ORDERS:
ORDER
STATEMENT OF THE CASE
This matter came before the Court on February 10, 1998 on Respondents' appeal of a Final
Agency Determination of the South Carolina Department of Revenue ("Department") finding that
the Respondents violated the single place or premise provisions of the South Carolina Video Game
Machines Act.
This matter was set for a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310, et
seq., and 12-4-30(D) (Supp. 1997). Counsel for both parties were notified of the date, time, and
place of the hearing in this matter by a Notice of Hearing mailed by my office on November 14,
1997. Neither counsel for the Respondents nor the Respondents themselves appeared at the
designated time and place. Respondents at no time contacted the court to request a continuance or
to inform the court that they would not appear at the hearing on this matter. After waiting until ten
minutes beyond the scheduled time of the hearing for Respondents to make an appearance, the
hearing was commenced.
Prior to the presentation of its case, the Department motioned the court for dismissal of the
Respondents' appeal. This motion was based in part on allegations by the Department that this
tribunal lacks jurisdiction to hear this matter due to the Respondents' failure to make a timely appeal
of the final determination and proposed assessment of the Department under the Revenue Procedures
Act.
FINDINGS OF FACT
I make the following Findings of Fact based on a preponderance of the evidence:
1. The Department issued a final determination and proposed assessment on April 17, 1997
and mailed such by first class mail to the Respondents. This determination notified the Respondents
of the Department's intent to revoke twenty Class III COD licenses, that such revocation further
prohibited the Respondents from operating any Class III machines on the premises for six months
after such revocation, and imposed $5,000 fines against both Great Games and Choe In Ung. The
Determination further specifically detailed the Respondents' appeal process and stated that such
appeal needed to be made within thirty days of the date of the Determination.
2. Respondents' appeal of the proposed assessment and/or request for a contested case
hearing was due to be filed with the Department no later than May 17, 1997.
3. On June 11, 1997, having received no request for hearing or written protest from the
Respondents, the Department issued an assessment against the Respondents in the amount of
$5,000.00 each and served the assessment on the Respondents on that date.
4. On October 21, 1997, Counsel for the Respondents, Mr. John O'Day, notified the
Department that he was appealing the Final Determination and Assessment. Mr. O'Day stated in that
letter that the Respondents received the Department's assessment in this matter "on or about June or
July of 1997."
5. I find that the Respondents failed to make a timely appeal of the Department's Final
Determination or assessment in this matter.
CONCLUSIONS OF LAW
1. ALJD Rule 23 provides in relevant part that:
The administrative law judge may dismiss a contested case or dispose of a
contested case adverse to the defaulting party. A default occurs when a party fails
to plead or otherwise prosecute or defend, fails to appear at a hearing without the
proper consent of the judge or fails to comply with any interlocutory order of the
administrative law judge.
In the present case the Respondents failed to appear at the hearing in this matter without the consent
of the court. Dismissal of Respondents' appeal would therefore be proper under ALJD Rule 23.
However, I conclude that, as a matter of law, Respondents' appeal to this tribunal was untimely and
that this Court therefore lacks subject matter jurisdiction to hear the appeal brought by the
Respondents. The Department's Motion to Dismiss is therefore more properly granted for the
reasons stated below.
2. The procedure for appeals by taxpayers and license holders from final determinations of
the Department, including proposed and actual assessments of penalties, is provided in Subarticle
1, Article 5, Chapter 60 of Title 12 of the South Carolina Code Annotated. S.C. Code Ann. § 12-60-450(A) thereunder provides that "[a] taxpayer can appeal a proposed assessment by filing a written
protest with the department within thirty days of the date of the proposed assessment. The
department may extend the time for filing a protest at any time before the period has expired."
(emphasis added). Further, S.C. Code Ann. § 12-60-460 provides specific requirements for the time
period in which to appeal a final determination of the Department in providing that "a taxpayer may
seek relief from the department's determination by requesting a contested case hearing before the
Administrative Law Judge Division . . . [t]his request must be made within thirty days after the date
the department's final determination was sent by first class mail or delivered to the taxpayer."
(emphasis added).
3. Finally, as to the revocation of licenses sought by the Department, S.C. Code Ann. §§ 12-60-1310 and 1320 similarly provide that a person who has been notified of the Department's
determination to revoke or suspend any license issued by it, must appeal that determination within
thirty days after the date the Department's determination was sent to that person by first class mail.
4. There is no indication that the Respondents requested, or that the Department agreed to,
any extension for filing the required protest. Therefore, based upon the above findings of fact the
Respondents failed to make such a request for hearing within the statutory time frame. In failing to
file such a request, the Respondents waived their right to a contested case hearing before this
tribunal. 5. Even when the facts are construed in a light most favorable to the Respondents,
they clearly failed to meet the statutory deadline for filing a timely request for a hearing before this
court. Respondents, through their counsel, admit to receipt of the June 11, 1997 assessment "[o]n
or about June or July of 1997 . . . " Respondents therefore acknowledge receipt of the assessment
by not later than July 31, 1997. Respondents, however, did not request a contested case hearing until
October 21, 1997, which is at least eighty days after their acknowledged receipt of the Department's
assessment. Respondents therefore not only failed to make an appeal of the Department's final
determination within the thirty days allowed by the statute, but, in fact, failed to appeal the final
assessment within such period.
6. In failing to make a timely appeal of the Department's final determination, Respondents
waived their right to a contested case hearing, and this Court therefore does not have subject matter
jurisdiction in this matter. See Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206 (1985) (timely service
of a notice of intent to appeal is a jurisdictional requirement).
ORDER
Based upon the findings of fact and conclusions of law, it is hereby
ORDERED that the appeal of the Respondents of the final determination of the Department
in this matter be dismissed.
IT IS FURTHER ORDERED that the Department is thereby authorized to enforce the
assessment and license revocations as stated in the determination against the Respondents issued
April 17, 1997.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
February 20, 1998 |
