Louisiana Parishes Don’t Have Home Court Advantage on Appeal

The BR State + Local Tax Spotlight

By Mitchell A. Newmark

We have so often heard adversaries incorrectly assert that their agencies can be judge and prosecutor in their own cause. The saying is as old as the hills that “no man shall be a judge in his own cause.” Exec. Comm’n on Ethical Standards v. Salmon, 295 NJ Super 86, 97 (N.J. Super. Ct. App. Div. 1996), citing Bonham's Case, 8 Co., 113 b, 118 a, 77 Eng. Rep. 646, 652 (K.B. 1610). We have also so often heard adversaries incorrectly assert that jurisdiction for an appeal is incorrect (or more offensive, when there were two potential places of jurisdiction and both were perfected, an adversary asserting in each jurisdiction that the other jurisdiction is the only correct one!). When Jefferson Parish, Louisiana, told the Louisiana Board of Tax Appeals (“BTA”) that the BTA could not fully hear a taxpayer’s appeal from an assessment of sales and use taxes by the Parish, the Board told the Parish to pound SALT. Kellogg Brown & Root, LLC v. Lopinto, No 22-C-204 (La. Ct. App. 5th Cir Nov. 2, 2022). The appellate court affirmed that the BTA is an independent reviewing body having de novo (anew) jurisdiction of all matters related to state and local taxes or fees. The BTA stands up for its jurisdiction and so should you.

The Facts: Kellogg Brown & Root, LLC (“KBR”) performed work for its client at its client’s ammonia factory in Jefferson Parish and purchased tangible personal property in connection with that work. The Parrish tax division audited and issued a proposed assessment. A hearing was timely requested and a Parrish-level hearing was held over three days. Following the protest hearing, a revised assessment was issued. KBR timely filed a petition for redetermination against the Sheriff and Ex-Officio Tax Collector for the Parish; the Parish Sherriff’s Office; and the Parish Bureau of Revenue and Taxation, Sales and Use Tax Division (collectively, the “Collector”) at the BTA.

The Collector filed exceptions asserting that the BTA’s jurisdiction had been improperly invoked. The Collector theorized that the BTA can only act as an appellate court when deciding an appeal for redetermination of an assessment under La. R.S. 47:337.51 (uniform local sales tax appeals procedures) when prior to the BTA a hearing had been held at the Parish protest level under La. R.S. 47:337.49 (protest to collector’s determination of tax due). At its essence, the Collector asserted that procedurally, KBR was not entitled to a trial de novo (anew) at the BTA because there was a Parrish-level protest hearing—that the BTA was to sit as an appellate court and review the record made at the Parrish level. The Local Tax Judge sitting for the Local Tax Division of the BTA explained the history and responsibilities of the BTA, found that the BTA is a trial court that hears appeals de novo, including appeals from Parish sales and use tax assessments.

The Decision: The Court of Appeal affirmed the BTA. Kellogg, slip op at 6. In so affirming the BTA, it also bolstered the BTA’s status as against naysaying Parishes by tracing the BTA’s authority in the Louisiana Constitution, in the Louisiana statutes, and through the BTA’s 80-year history. The Louisiana Legislature created the BTA as an independent agency to hear and decide questions of law and fact arising between taxpayers and tax collectors. The BTA has traditionally acted as a trial court. Further, the BTA’s decisions are reviewed by appellate courts with the type of deference that befits a decision from a trier of fact. The BTA is specifically given jurisdiction over “all matters related to state and local taxes or fees ….” Kellogg, quoting La Const. art V, Sec 35. Therefore, the Court of Appeal found that “the BTA must accept new evidence and hear testimony, like a trial court, in order to develop a sufficient record for review by a court of appeal.” Kellogg, slip op at 7. It would not surprise us if Jefferson Parish appeals to the Louisiana Supreme Court—at least for the Collector to be able to say it took it all the way. The Court of Appeals decision is thorough and well reasoned and should withstand further appeal if taken.

The Takeaway: Respect the protest-level hearings. However, know that you get a trial de novo at the BTA from Parish sales and use tax assessments.

This article is one in a series of articles written for the November 2022 edition of The BR State + Local Tax Spotlight.

© 2022 Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reprint. Notice: The purpose of this update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. This update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.