K-Kel, Inc. v. Nev. Dep't of Taxation
K-Kel, Inc. v. Nev. Dep't of Taxation
Opinion of the Court
*16In this appeal, we consider whether the district court erred in denying appellants' petitions for judicial review challenging a decision by the Nevada Tax Commission regarding a tax refund request. This court in Deja Vu Showgirls of Las Vegas , LLC v. Nevada Department of Taxation (Deja Vu I) held that "the sole remedy for a taxpayer aggrieved by a final decision from the Commission concerning a tax refund request under NRS Chapter 368A is to file a petition for judicial review pursuant to NRS 233B.130."
FACTUAL AND PROCEDURAL HISTORY
Appellants are exotic dancing establishments challenging the constitutionality of Nevada's Live Entertainment Tax (NLET).
In 2008, appellants filed a second de novo action (Case 2) in the district court, challenging the administrative denials of their refund requests. In 2011, the district court dismissed appellants' Case 2 de novo action for lack of subject matter jurisdiction because appellants failed to file a petition for judicial review, as required by Nevada's Administrative Procedure Act (APA).
In compliance with the district court's order, appellants filed a petition for judicial review (Case 3) on September 23, 2011. Thereafter, appellants moved the district court for permission to present additional evidence to the Commission in order to supplement the administrative record. The district court granted the motion and remanded the matter to the Commission to review the additional evidence and determine whether such evidence warranted any change to the Commission's October 12, 2007, decision. The Commission in turn remanded the matter to an administrative law judge (ALJ) to "determine whether the findings of fact, conclusions of law, and final decision issued in 2007 should be amended, reversed, or affirmed." On remand, the ALJ affirmed the Commission's October 12, 2007, final decision. Thereafter, in a decision letter dated February 12, 2014, the Commission affirmed the ALJ's decision affirming the Commission's October 12, 2007, final decision.
On March 11, 2014, appellants filed a second petition for judicial review (Case 4), challenging the Commission's February 12, 2014, decision. Thereafter, the district court consolidated the Case 3 and Case 4 petitions for *17judicial review. On June 23, 2016, the district court issued an order affirming the Commission's October 12, 2007, and February 12, 2014, decisions and denying the consolidated petitions for judicial review. This appeal follows.
DISCUSSION
In addressing the district court's order denying appellants' consolidated petitions for judicial review, we must first consider the threshold issue of jurisdiction raised by respondents. We conclude that appellants' Case 3 petition for judicial review was not timely filed, and therefore, the district court lacked jurisdiction to consider appellants' Case 3 petition. Consequently, the district court did not have authority to grant appellants an additional 30 days to refile, nor did it have authority to remand the matter to the Commission for consideration of additional evidence. We further conclude the Commission's decision on remand was necessarily void, and therefore the district court lacked authority to consider the merits of appellants' Case 4 petition.
The district court lacked jurisdiction to consider appellants' petitions for judicial review
Respondents argue that the district court did not have jurisdiction to consider appellants' Case 3 petition for judicial review, and thus, this entire case should be disposed of on jurisdictional grounds. In response, appellants contend the district court had jurisdiction to consider their Case 3 and Case 4 petitions for judicial review because (1) their Case 2 de novo action was timely filed, and the district court allowed them to refile the action as the Case 3 petition for judicial review to cure any deficiency; and (2) the Commission entered a subsequent order on February 12, 2014, from which they timely filed their Case 4 petition for judicial review. We agree with respondents.
"Courts have no inherent appellate jurisdiction over official acts of administrative agencies except where the [L]egislature has made some statutory provision for judicial review." Crane v. Cont'l Tel. Co. of Cal. ,
This matter is analogous to Otto,
On appeal, this court held that a party must strictly comply with the APA's pleading requirements, and because the original petition did not name all of the parties of record to the administrative proceedings, the district court lacked jurisdiction to consider Washoe County's original petition for judicial review.
Here, like in Otto, this court has held that the district court lacked jurisdiction to consider appellants' original Case 2 action because it did not comply with the APA. Specifically, in Deja Vu I, this court affirmed the district court's dismissal of appellants'
*18Case 2 action "because appellants failed to follow proper procedure when they filed a de novo action in the district court ... rather than filing a petition for judicial review as required by NRS 233B.130," and therefore, the district court lacked jurisdiction to consider the original Case 2 action.
Moreover, because appellants' Case 3 petition failed to invoke the district court's jurisdiction, the district court's subsequent orders in that action are necessarily void. See State Indus. Ins. Sys. v. Sleeper,
CONCLUSION
We conclude the district court lacked jurisdiction to consider appellants' Case 3 petition for judicial review, and thus lacked the authority to consider the merits of appellants' Case 4 petition, and we therefore vacate the district court's order denying appellants' consolidated petitions for judicial review and remand the matter to the district court with directions to dismiss the petitions for lack of jurisdiction.
We concur:
Douglas, C.J.
Cherry, J.
Gibbons, J.
Pickering, J.
Hardesty, J.
Stiglich, J.
This appeal involves the same parties as the appeals in Deja Vu I,
Appellants' challenge to the resolution of their Case 1 claims is addressed in Deja Vu II,
Appellants' challenge to the district court's dismissal of their Case 2 de novo action is addressed in Deja Vu I ,
A petition for judicial review must "[n]ame as respondents the agency and all parties of record to the administrative proceeding." NRS 233B.130(2)(a).
Pursuant to NRS 233B.130(2)(d), a petition for judicial review must "[b]e filed within 30 days after service of the final decision of the agency."
The parties dispute whether NRS 233B.130(2)'s 30-day time limit or NRS 368A.290's 90-day time limit applies to petitions for judicial review from a decision of the Commission involving a tax refund request under NRS Chapter 368A. Appellants' Case 3 petition for judicial review was not filed within the statutory time limit set forth in either NRS Chapter 233B or NRS Chapter 368A, and therefore, we need not address the issue.
Appellants also argue that (1) the NLET violates the Nevada and United States Constitutions; (2) the United States Supreme Court's decision in Reed v. Town of Gilbert, --- U.S. ----,
Reference
- Full Case Name
- K-KEL, INC., d/b/a Spearmint Rhino Gentlemen's Club Olympus Garden, Inc., d/b/a Olympus Garden Shac, LLC, d/b/a Sapphire D. Westwood, Inc., d/b/a Treasures The Power Company, Inc., d/b/a Crazy Horse Too Gentlemen's Club v. The STATE of Nevada DEPARTMENT OF TAXATION and Nevada Tax Commission
- Cited By
- 1 case
- Status
- Published