N.C. App. 255, 257, 480 S.E.2d 714, 716, disc. review denied, 345 N.C. 755, 485 S.E.2d 298 (1997). As already stated, N.C. Gen. Stat. \u00a7 105-267 requires the taxpayer to pay the tax prior to demanding a refund in superior court. In Salas, the \u201cplaintiffs did not pay, and stated they could not pay, the assessed tax and therefore they were unable to avail themselves of the procedures mandated in G.S. 105-267.\u201d Id. at 258, 480 S.E.2d at 716. We noted that \u201c \u2018[w]e are convinced this procedure comports with due process under the United States Supreme Court\u2019s jurisprudence on the subject as it relates to taxation. That Court has long held that postdeprivation remedies in the area of taxation can comport with due process.\u2019 \u201d Id. (citation omitted).\nIn addition, although not precedent, an unpublished opinion by our Court addressed the issue asserted by petitioner. See Skwerer v. N.C. Dep\u2019t of Revenue, No. COA04-674, 2005 WL 589835 (N.C. Ct. App. March 15, 2005). In the opinion, a plaintiff contended that \u201csection 105-241.3 is unconstitutional because it requires a taxpayer to pay the disputed tax prior to having judicial review over the taxpayer\u2019s obligation to pay the tax.\u201d Id. at *1. The plaintiff argued that since he \u201ccannot pay the tax assessed against him, . . . section 105-241.3 unconstitutionally restricts his access to the courts and deprives him of due process.\u201d Id. However, citing several cases including Salas, we stated that \u201cpayment of a tax prior to a court having subject matter jurisdiction to hear the matter has been determined to be constitutional.\u201d Id. In addition, we saw \u201cno 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. \u00a7 105-241.3, which also requires prepayment.\u201d Id.\nAccordingly, we disagree with petitioner. We hold that the prepayment requirement of N.C. Gen. Stat. \u00a7 105-241.3 is constitutional.\nAffirmed.\nJudges BRYANT and STROUD concur..", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Hyler & Lopez, P.A., by George B. Hyler, Jr., and Robert J. Lopez, for petitioner appellant.", "Attorney General Roy Cooper, by Assistant Attorney General Michael D. Youth, for respondent appellees." ], "corrections": "", "head_matter": "WILLIAM ALEXANDER RICHARDS, JR., Petitioner v. NORTH CAROLINA TAX REVIEW BOARD, and E. NORRIS TOLSON, SECRETARY OF REVENUE, NORTH CAROLINA DEPARTMENT OF REVENUE, Respondents\nNo. COA06-1364\n(Filed 5 June 2007)\nTaxation\u2014 excise tax \u2014 unauthorized substance \u2014 jurisdiction of superior court \u2014 payment of tax\nThe subject matter jurisdictional requirement of N.C.G.S. \u00a7 105-241.3 that a taxpayer pay a contested tax assessment in order to appeal a decision of the Tax Review Board to the superior court did not violate the due process rights of a taxpayer who did not have the ability to prepay an unauthorized substance (marijuana) excise tax.\nAppeal by petitioner from order entered 8 June 2006 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 26 April 2007.\nHyler & Lopez, P.A., by George B. Hyler, Jr., and Robert J. Lopez, for petitioner appellant.\nAttorney General Roy Cooper, by Assistant Attorney General Michael D. Youth, for respondent appellees." }, "file_name": "0485-01", "first_page_order": 517, "last_page_order": 520 }