Kim v. Comptroller of Treasury

⁵³⁰ ELDRIDGE, Judge. In this case we review a decision by the Circuit Court for Anne Arundel County dismissing as premature a petition for judicial review of an order of the Maryland Tax Court. We shall reverse. I. The pertinent facts are relatively uncomplicated.

James Kim owned and operated a tavern on Fort Smallwood Road in Anne Arundel County and held an alcoholic beverage license for the property. As a result of financial losses incurred by the tavern, Kim decided to sell the business to The Red Rib, Ltd., and the real estate to G. Glenn Schiller. Because Schiller was a non-resident of Anne Arundel County and could not qualify for the transfer of the alcoholic beverage license, Kim agreed to sign a liquor license application as Vice President of The Red Rib, Ltd., thereby qualifying it as a corporate applicant. Apparently the business failed to remit to the State sales and use taxes which it had collected.

Therefore, the Comptroller levied an assessment against Kim, as an officer of the corporation, in the amount of $16,417.06, pursuant to Maryland Code (1988, 1997 Repl.Vol.), § 11-601 of the Tax-General Article. Section ll-601(d)(l)(i) provides for personal liability on the part of the “president, vice president or treasurer” of a corporation which fails to remit sales and use taxes to the Comptroller. Kim contested the assessment in the Maryland Tax Court, which affirmed the assessment. Kim argued in the Tax Court that he should not be subject to personal liability under § 11-601(d)(1)® because he was not really the vice president of the corporation although he did sign the liquor license application in that capacity as an accommodation to Schiller.

At the conclusion of a hearing held on December 6,1995, the judge of ⁵³¹ the Tax Court orally ruled that the assessment was proper but that the penalties should be waived. The judge also directed the Assistant Attorney General representing the Comptroller to prepare a written order to that effect. On December 11, 1995, Kim filed in the Circuit Court for Anne Arundel County a petition for judicial review of the Tax Court’s decision. The petition requested “judicial review of the oral denial of appeal ... made by [the Tax Court] on December 6, 1995.” Subsequently, on December 18, 1995, the Tax Court entered its written order “that the assessment levied by the Comptroller, including interest, be and the same is hereby AFFIRMED.

Penalty is to be abated.” Kim then filed in the circuit court, on January 17, 1996, a memorandum in support of his petition for judicial review. This memorandum was captioned “Petition of James Kim ... For Judicial Review of the Decision of the Maryland Tax Court in the case of: James Kim ... vs. Comptroller of the Treasury.” Finally, on January 22, 1996, the Comptroller filed its response to Kim’s petition for judicial review and a motion to dismiss the petition as premature because it was filed before entry of the Tax Court’s written order. The Comptroller relied on cases dealing with premature appeals from trial courts to appellate courts. 1 After a hearing, the circuit court granted the Comptroller’s motion to dismiss Kim’s judicial review action as premature.

The circuit court, relying upon Rohrbeck v. Rohrbeck, 318 Md. 28 , 566 A.2d 767 (1989), concluded that the final order by the Tax Court was entered on December 18, 1995, when the written order was filed, and not when the Tax Court judge ⁵³² ruled from the bench. In Rohrbeck, 318 Md. at 42 , 566 A.2d at 774 , we stated that “whenever the court, whether in a written opinion or in remarks from the bench, indicates that a written order embodying the decision is to follow, a final judgment does not arise prior to the signing and filing of the anticipated order unless (1) the court subsequently decides not to require the order and directs the entry of judgment in some other appropriate manner or (2) the order is limited to be collateral to the judgment.” The circuit court concluded, therefore, that the request for judicial review filed by Kim on December 11, 1995, was premature, and dismissed the judicial review action, stating that “[sjince no petition for judicial review was filed subsequent to December 18,1995, the matter has not been appealed from the administrative agency.” Kim appealed, and this Court issued a writ of certiorari before consideration of the case by the Court of Special Appeals. Kim, Red Rib Ltd. v. Comptroller, 344 Md. 328 , 686 A.2d 634 (1996).

II

Judicial review of decisions of the Maryland Tax Court is statutorily authorized by Code (1988, 1997 Repl.Vol.), § 13-532(a)(1) of the Tax-General Article, which states that “[a] final order of the Tax Court is subject to judicial review as provided for contested cases in §§ 10-222 and 10-223 of the State Government Article.” 2 The procedures for bringing a judicial review action from the Tax Court are contained in Maryland Rules 7-201 et seq. Rule 7-203(a) specifies the time for filing a statutorily authorized judicial review action, stating as follows: ⁵³³ “Except as otherwise provided in this Rule or by statute, a petition for judicial review shall be filed within 30 days after the latest of: “(1) the date of the order or action of which review is sought; “(2) the date the administrative agency sent notice of the order or action to the petitioner, if notice was required by law to be sent to the petitioner; or “(3) the date the petitioner received notice of the agency’s order or action, if notice was required by law to be received by the petitioner.” In the instant case, the Tax Court was required by law to send its written order to Kim and the Comptroller. Section 13-529 of the Tax-General Article states as follows: “(a) In each appeal, the Tax Court shall issue a written order that sets forth its decision. “(b) Each order of the Tax Court shall be filed with its clerk. “(c) The clerk of the Tax Court shall certify the order in an appeal and mail a copy of the certified order to: “(1) each party to the appeal; and “(2) the tax determining agency from which the appeal is taken.” Therefore, under the statute and Rule 7-203(a)(2), the relevant date governing the timeliness of an action for judicial review was the date the written order of the Tax Court was filed and mailed to the parties. Although it is somewhat unclear from the record, it appears that the written order was mailed to Kim on December 18, 1995, the day the order was entered.

Thus, Kim’s petition for judicial review should have been filed within 30 days after December 18,1995. We agree with the circuit court that the final agency action subject to judicial review was the entry and mailing of the written order on December 18, 1995. As indicated previously, under § 13-532(a)(l) of the Tax-General Article, only a final order of the Tax Court is subject to judicial review. ⁵³⁴ Ordinarily an agency order is not final when it is contemplated that there is more for the agency to do. Holiday Spas v. Montgomery County, 315 Md. 390, 396 , 554 A.2d 1197, 1200 (1989).

See also Maryland Comm’n on Human Rel. v. B.G. & E. Co., 296 Md. 46, 56-57 , 459 A.2d 205, 211-212 (1983). In the instant case, the Tax Court’s December 6, 1995, ruling from the bench was not a final order because more remained for the Tax Court to do, such as filing a written order and mailing it to the parties. Kim should have waited to file his petition for judicial review until all these steps were completed and the Tax Court’s order became final.

III

Contrary to the position of the circuit court, however, we do not believe that the prematurity determination completes the analysis of this case. For the reasons set forth below, the circuit court erred in dismissing the action for judicial review. A. Both the circuit court and the Comptroller improperly relied upon decisions dealing with the effect of the premature filing of an appeal. Although often misinterpreted to be an appeal, this Court has repeatedly emphasized that an action for judicial review of an administrative decision is an original action.

It is not an appeal. See, e.g., Driggs Corp. v. Maryland Aviation, 348 Md. 389, 399 , 704 A.2d 433, 438 (1998) (“As we have made clear, a petition for judicial review of an administrative order invokes the original, not the appellate, jurisdiction of the circuit court”). See also, e.g., Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 493-496 , 693 A.2d 757, 765-767 (1997), cert. denied, — U.S.-, 118 S.Ct. 702 , 139 L.Ed.2d 645 (1998), and eases there cited; Shell Oil Co. v. Supervisor, 276 Md. 36, 43-47 , 343 A.2d 521, 525-528 (1975) (because the Tax Court is an administrative agency exercising quasi-judicial functions, “review of a Tax Court decision is an exercise of original and not appellate judicial jurisdiction”). ⁵³⁵ Because judicial review is an original action and not an appeal, the Comptroller’s and the circuit court’s reliance on cases dealing with the premature filing of appeals was inappropriate. The time requirements for filing appeals are ordinarily treated as jurisdictional in nature.

See, e.g., Blake v. Blake, 841 Md. 326 , 338, 670 A.2d 472, 478 (1996), quoting Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 , 108 S.Ct. 1717, 1722 , 100 L.Ed.2d 178, 185 (1988), (“ ‘The time of appealability [has] jurisdictional consequences’ ”); Dabrowski v. Dondalski, 320 Md. 392, 398 , 578 A.2d 211, 214 (1990); Walbert v. Walbert, 310 Md. 657, 662 , 531 A.2d 291, 293 (1987), quoting Houghton v. County Comm’rs of Kent County, 305 Md. 407, 413 , 504 A.2d 1145, 1148 (1986) (“We have repeatedly stated that the timeliness of an order of appeal is ‘jurisdictional,’ and that if an appeal is not filed within the prescribed time, ‘the appellate court acquires no jurisdiction and the appeal must be dismissed’ ”), and cases there cited. Therefore this Court has held, absent a special statute or rule dealing with the matter, that a prematurely filed appeal must be dismissed by an appellate court because the appellate court has no jurisdiction over the matter. See, e.g., Makovi v. Shenuin-Williams Co., 311 Md. 278, 282-283 , 533 A.2d 1303, 1305 (1987); Blucher v. Ekstrom, 309 Md. 458, 463 , 524 A.2d 1235, 1237 (1987) (“Under a long line of this Court’s decisions, when an order of appeal is filed before the appealable judgment, the order of appeal is of no force and effect. There must still be an order of appeal filed after the appealable judgment to confer appellate jurisdiction ”) (emphasis added); Md.-Nat’l Cap.

P. & P. Comm’n v. Crawford, 307 Md. 1 , 38 n. 17, 511 A.2d 1079 , 1098 n. 17 (1986) (a “premature ... order of appeal would ... not confer appellate jurisdiction”). 3 The same cannot be said, however, of a prematurely filed petition for judicial review, because the time requirements for filing a petition