ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before me on a Motion to Dismiss filed by the South Carolina Department of
Revenue ("Department"). The Department seeks the dismissal of the taxpayer's request for a
contested case hearing on the ground that such request was untimely.
The facts relevant to the Department's motion are established by the Department's Preliminary
Tax Statement, Prehearing Remedy Materials, and its exchange of evidence. They indicate the
taxpayer was the subject of a sales tax audit which resulted in the Department mailing the
taxpayer a Final Agency Determination for additional taxes. This Determination was mailed to the
taxpayer on August 21, 1996, by Certified Mail, return receipt requested. Included with the
Determination was a cover letter that explicitly explained the relevant appeal procedures of S.C.
Code Ann. Section 12-60-460 (Supp. 1995).
On August 28, 1996, an agent for the taxpayer received and signed for the Determination sent by
Certified Mail. Thereafter, the taxpayer excepted to the Determination by submitting a request
for a contested case hearing on October 17, 1996.
A motion hearing was conducted on December 18, 1996, at which time oral arguments on the
Motion to Dismiss were presented by the parties. Upon careful consideration of the arguments of
the parties, the applicable law, the prehearing documents, and evidence presented to this tribunal,
the Department's motion is proper and, therefore, granted.
DISCUSSION
In the instant matter, the Department issued a Final Agency Determination assessing additional
sales taxes against the taxpayer. The remedy available for challenging that Determination is
provided at Section 12-60-460. It states in part:
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 or the DMV hearing officers, as appropriate. 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....
The facts here clearly indicate the taxpayer's request exceeded the thirty-day limitation by more
than twenty days. In view of this, the request should be dismissed for lack of subject matter
jurisdiction. See Knight Pub. Co. v. University of S.C., 295 S.C. 31, 367 S.E.2d 20 (1988);
Merchants Mutual Insurance Co. v. South Carolina Second Injury Fund, 227 S.C. 604, 291
S.E.2d 667 (1982); Hemingway v. Shull, 286 F.Supp. 243 (D.S.C. 1968). The taxpayer's request
for a contested case hearing was untimely filed. Timely service of a notice of appeal is a
jurisdictional requirement, and this tribunal has no authority to extend or expand the time in which
the notice of intent to appeal must be served. Mears v. Mears, 287 S.C. 168, 337 S.E.2d 206
(1985). Moreover, if the notice of appeal is not timely served, jurisdiction is never vested in this
court and the appeal must be dismissed. Southbridge Properties, Inc. v. Jones, 292 S.C. 198, 355
S.E.2d 535 (1987).
ORDER
The taxpayer has unquestionably failed to timely request a contested case hearing under Section
12-60-460. The request is therefore dismissed.
AND IT IS SO ORDERED.
___________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29221-1667
December 30, 1996
Columbia, South Carolina |
