ORDERS:
ORDER OF DISMISSAL
STATEMENT
OF THE CASE
This
matter is before me on a request for contested case hearing filed with the
Administrative Law Court (ALC or Court) by Respondent on December 21, 2007.
Respondent is contesting the South Carolina Department of Revenue's (Department)
Final Department Determination that Respondent violated S.C. Code Ann. §
61-4-580 (5) (Supp. 2006) by permitting an act upon its premises that
constituted a crime. A hearing is scheduled to be held concerning this matter
on March 12, 2008 at the offices of the Administrative Law Court. However, the
Department of Revenue (Department) filed a Motion to Dismiss on January 10,
2008.
LEGAL ANALYSIS
The
Department argues that Respondent failed to timely file its request for a
contested case hearing before the ALC. Rule 11 of the Rules of Procedure for
the Administrative Law Court provides that: “Unless otherwise provided by
statute, a request must be filed and served within thirty (30) days after
actual or constructive notice of the agency’s determination.” S.C. Code Ann. §
12-60-460 (Supp. 2007) sets forth:
Upon exhaustion of his
prehearing remedy, a taxpayer may seek relief from the department's
determination by requesting a contested case hearing before the Administrative
Law Judge Division. This request must be made within thirty days after the
date the department's determination was sent by first class mail or delivered
to the taxpayer. Requests for a hearing before the Administrative Law Judge
Division must be made in accordance with its rules.
(Emphasis
added). ALC Rule 4
(B) further provides that “[t]he date of the filing is the date of delivery or
the date of mailing.” Therefore, Respondent's request for relief had to be mailed
or delivered to the Court within thirty (30) days after the date the
Department's decision letter was mailed to Respondent or delivered to
Respondent via other means.
In support
of its Motion, the Department filed an affidavit by Jean M. O’Conner setting
forth that on October 25, 2007 the Department mailed its decision in this
matter to Respondent’s attorney at the address provided in the South Carolina
Bar’s Lawyer’s Desk Book. However, Respondent’s request for a contested case
hearing was not mailed to the ALC until December 21, 2007.
Respondent has not filed a response to the Department’s contentions. See ALC Rule 19 (A).
ALC Rule
11 and Section 12-60-460 set forth a fixed period of time by which an
individual can seek contested case review of a Final Department Determination. “A
statute of limitations has been defined as the action of the state in
determining that after the lapse of a specified time a claim shall not be
enforceable in a judicial proceeding. Thus, any law which creates a condition
of the enforcement of a right to be performed within a fixed time may be
defined as a statute of limitations.” 51 Am. Jur. 2d Limitation of Actions § 2 (1970). Furthermore,
[t]here has been some difference of
opinion among the authorities whether, at least in the absence of an expression
of the legislature in this particular respect, the running of a statute of
limitations operates to extinguish merely the remedy or to extinguish the
substantive right as well as the remedy. The general rule in this respect,
supported by the great preponderance of the authorities on the subject, is that
a statute of limitations operates on the remedy directly only and does not
extinguish the substantive right. Under this rule the courts have regarded
true statutes of limitation as doing no more than cut off resort to the courts
for enforcement of the substantive claim or right.
51 Am. Jur. 2d Limitation
of Actions § 22 (1970). Additionally, “[s]tatutes of limitations are not
simply technicalities. On the contrary, they have long been respected as
fundamental to a well-ordered judicial system.” City of North Myrtle Beach
v. Lewis-Davis, 360 S.C. 225, 231, 599 S.E.2d 462, 465 (Ct. App. 2004).
Moreover, this court has no authority to expand the time in which the request
for a hearing must be filed. See Mears v. Mears, 287 S.C.
168, 337 S.E.2d. 206 (1985).
Therefore,
Respondent’s failure to request a contested case hearing within thirty (30)
days after the mailing of the Department's decision letter bars the ALC’s determination
of the merits of this case. Based on the foregoing,
IT
IS HEREBY ORDERED that Respondent's contested case is dismissed with
prejudice.
AND
IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
January 24, 2008
Columbia, South Carolina
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