briefs and he's a very fine young were local product of cardoza law school i reserved two minutes for rebuttal the essence of our argument here is that the plain language of the statute of that tax by the yet the under eleven o five which is the general rule the general rule is that any retail goods in new york city are taxed under that you can recover you know about eleven thirty nine for the exempt items like coffee and the basic the basic necessities of life the purpose of the statute is allow people to recover in the courts and the courts can and the federal courts the law courts that is how you can  that's how you can recover an argument is that these there was no authority dunkin donuts at nome authority under the tax statute specific specifically it was it says in the text coffee cannot collect tax on thirty nine you have to you have to read the law which of eleven's forty which says that a leopard eleven forty says the exclusive remedy only applies to taxes imposed by this article and then the definition of tax says specifically taxes to fund in the article as imposed by section eleven zero five so as the sales tax this is your argument that it wasn't a sales tax but if it's imposed as a sales tax it's imposed under the article but argument argument is that the plain language of the statute eleven's for forty says the exclusive remedy only applies to taxes imposed by this article in taxes defined as taxes under eleven o five under eleven fifteen there is the exemption for all the basic necessities of life for coffee for food for beverages right ok but i think it is the or it's not the argument that i make your honor this is the argument that is  clearly been accepted by the highest court in new york state the new york court of appeals in a line of decisions dating all the way back to the among national bank first is o'mara and there is yes you have any doubt that the monies that were collected were taxes that weren't do knowing to get the money back from new york state that's exactly why you have to go through this procedure and so you know i would think if you go through the procedure if new york tells you they didn't transmit that money to us they will complete fraudsters they charged it is tax but they pocketed it then maybe you have an action but if the money was transferred to new york and now your argument is that look this fits within one of the exceptions that would seem to me to be exactly what you have to use the procedures well if if that if that's the case your honor then we should be in title to discovery as to where this tax when you follow the procedures first and then if they don't give you the relief because they tell you these people never paid the money and or something then you've got a basis but you've got it you've got to exhaust the procedures for your honor again with all due respect the new york state  highest court says that if if you argue if you make a claim the tax is either exempt by statute is inapplicable by statute or is unconstitutional that that claim belongs in the law courts and the cases that we cite for that or the bankers trust case there's a first national bank case or court of appeals cases that specifically adopted the holding of chipmunk dating back to the one thousand century which says that when the statute specifically exempt something what duncan is doing is they are they are taking this there in the guise of a tax they are taking this money without authorization by the statute they are simply not authorized to take this tax and that is and it's only it's only for a particular type it's only for the limited number of exemptions in eleven fifteen i did bankers new york that was a case a new york court of appeals case in which there was a federal statute the federal statute said that the local authority taxing authority can't impose a tax on a national bank are well i'm not sure i understand what you're relying on for the fact that when you're not art when you're not challenging the constitutionality of the statute you're so instead saying that the vendor  or in applicable and here it is not applicable the taxes because eleven fifteen exemption eleven fifteen exempts it and because of that please good morning may it please the court eric e f e on behalf of duncan brands inc i will take your eight minutes with the court's indulgence and each of franchisees council has reserved amended me that the court has any questions for them let me jump right to the point the court has focused on which is this in light of key says that mr mayor cites for the proposition that the appellant's can go right to the court that line of cases is actually in applicable and they're dealing with different issues first of all the cases that are side of in the eight hundred seventy s chmagh in america predated the promulgation of the new york tax laws and three forty nine by decades and had nothing to do with the exhaustion of administrative remedies and it as iran or pointed out those cases including the bankers trust case or dealing with situations where the state who are city or county assessed a tax and ignored its own laws and the court said in that instance you would be able to go directly to court you did not have to in the case of bankers trust you wouldn't have to exhaust your ministry to remed trust was a case where they said actually the plaintive had failed to exhaust its administrative remedies and the notion that faced a statute or regulation is wholly an applicable that has been true pretty to mean that the agency fails to have jurisdiction over the statute and that has again nothing to do with this case so we're really not dealing with a constitutional issue if there were one that would be brought against the state not against a private retailer as in the franchisees in this case and of course duncan is the franchise or that i'm representing which is a different position entirely so going back to sort of first principles here we do have sectional eleven thirty nine going back to judge winters point which explicitly states that if a tax is erroneous leigh illegally or unconstitutionally collected or paid then you can go to the tax commissioner under the procedures set up by the legislature for a refund or a credit and following that section eleven forty explicitly indicates that this is in fact the exclusive remedy if you feel you have been aggrieved in connection with the payment of taxes and that's what happened here and i think the district court got exactly right the palin's have tried to sort of recast this is something to try to get outside those zone of the tax laws but in fact as the district court said you can't just semantically change the rules of the game and and get yourself from around the very explicit tax laws in new york and here they talked about it as a surcharge rather than a tax but we have a receipt it was for the sale of prepackaged coffee and they paid eighty nine cents in tax they believe that it was erroneous and they have a procedure that they can in fact follow and there is case law to support this certainly at least at the federal district court level i think the cases that are pretty much on point other hurts case and the home depot case both of which we we cite to in our brief all of us i believe say to our briefs and those cases said you can't use three forty nine or fraud or negligence in these cases and try to do an end around the tax law statute when there is the imposition of a tax that you believe was erroneous or illegal your remedy is again to go to through the procedures set forth in section eleven thirty nine the they have other arguments concerning section three forty nine i think the district court lays out fairly nicely again why under under applicable precedent and the the interpretations of section thirty three forty nine this case doesn't even fit into it and in any event the constitutional arguments they raise of course were not raised below they weren't even raised in their many complaint so we see a lot of shifting sands here to try to find a way to get around the tax laws but our view is that the tax laws are quite explicit this is a core case where they had a remedy that they failed to exhaust and unless the court has any further questions i will otherwise rely on our brief thank you thank you thank you your arms please the court i am on christopher kelly representing three of the four duncan stores that are individually named three five zero one two five one two six and one two seven your hon you raised a critical question it's not in the record it was addressed in the pretrial conference with judge schofield which was was the money actually paid over to the state i'm pleased to answer it but if you would like but otherwise we will rest on our brief  and the converse hurts case because those were cases that were decided under eleven o five they were not exempt items like like donuts coffee food food items they were not your basic exempt items the difference is that the step the let the statutory language says it says it explicitly eleven forty eleven forty it says that the exclusive remedy provisions only apply when when you're talking about a tax imposed under the article but the taxes that are imposed under the article it's exempt for coffee so and that is that and  that is the reasoning to new york state court of appeals follow and the new york state court of appeals is not binding on this court obviously right it is the highest interpretation most persuasive interpretation and indeed in the bankers trust case  i note dunkin donuts counsel wants to say that this that she among was an old case but bankers trust which was a two thousand and three new york court of appeals case it says the assessors impose a tax on the capital stock of the bank in direct violation of a statute providing that such property it was not taxable that's exactly our case that's exactly the case this statute says and the reason for your honour's is clear these are the basic necessities of life and the legislature wanted to and so they gave them special treatment not just in the in the language of the statute but in the remedy provision which it means you can go to federal court and your exclusive remedy doesn't require you go to the text of vision because there wouldn't be no real remedy here no one's going to go to a tax division for eighty nine cents in federal court people can band together to stop this practice and that's what that's what this case is all about and and i would if i could your honor there is one more citation i would like to give you which is your brief i'm sorry it is not and i apologize to our it is first national bank versus city of new york finance it's again a court of appeals case and it again holds one more citation i said i suppose you could call the other side makes a lot in their briefs of the fact that impose as used in the statute eleven forty means that they are free to collect taxes on whatever they want to and that means that later the text department can can sort it out but that is not the plain meaning definition of imposed and it is not the actual definition in black's law dictionary which implies to levy or exact as by a