27-77-13 - Commission's orders pursuant to Section 27-77-9, 27-77-11 or 27-77-12 final unless appealed to chancery court; petition; review by chancery court; appeal to Supreme Court from order of chan - Mississippi Statutes

§ 27-77-13. Commission's orders pursuant to Section 27-77-9, 27-77-11 or 27-77-12 final unless appealed to chancery court; petition; review by chancery court; appeal to Supreme Court from order of chancery court.
 

[Until July 1, 2010, this section will read:]
 

(1)  The order of the commission entered in accordance with Section 27-77-9, 27-77-11 or 27-77-12, shall be final unless the permittee, IFTA licensee, tag holder, or title interest holder of the permit, IFTA license, tag or title in regard to which action was taken in the order shall, within thirty (30) days from the date of the order, file a petition in the chancery court seeking a review of the order. The petition shall be filed against the State Tax Commission and shall contain a concise statement of the facts as contended by the petitioner, identify the order from which the appeal is being taken and the type of relief sought. The petition shall also contain a certificate that the petitioner has paid to the commission secretary the estimated cost of the preparation of the entire record of the commission on the matter for which a review is sought. 

(2)  A petition under subsection (1) of this section shall be filed in the chancery court of the county or judicial district in which the petitioner has a place of business or in the First Judicial District of Hinds County, Mississippi; however, a resident petitioner may file a petition in the chancery court of the county or judicial district in which he is a resident. 

(3)  The review by the chancery court of the order of the commission on a petition filed under subsection (1) of this section shall be based on the record made before the commission. Before filing a petition under subsection (1) of this section, the petitioner shall obtain from the commission secretary an estimate of the cost to prepare the entire record of the commission and shall pay to the commission secretary the amount of the estimate. If, upon the preparation of the record, it is determined that the estimate paid was insufficient to pay the actual cost of the preparation of the record, the commission secretary shall mail to the petitioner a written notice of the deficiency. The petitioner shall pay the deficiency to the commission secretary within thirty (30) days from the date of this written notice. If upon the preparation of the record, it is determined that the estimate paid by the petitioner exceeds the actual cost of the preparation of the record, the commission secretary shall remit to the petitioner the amount by which the estimate paid exceeds the actual cost. The chancery court shall dismiss with prejudice any petition filed where it is shown that the petitioner failed to pay prior to filing the petition the estimated cost for preparation of the record of the commission or failed to pay any deficiency in the estimate within thirty (30) days of a notice of deficiency. 

(4)  Upon the filing of the petition under subsection (1) of this section, the clerk of the court in which the petition is filed shall issue a summons to the State Tax Commission requiring the commission to answer or otherwise respond to the petition within thirty (30) days of service. The summons shall be served on the State Tax Commission by personal service on the commissioner as the chief executive officer of the State Tax Commission. 

(5)  Upon the filing of an answer and/or response by the State Tax Commission to the petition filed under subsection (1) of this section, and upon the filing of the record made before the commission with the clerk of the court, the chancery court shall, upon the motion of either party, establish a schedule for the filing of briefs in the action. The scope of review of the chancery court in an action filed under subsection (1) of this section shall be limited to a review of the record made before the commission to determine if the action of the commission is unlawful for the reason that it was: 

(a) Not supported by substantial evidence; 

(b) Arbitrary or capricious; 

(c) Beyond the power of the commission to make; or 

(d) In violation of some statutory or constitutional right of the petitioner. 

(6)  No relief shall be granted based upon the chancery court's finding of harmless error by the commission in complying with any procedural requirement; however, in the event that there is a finding of prejudicial error in the proceedings, the cause shall be remanded to the commission for a rehearing consistent with the findings of the court. 

(7)  The State Tax Commission, the petitioner, or both, shall have the right to appeal from the order of the chancery court to the Supreme Court as in other cases. 
 

[From and after July 1, 2010, this section will read:]

(1)  The findings and order of the Board of Tax Appeals entered in accordance with Section 27-77-9, 27-77-11 or Section 27-77-12, shall be final unless the agency or the permittee, IFTA licensee, tag holder, or title interest holder of the permit, IFTA license, tag or title in regard to which action was taken in the order shall, within thirty (30) days from the date of the order, file a petition in chancery court seeking a review of the order. If a petition under this subsection is filed by the permittee, IFTA licensee, tag holder or title interest holder, the petition shall be filed against the agency as respondent. If a petition under this subsection is filed by the agency, the petition shall be filed against the permittee, IFTA licensee, tag holder or title interest holder of the permit, IFTA license, tag or title which is the subject of the order sought to be reviewed as respondent. The respondent to a petition has thirty (30) days from the date of service of the petition to file a cross-appeal. The petition shall contain a concise statement of the facts as contended by the petitioner, identify the order from which the appeal is being taken and the type of relief sought. Where the petition is being filed by a permittee, IFTA licensee, tag holder or title interest holder, the petition shall also contain a certificate that the petitioner has paid to the executive director the estimated cost of the preparation of the entire record of the Board of Tax Appeals on the matter for which a review is sought. 

(2)  A petition under subsection (1) of this section shall be filed in the chancery court of the county or judicial district in which the permittee, IFTA licensee, tag holder or title interest holder of the permit, IFTA license, tag or title which is the subject of the order of the Board of Tax Appeals sought to be reviewed has a place of business or in the First Judicial District of Hinds County, Mississippi; however, a resident permittee, IFTA licensee, tag holder or title interest holder may file a petition in the chancery court of the county or judicial district in which he is a resident. If both the agency and the permittee, IFTA licensee, tag holder or title interest holder file a petition under subsection (1) of this section, the appeals shall be consolidated and the chancery court where the first petition was filed shall have jurisdiction over the consolidated appeal. If it cannot be determined which petition was filed first, the chancery court where the permittee, IFTA licensee, tag holder or title interest holder filed his petition shall have jurisdiction over the consolidated appeal. 

(3)  The review by the chancery court of the order of the Board of Tax Appeals on a petition filed under subsection (1) of this section shall be based on the record made before the Board of Tax Appeals. Before filing a petition under subsection (1) of this section, a petitioner, who is a permittee, IFTA licensee, tag holder or title interest holder, shall obtain from the executive director an estimate of the cost to prepare the entire record of the Board of Tax Appeals and shall pay to the executive director the amount of the estimate. If, upon the preparation of the record, it is determined that the estimate paid was insufficient to pay the actual cost of the preparation of the record, the executive director shall mail to the petitioner a written notice of the deficiency. The petitioner shall pay the deficiency to the executive director within thirty (30) days from the date of this written notice. If upon the preparation of the record, it is determined that the estimate paid by the petitioner exceeds the actual cost of the preparation of the record, the executive director shall remit to the petitioner the amount by which the estimate paid exceeds the actual cost. The chancery court shall dismiss with prejudice any petition filed by a permittee, IFTA licensee, tag holder or title interest holder where it is shown that the petitioner failed to pay prior to filing the petition the estimated cost for preparation of the record of the Board of Tax Appeals or failed to pay any deficiency in the estimate within thirty (30) days of a notice of deficiency. Where the agency files a petition under subsection (1) of this section, the agency shall pay the cost of the preparation of the entire record of the Board of Tax Appeals on the matter for which a review is sought. Where both the agency and the permittee, IFTA licensee, tag holder or title interest holder file a petition under subsection (1) of this section from the same Board of Tax Appeals order, the executive director shall remit to the permittee, IFTA licensee, tag holder or title interest holder that filed the petition the amount by which, if any, the payment received from this permittee, IFTA licensee, tag holder or title interest holder for preparation of the record exceeds one-half (1/2) of the actual cost of preparation of the record. The other half of the actual cost of preparation of the record in this situation shall be paid by the agency. 

(4)  Upon the filing of the petition under subsection (1) of this section, the clerk of the court in which the petition is filed shall issue a summons to the respondent requiring the respondent to answer or otherwise respond to the petition within thirty (30) days of service. Where the agency is the respondent, the summons shall be served on the agency by personal service on the commissioner as the chief executive officer of the agency. 

(5)  Upon the filing of an answer and/or response to the petition filed under subsection (1) of this section, and upon the filing of the record made before the Board of Tax Appeals with the clerk of the court, the chancery court shall, upon the motion of either party, establish a schedule for the filing of briefs in the action. The scope of review of the chancery court in an action filed under subsection (1) of this section shall be limited to a review of the record made before the Board of Tax Appeals to determine if the action of the Board of Tax Appeals is unlawful for the reason that it was: 

(a) Not supported by substantial evidence; 

(b) Arbitrary or capricious; 

(c) Beyond the power of the Board of Tax Appeals to make; or 

(d) In violation of some statutory or constitutional right of the petitioner. 

(6)  No relief shall be granted based upon the chancery court's finding of harmless error by the Board of Tax Appeals in complying with any procedural requirement; however, in the event that there is a finding of prejudicial error in the proceedings, the cause shall be remanded to the Board of Tax Appeals for a rehearing consistent with the findings of the court. 

(7)  The respondent, the petitioner, or both, shall have the right to appeal from the order of the chancery court to the Supreme Court as in other cases. 
 

Sources: Laws, 2005, ch. 499, § 7; Laws, 2007, ch. 400, § 4; Laws, 2009, ch. 492, § 119, eff from and after July 1, 2010.