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James W. Stivers and Kaylynn A. Stivers v. Idaho State Tax Commission

April 30, 2013

JAMES W. STIVERS AND KAYLYNN A. STIVERS, PLAINTIFFS-APPELLANTS,
v.
IDAHO STATE TAX COMMISSION, DEFENDANT-RESPONDENT.



Appeal from the District Court of the Second Judicial District, State of Idaho, Latah County. Hon. Jeff M. Brudie, District Judge.

The opinion of the court was delivered by: Lansing, Judge

2013 Unpublished Opinion No. 471

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

District court's order dismissing petition for judicial review of decision of the Board of Tax Appeals, affirmed.

James W. Stivers and Kaylynn A. Stivers appeal from the dismissal of their petition for judicial review of the decision of the Board of Tax Appeals (BTA). For the reasons set forth below, we affirm.

I. BACKGROUND

On December 15, 2009, the Idaho State Tax Commission ("Commission") issued a notice of deficiency determination to the Stivers, asserting a combined income tax deficiency in the amount of $16,329 for the taxable years 2001-2003 and 2006-2008. The Stivers filed a protest to the notice of deficiency determination.*fn1 On January 18, 2011, the Commission entered a final decision and redetermination of tax deficiency, determining that the Stivers had not filed state income tax returns for taxable years 2001-2003 and 2006-2008, and demanding payment of pastdue taxes, penalties, and interest in the amount of $16,915.

The Stivers, acting pro se, appealed the redetermination to the BTA on April 11. In their appeal, they indicated that they were financially unable to provide a cash security deposit in the amount of 20 percent of the asserted deficiency prior to their appeal as required by Idaho Code section 63-3049, and they appeared to offer their home as security or, alternatively, to request a waiver of the security requirement. In a letter to the BTA dated April 18, 2011, the Stivers asserted that they were unable to provide the security because they were unemployed and had been unable to obtain a home equity loan. On May 2, the Stivers mailed a $500 "good faith" check to the Commission and, in a letter to the BTA dated May 9, stated, "We have not requested a waiver of the security bond, but rather have petitioned that our only asset of value be accepted in lieu of the cas[h] bond." The BTA dismissed the Stivers' appeal on May 24 due to their failure to provide the requisite security deposit, and denied a motion to reconsider on June 22.

On July 18, the Stivers filed a pro se petition for judicial review*fn2 in the district court. The district court dismissed the petition due to the Stivers' failure to post the requisite security deposit. The Stivers appeal, and appear to challenge the constitutionality of section 63-3049.

II. ANALYSIS

A taxpayer may seek review of the redetermination of a tax deficiency either by the district court or by the BTA within ninety-one days from notice of the decision of the State Tax Commission. I.C. § 63-3049(a); Ambrose v. Idaho State Tax Comm'n, 139 Idaho 741, 743, 86 P.3d 455, 457 (2004). To pursue either avenue, Idaho Code section 63-3049(b) requires that the taxpayer first post security. That statute provides:

Before a taxpayer may seek review by the district court or the board of tax appeals, the taxpayer shall secure the payment of the tax or deficiency as assessed by depositing cash with the tax commission in an amount equal to twenty percent (20%) of the amount asserted. In lieu of the cash deposit, the taxpayer may deposit any other type of security acceptable to the tax commission.

Pursuant to the authority granted in the last sentence of that statute, the Commission adopted IDAPA 35.02.01.600.01, which specifies that acceptable security includes cash, bonds executed by a surety company, bearer bonds, automatically renewable time certificates of deposit, investment certificates, ...


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