### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00126- CV

Gle nn H egar, C om ptroller of P ubl ic Acc ounts of the State of T exas, and Ken P axton, Attor ney Ge neral of the State of Texas, App ellants

v. Mahind ra USA, Inc., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 419 TH JUDICI AL DISTRICT NO. D-1 -GN-1 7-0 0304 7, H ONO RAB LE K ARIN CRUMP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Glenn Heg ar, C o m p t roller of Public Acc ounts (the Com ptroller), and Ken Pax ton, Attorney Gene ral of the State of Texas (collec tively , the State) chall enge the trial court’s order denying the State’s plea to the jurisdiction. See Tex. Civ. P ra c. & Rem. Code § 51.014(a) (8) (providing for interlocutory appea l). I n this interl o cu t ory appea l, the State asser ts that Mahindra USA, I nc. (Mahindra ) untimely added to a pending administrative rede t er m i n ation hear ing a tax ref und claim for alleg edl y o v e r p a id f r a n c h ise taxes. Mahindra responds that beca use section 111.207 of the Texas Tax C o d e t o l l s limit ations for issues contested in a pending administrative rede termination hear ing, the tax ref und claim was timely

. Be cause we conclude that the tax ref und claim was untimely when filed and that section 111.207 does not toll the limit ati o n s t o m ake the added claim timely , we re v er s e the district court’s order and rende r judgme nt dismiss ing Mahindra’ s claim.I. F ACTUAL AND LEG AL BACKG ROUND This appea l arises out o f a fr an chis e tax dispute. The rele vant proce dural and jurisdictional fac ts are undisputed. To provide contex t to the parties’ dispute, we beg in with an overvie w of the rele v an t s t atutory fra mework, first briefly explaining the rele vant fra nchise tax calc ulations and then addre ssing taxpay er suits and their statute of limit ations. We then proce ed to the proc edura l history

in this case bef

ore turningto the merits of the pa rties’ a rg uments. A. Statutory F ram ework

Chapter 171 of the T ax C o d e provides for a fra nchise tax, Tex. Tax Code §§ 171.0001–.501, which the Texas Supreme Court has descr ibed as “a tax on the privileg e of doing business in Texas,” TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 437 (Tex. 2011); see In re Nestle USA, Inc. , 359 S.W .3d 207, 208 (Tex. 2012) (orig

. proce eding ) ( Nestle I ); In re Nestle USA, Inc. , 387 S.W .3d 610, 615 (Tex. 2012) (orig

. proce eding ) ( Nestle II ). As rele vant here , the tax is calc ulated by : (1) subtracting from tot al revenues the Costs of Goods Sold (COGS) t o produce the “mar g in,” (2) multipl y ing the marg in by an apportionment fac tor approximating the business done in Texas to produce the “appor tionment marg in,” and (3) multipl y ing the taxable marg in by one of two fra

nchise tax rate s—1% or 0.5%—to produce the amount due. See Tex. Tax Code §§ 171.002, .101(a) ; see Nestle II , 387 S.W .3d at 615 (de scribing calc ulation). “The Comptroller is char g ed with administering the provisions of the fra nchise tax.” TGS-NOPEC , 340 S.W .3d at 438 (citing Tex. Gov’t Code § 403.011). I f a taxpay er is dissatisfied with the fr an ch i s e tax assessment, “[t] axpay er suits g ener ally , and suits challeng ing the fra nchise tax in particu l ar , are permitted by chapte r 112 of the Tax Code.” Nestle I , 359 S.W .3d at 208.
2Chapter 112 permits three ty pes of actions: a protest pay ment suit; a tax ref

und suit; and an injunctive action, the last of which is not at issue here

. Id. at 2 0 8

– 1 1 (citing Tex. Tax Code §§ 112.052(a) , .101(a) , .151); see Hegar v. EBS S o l s . , Inc. , 549 S.W .3d 849, 851–52 (Tex. App.—Austin 20 1 8 , p et

. grante d) (noting sovere ign immunit y is waived “for the following three ty pes of taxpay er suits: protest suits, suits seeking injunctive relief , and ref und suits” (citations omitted)). “Chapter 112 allows no other actions to challeng e or seek ref unds of the taxes to which it applies.” Nestle I

, 359 S.W .3d at 209. Section 112.052 expressly provides for a protest pay ment suit fo r fra

nchise taxes: “[a] person may bring suit ag ainst the state to rec over . . . [a] fra nchise

. . . tax or fee require d to be paid to the state if the per son has first paid the ta x under pr otest as re quired by Section 112.051 of this code.” Tex. Tax Code § 112.052(a)

. Section 112.051 has three statutory prer equisites for bring ing suit. First, a pe rson must submit a prote st with the pa y ment for the a

mount claimed “[i] f

a person who is require d to pay a tax or fee imposed by this ti t l e o r co l l ected by the comptroller under any law

. . . contends that the tax or fee is unlawful or that the public officia l char g ed with the duty of collecting the tax or fee may not leg ally demand or collect the tax or fee .” Id. § 112.051(a)

. Second, the protest “must be in writing ” and “state fully and in detail eac h rea son for rec overing the pay ment.” Id. § 112.051(b). Third, t he protest pay ment must be made “within the period of t ime set out in [section 111.104(c) (3)] for the filing of ref und claims.” Id. § 112.051(c)

. Suit must then be broug ht “ befor e the 91st day afte r the date the protest pay ment was made, or the suit is barr ed.” Id. § 112.052(b).

3Section 112.151 permits a taxpay er to bring a tax ref und suit ag ainst the comptroller “to rec over an amount of tax, penalty , or interest that has been the subject of a tax ref und claim,” but only if the person has “filed a tax ref und claim under Section 111.104 of this code.” Id. § 112.151(a) (1). Unde r sec tion 111.104, a tax refund claim may be filed w ith the Compt roller to deter mine if “an amount of tax, penalty , or interest has been unlawfully or err oneously collecte d.” Id. § 111.104(a)

. Simi lar to the require ments for a protest pay ment suit, a claim for ref

und must “be written,” “state fully and in detail eac h rea son or g round on which the claim is founded,” and be filed within the time period set out in section 111.104(c) (3). Id. § 111.104(c) (1)–( 3).

Be cause section 111.104(c) (3) sets out the rele vant t i m e p er i o d for both a protest pay ment suit a

nd a tax refund suit, we turn ne x t to that provision. S ection 111.104(c )(3) provides that re fu nd claims under section 111.104 must be filed “bef ore the expiration of the applicable limit ation period as provided by this code or befor e the expiration of six months afte r a jeopar dy or defic iency deter

mination become s fi n a l, wh ic h e v e r p e r io d e xpires later.” Id. § 111.104(c) (3). When, as her e, ther e wa s no jeopardy deter mination and the def

iciency deter mination never be came final beca use a petition for rede termination was timely filed, see id. § 111.009(b) (“I f a petition for rede termination is not filed befor e th e ex p iration of the period provided by this subsection, the deter mination is final on the expiration of the period.” ), the second clause of section 111.104(c) (3) does not apply and we are l eft to deter mine what constitutes the “applica ble limit ation period as provided by this code.” We h av e p re v i o u sly conclude d that for a tax ref und suit the “applica

ble limit ation p eriod” descr ibed in section 111.104(c) (3) is “the period during which the comptroller may assess a defic iency for the tax,” id. § 111.107, and that the applicable period during which the

4Comptroller may assess a defic iency for the tax is within four y ear s of the date the tax “bec omes

due and pay able,” id. § 111.201. See F ormosa Plastics Corp. v. Sharp , 979 S.W .2d 410, 413–14 1 (Tex. App.—Austin 1998, pet. denied); Ove rhead Door Corp. v. Sharp , 970 S.W .2d 74, 77 (Tex. App.—Austin 1998, no pet.).

Finally , th e T ax Code expressly provides for the tolling of limit ations in cer tain

scena rios, and it is this tolling provision that is at the crux of the parties’ dispute. Section 111.207, which is titled “Tolling of L imitation P eriod,” provides, as r eleva nt here : (a) I n deter

mining the ex p i ra t ion date for a period when a tax imposed by this title may be asse ssed, collec ted, or re funded, the following periods ar e not consider ed:

. . . . (3) the period during which an administrat i ve rede termination or ref und hear ing is pe nding be fore the comptroller; . . .

. . . . (b) The suspension of a peri o d of limit ation under Subsection (a) (1), (2), or (3) is limit ed to the issues that we re c ontested under those subdivisions.

Tex. Tax Code § 111.207(a) –(b). Wit h this statutory framework in mind, we turn to the proce dural history of this case

.

The franc hise tax is “due May 15, of each y ear afte r t he beginning of t he re gu l ar an nual 1 period.” Tex. Tax Code § 171.152 (a ); see id. § 171.151(3) (defining the reg ular annual period as “beg inning e ach y ear

on J anuar

y 1 and endingthe following Dec ember 31”). 5B. Pr ocedural History Mahindra—w hich descr ibes itself as a distributor of far m trac tors and

acc essories—r eport ed an d paid franchise tax es for tax y ear s 2008 throug h 2011 (the Tax Period). Howeve r, the Comptroller conduc ted an a udit of Mahindra’ s repor

ted taxes and issued a notice of deter mination on April 24, 2013, co n cludi ng Mahindra owed an additional fra nchise tax liability 2 of $569,380.06— $ 467,950.38 in additional taxes; $35,151.20 in penalties; and $66,278.48 in interest. See Tex. Tax Code § 111.008 (“ De fi ci en cy Deter mination”). Dissatisfied with the defic iency deter

mination, Mahindra initiated administrative revie w on May 23, 2013, by reque sting

re d et er m i n ation. See id. § 111.009. I ts reque st for rede termination stated two issues—a tax rate issue and a COG S issue:

T h er e wer e two issues raised during the examination which are subject to t h i s reque st. The first issue was whether or not the taxpay er qualified as a wholesale r elig ible for the .5% fra

nchise tax rate

. The second issue is the disallowance of costs which wer e err oneously descr ibed in the taxpay er’ s fede ral income tax return as “Sales Incentives” for pur poses of c alculating

cost of g oods sold.

The contested case was ref err ed to the State Offic e of Administrative Hea ring s (SOAH). Acc ording to Mahindra, a November 1, 2016 SOAH Scheduling Orde r re q u i re d M ahindra to submit any additional evidenc e in support of its position by Dec ember

19. On Dec ember 19, Mahindra submitt ed its “Additional Arg ument for Petitioner,” which raised for the first time the following issue: “[Mahindra] h as historically overstate d the

Mahindra and the Comptroller enter ed into an ag ree ment to extend the period of limit ations 2 to May 15, 2013, for tax y ear 2008 and thus do not dispute the timeliness of the Comptroller’s deter mination. See Tex. Tax Code § 111.203 (“A g ree ments to Ex tend Period of L imitations ”). 6amount of sales apportioned to Texas as [Mahindra] has not appropr iately applied the apportionment

require ments for tang ible persona l proper ty .” Acc ording ly , Mahindra asser ted that “it has the rig ht to amend the apportionment fac tors orig inally repor ted for Report Yea

rs 2008 throug h 2011 by way of employ ing the ultimate destination sourcing methodology as opposed to the orig in-based sourcing

me th o d o logy which was historically employ ed by [Mahindra].” M a h in d r a th e r e f o r e “ r e q u e s t[ e d ] th a

t the Administrative L aw J u d ge [AL J ] ag ree with its revised sourcing and honor the new apportionment ca lculations which ar e base d on an ultimate destination sourcing .”

On Marc h 1, 2017, the AL J issue d i ts proposal for decision, aff irming the Comptroller’s initial tax deter mination as to the tax rate and COGS issues. As to the apportionment issue raised in the Additional Arg ument, the AL J conclude d that the apport i o n m en t claim—as a ref un d cl ai m

— “w as submitt ed more than four y ear s afte r the fra nchise tax was due for the latest repor t y ear at issue, 2011”; tolling did not apply to the apporti o n m ent claim beca use it “wa s not i ncluded within the issues that wer e contested in the statement of g rounds that initiated th e rede termination hear ing or in an amende d statement of g rounds”; and even if tolling did apply , the apportionment claim was supported only by “bar e asser tions,” which are “insuffic ient to prove that tax was paid in err or or that Staff’s denial of the ref und was err oneous.” The Comptroller adopted the proposal on May 5; Mahindra filed its motion for re h ea ri n g, which the Comptroller promptly denied on J une 2; and on J une 16, Mahindra submitt ed $654,060.31 as pay ment of the tax, penalties, and interest, with its prote st le tter, which included a “Statement of Grounds for Protest” listi ng the tax rate, COGS, and appor tionment issues. See id. § 112.051(b) (“The protest . . . must state fully and in detail ea ch re ason for rec overing the pay

ment.”).

7On J une 30, 2017, Mahindra sued the State by filing its “Or igina l Petition for Refund

of Tax Paid under Protest.” I n its petition, Mahindra raised the tax rate , COGS, and apportionment issues. Reg arding the apportionment issue, Mahindra reque sted that “Ta x pay er should have been g iven cre dit or a ref

und for such overpa id amounts.” I n a foot n o t e t o t h e ap portionment issue, Mahindra also reque sted that “[i] n the alternative, [Mahindra] s h o u l d be ref unded all amounts overpa id” beca

use Mahindra complied with the require ments for a tax ref und suit, as listed in section 112.151(a)

. See id. § 112.151(a) (1)–( 3). Mahindra attache d the protest letter to the petition, but did

n o t attach its motion for rehe aring

. See id. §§ 112.053(c) (re quiring copy of written protest to b e attache d to orig inal petition in protest pay ment suit), .151(d) (re quiring copy of motion for rehe aring t o b e attache d to orig inal petition in tax ref und suit). The State answe red and filed its plea to th e jurisdiction over Mahindra’ s apportionment claim. In its response to the plea, Mahindra argued that the apportionment claim was timely as a pro t est pay ment, but also, “[i] n the alternative, the apportionment claim should be treated as a timely refu n d cl ai m , and [Mahindra] has satisfied the jurisdictional require ments for such a ref und claim.” See id. § 112.151 (Suit for Refund). A fter a h earing , the district court denied the State’s plea to the jurisdiction. The State now appea ls t h e interlocutory order to this Court. See T ex. Civ. Prac. & Rem. Code § 51.014(a) (8) (providing for interlocutory

appea l from g rant or de nial of plea to jurisdiction by

g overnme ntal unit).

II. ST ANDAR

D OF REVIEW “A plea to the jurisdiction challeng es the co u rt ’s au t hority to decide a case .” Hec kman v. W

illiamson County , 369 S.W .3d 137, 149 (Tex. 2012)

. We r eview a plea questioning the trial court’s subject matter jurisdiction de novo, aff ording no defe renc e to the trial court’s ruling

. 8Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226–2 7 (Tex

. 2004). Analy sis of whether this a

uthority exis ts beg ins with the plaintiff’s live pleading s and continues with evidenc e the parties prese nted below that is rele vant to the jurisdictional issues. Id. “When, as here , the fac ts rele vant to jurisdiction are undisputed, the c ourt should make the jurisdictional de termination as a matter of law based solely on those undisputed fac ts.” EBS , 549 S.W .3d at 861 (quoting Mache te’s Chop Shop, Inc. v. Texas Film Comm’n , 483 S.W .3d 272, 278 (Tex. App.—Austin 2016, no pet.)). I f the pleading s lack fac ts sufficie nt to aff irm at i v el y d em onstrate jurisdiction, but also do not demonstrate incurable defe cts in jurisdiction, then t he is sue i s one of pleading sufficie ncy and the plaintiff must be allowed the opportunity to amend. Mira nda , 133 S.W .3d at 226–27. I f the pleading s or undi sputed fac ts aff irmatively neg ate jurisdiction, then a p lea to the j urisdiction may be g ra n t ed wi t h o u t allowing the plaintiff an opportunity to amend. Id. at 227; Gattis v. Duty , 3 4 9 S

. W .3d 193, 209 (Tex. App.—Austin 2011, no pet.) (re versing and rende ring judgme n t dismiss ing claims for want of jurisdiction beca

use defe cts are “a function of pled or undisputed fac ts that aff irmatively

neg ate jurisdiction”)

. A de novo standard of revie w is also ap p ro priate when, as here , the materia l jurisdictional fac ts are undisputed and the analy sis of the plea to the jurisdiction turns on a question of law reg arding statutory construction. Southwest Pharmacy Sols., Inc. v. Texas Health & Human Servs. Comm’n , No. 03-11-00802- CV, 2013 WL 3336868, at *2 (Tex. App.—Austin J une 27, 2013,

no pet.) (mem. op.) (citing State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006)). “When construing

a statute, our primary objective is to g ive eff ect to the L eg islature’s intent,” and we seek that intent “‘f irst and foremost’ i n the s tatutory text .” Colorado County v. Staf f , 510 S.W .3d 435, 4 4 4 (Tex

.

92017) (quoting Greater Hous. P’ ship v

. Paxton , 468 S.W .3d 51, 58 (Tex. 2015)). “‘ Where text is clea r, text is deter

minative’” and “we may not look bey ond its lang uag e for assistance in deter mining leg islative intent unless the statutory text is susceptible to more than one rea sonable interpre tation.” Id. (quoting Entergy Gulf States, Inc . v. Summe rs , 282 S.W .3d 433, 437 (Tex. 2009)).

III. ANALYSIS I n one issue, the State c halleng es the trial court’s jurisdiction to decide Mahindra’ s apportionment claim, but does not d i s p u t e the trial court’s jurisdiction over Mahindra’ s claims related to the tax rate and COGS issues. The State argues that bec ause Ma hindra did not raise the apportionment issue in the administrative rede termination hear ing until afte r the four y ear statute of limit ations had run, the apportionment claim is untimely as ei t h er a p ro test pay ment suit or a tax ref und suit, and section 111.207(a) (3) does not toll limit ations for the untimely claim. I n response , Mahindra does not deny that it first raised the apportionment i ssue on December 19, 2016—more than four y ear s afte r the rele vant time period. But Mahindra argues that section 111.207(a) (3) does not r equire the issue to be raised befor e the four y ear s had passe d, so long as the issued was raised and “conte sted” during the pendenc y of the administrative rede termination hear ing that was initiated within the four y ear

limit ations period. Mahindra broug ht the apportionment claim as a part of its protest pay ment suit under section 112.052, but it also pleade d the apportionment claim as a t ax re fu nd suit under section 112.151 in the alternative. See Tex. Tax Code §§ 112.052 (authorizing protest pay ment suits), .151 (authoriz ing tax ref

und suits). As we have previously noted, “[d] espite the simil ar intent of both methods to provide acc ess to a ref und of taxes paid, the leg islature cre ated two distinct and exclusive

10reme dies for tax ref und suits and tax protest s uits—each with differ ent procedura l requi rements.” Local Neon Co. v. Strayhorn , No. 03-04-00261- CV, 2005 WL 1412171, at *3 (Tex. App.—Austin J une 16, 2005, no pet.) (mem. op.) (citing Strayhorn v. Lexington Ins. , 128 S.W .3d 772, 779 (Tex. App.—Austin, 2004), aff’d , 209 S.W .3d 83 (Tex. 2006)). We explained:

I n a tax ref

u n d suit, a taxpay er must file a ref und claim with the Comptroller providing the g rounds on which the claim is founded, file a motion for rehe aring with the Comptroller afte r the ref und claim is denied, and file a ref und suit within 30 day s afte r t he denial of t hat m otion for rehea ring

. [Tex

. ] T ax C o d e § 112.151. I n a tax protest suit, by contra st, a person must pay the amount assessed, submit with the tax pay ment a prote st letter, and f ile suit within 90 day s of the date pay ment was made under pr otest. Id. §§ 112.051–.052.

Id. at *3. Be cause there are differ ent proce dural require ments for protest p aym en t s uits and tax ref und suits that aff

ect the rele vant statute of limit ations and jurisdictional require ments, we analy ze

eac h suit separ ately in turn. See, e.g. , Bullock v. Mel Powers Inv. Builder , 682 S.W .2d 400, 402–03 (Tex. App.—Austin 1984, no writ) (ana ly zing separ ately for satisfac tion of jurisdictional

re q u i re m ents taxpay er’ s ref und claims under statute authorizing protest pay ment suit and statute authorizing tax ref

und suit). We consider whether the tr i al court had jurisdiction over the apportionment cla im first as a prote st pay ment suit and then as a ta x ref und suit.

A. Jurisdiction Over P rote st P aym ent Suit

As a threshold matter, we note that the State argues Mahindra could not ha ve made

a timely protest pay

ment with respe ct to the apportionment claim “bec ause the Comptroller did not demand pay

ment based on apportionment, and Mahindra is not rea lly protesting the Comptroller’s assessment of its apportionment fac tor beca use that was not audited.” Acc ording ly , the State argues 11that Mahindra’ s apportionment claim i s n ot a ref und claim made in a protest pay ment suit under section 112.052, but a c laim in a tax refund suit. W e ag ree with the State.

I n its Orig inal Petition for Refund of Tax Paid under Protest to the d i s t ri ct court, Mahindra asser

ts that “Ta x pay er’ s fra

nchise tax liability was err oneously deter mined based upon a

source -base d, rathe r than a destination-base d apportionment calc ulation resulting in the calc ulation of a highe r tax ab l e m ar gin and a related overpa y ment of tax” and “Ta x pay er’ s apportionment formula s h o u l d h ave been based upon destination-base d shipping rathe r than orig ination-based shipping, and the Taxpay er should ha ve been g iven cre dit or a ref und for such overpa id a

mounts.” I n its briefing to this Court, Mahindra admits that the err oneous deter mination was its own err or, not the Comptroller’s, and that its e rror “re sulted in a n inflated apportionment fac tor . . . resulting in a substantial overpa

y ment of fra

nchise taxes.” And in its Additional Arg ument in which it raised the apportionment issue, Mahindra stated that i t “has historically overstate d the amount of sales apportioned to Texas as [Mahindra] has not appropr iately applied the apportionment require ments.” Thus, Mahindra i s at tempting to shoehorn its tax ref und claim into a protest pay ment suit, presumably to take advanta g e of the distinct proce dural mecha nisms for a protest pay

ment suit. But its attempt fails for the following two rea sons.

First, as a prer equisite to bring ing a protest pay ment suit, a person “must submit with the pay ment a protest.” Tex. Tax Code § 112.051(a)

. Although Mahindra submitt ed a protest that listed the apportionment issue along side other issues wi t h its 2017 pay ment for the defic iency rede termination, Mahindra did not submit a protest with its alleg ed “re lat ed overpa y ment of tax” based on its own err oneous apportionment calc ulation in initially paying its taxes for the Tax Period

12more than four y ear s ear lier. Acc ording ly , Mahindra’ s protest as to the apportionment issue was not

submitt ed with its tax pay ment re l at ed to the apportionment issue and fails to meet the statutory prer equisite to bring a prote st pay ment suit. Second, a protest pay

ment suit is permitted if a person “is require d to pay a tax or fee i m p o sed by this title or collecte d by the comptroller under any law[.] ” Id. But Mahi n d ra n ev er alleg es i t was “require d” to pay the apportionment tax by the Tax Code or by the C omptroller. I n fac t, it char acte rizes its pay ment as “er

roneously deter

mined” by itself, not the Comptroller. Errone ously paid taxes not require d by law or the Comptroller, as Mahindra’ s apportionment claim alleg es, are rec overa

ble as a tax ref

und claim, but not as a ref und reque st in a protest pay ment suit. Compare id. § 112.052(a) (providing for protest pay ment suit for fra

nchise tax “re quired to be paid to the state”) , with id. §§ 111.104(a) (noting that ref und is available for “an amount of tax, penalty ,
o r i n t erest [t hat] has been unlawfully or erroneously collecte d ” (empha sis added) ), 112.151(a) (per mitti ng tax refund suit for a r efund c laim broug ht under sec tion 111.104).

For these re asons, we c onclude that the sta tutory provisions providing f

or a pr otest p ay ment suit, see id. §§ 112.051–.060, do not provide the district court with jurisdiction over Mahindra’ s apportionment claim and the pleading s and undisputed jurisdictional fac ts aff irmatively neg ate jurisdiction, see Bullock v. Amoco Prod. Co. , 608 S.W .2d 899, 901 (Tex. 1980) (holding that statutory prede cessor providing for protest pay ment suit “cr eate d a rig ht not exis ting at common law and presc ribed a reme d y t o enfor ce the rig ht”; “[t] hus, the courts may act only in the manner provided by t h e statute which cre ated the rig ht”); see also Nestle I , 359 S.W .3d at 212 (“B eca use these tax pay er rights of action are created by statute, waiving the S tate’s imm unity from suit, ‘the

13courts may act only in the manner provided by the statutes which cre ated the rig ht.’” (quoting Dan

Ingle, Inc. v. Bullock , 578 S.W .2d 193, 194 (Tex. App.—Austin 1979, writ ref ’d)) ). Be ca u s e we conclude that jurisdiction does not exis t under these statutory provisions, we need not consider the State’s or Mahindra’ s arg uments reg arding tolling under section 111.207 as to the protest pay ment suit. I nstead, we turn to the statutory provisions providing for a tax ref und suit to deter

mine whether they provide jurisdiction over Ma hindra’s a pportionment claim.

B. Jurisd iction Over Tax Refund Sui t

The State argues that the trial court lacks jurisdiction over Mahindra’ s apportionment claim as a n untimely

tax refund claim. We ag ain agree with the State. Section 112.151 imposes cer tain require ments that must be met before a trial c ourt has jurisdiction over the tax ref und claim. Tex. Tax Code § 112.151(a)

. “This sta t u t o ry scheme makes clea

r that the trial courts only have jurisdiction over tax ref und claims that are first raised in

acc ordanc e with Tax Code section 111.104 and then appea led in a motion for rehe aring under Tax Code section 111.105.” Combs v

. Chevron, Inc

. , 319 S.W .3d 836, 844 (Tex. A pp.—Austin 2010, pet. denied) ; see AT& T Corp. v. Rylander , 2 S.W .3d 546, 553 (Tex. App.—Austin 1999, pet. denied) (“U nder the new [1991] Tax Code scheme , limit ations beca me tied to the filing of an administrati ve claim for refund within four y ear s of the date the assessment beca me due and the subsequent filing of suit following the denial of a motion for rehe aring .”). We there fore turn to the require ments of section 1 1 1

. 104 for raising an administrative tax refund claim, which states:

14(c) A claim for ref und must: (1) be written; (2) state fully and in detail eac h rea son or g round on which the claim is founded; and (3) be filed before the expirat i o n of t he applicable li mitation period as provided by this c ode or befor e the expiration of six months after a jeopar dy or defic i ency deter mination become s final, whicheve r period e x pires later

.
Tex. Tax Code § 111.104(c)

. Related to t hese r equire ments, the following jurisdictional fac ts are undisputed: (1) the fir st tim e Mahindra submitt ed a written claim ra ising the a pportionment issue

was Dec ember 19, 2016; (2) there was no jeopar dy deter mination and the defic iency deter mination

never beca

me final beca

use a petition for rede termination was timely filed, see id. § 111.009(b) (“I f

a petition for rede termination is not filed befor e the expiration of the period provided by this subsection, the deter

mination is final on the expiration of the period.” ); and (3) the four y ear statute of limit ations for tax ref

und claims expired befor e Dec ember 19, 2016, unless section 111.207(c) (3) tolled limit ations due to a pe nding a dminist rative r edete rmination hear ing. Sec tion 111.207(c) (3) provides that “the period durin g wh i ch an administrative rede termination or ref und hear ing is pending befor e the comptroller” is “not considere d” in “dete rmining the expiration date for a period when a tax imposed by this title may be assessed, collecte d, or ref unded,” but the “suspension of a period of limitation” is “limited to the issues that were contested.” Id. § 111.207(a) (3), ( b).

Mahindra argues as follows: The ref und claim wa s fi led in a tax administrative rede termination hear ing that beg an on Marc h 23, 2013; Mahindra contested the apportionment issue by filing its written ref

und claim as to that issue on Dec ember 19, 2016; t h e ad m i n istrative case

15rec ord closed on Fe bruar y 6, 2017, and the hear ing conclude d on J une 2, 2017; beca use the issue was conteste d d uring the pending rede termination hear ing, limit ations was suspended under section 111.207(a) (3) from Marc h 23, 2013 until the hear ing conclude d; there fo re , Mahindra’ s apportionment claim was timely filed as a tax ref und claim under section 111.104. But Mahindra’ s argument puts the car

t be fore the horse. Section 111.104(c) (3) require s that the ref und claim filed with the Comptroller must “be filed before the expiration of the applicable l i m i t at i o n s period[.] ” Id. § 111.104(c) (3) (empha sis added)

. Thus, a statutory prer equisite to bring ing a tax ref und suit is that the administrative tax ref und claim must be timely when filed. I f the filing of the administrative tax ref und claim—i.e., contesting the issue—is what trigg ers secti o n 111.207 to toll the s tatute of limit ations, as Mahindra argues, t hen section 111.207 cannot serve to also tol l limi tations prior to the fil ing of an untimely

administrative tax refund cla im to make it tim ely when filed. Cf. W

ilson

v. State , 272 S.W .3d 686, 690 (Tex. App.—Au s t i n 2 0 0 8 , pet. denied) (“The tolling is expressly restric ted by issues[.] ”). Nor does s ec t i o n 1 11.207’s text indicate that the leg islature intended to provide for the resur

rec tion of an untimely admin i s t ra t i v e ref und claim. See Heritage on San Gabriel Homeowne rs Ass’n v. Texas Comm’n on Envtl. Quality , 393 S.W .3d 417 , 4 2 7 (T ex . App.—Austin 2012, pet. denied) (noting we will not presume leg islature intended something “whe n there is nothing in the lang uag e of the statute to indicate that intent”)

.

The apportionm ent issue was not contested in the administrative rede termination h e a r in g p r io r to M a

h in d r a f il in g th e a p p o r ti o nme n t c la im w it

h th e Co mp tr o ll e r o n D e c e mb e r 1 9 , 2 0 1 6

. Mahindra argues that “the Comptroller opened a two-wa y door to the ree valuation of the pay ments made from 2008–2011” and “[t] he Comptroller took a look and contested cer tain matters;

16[Mahindra] took a look and contested others.” But the Comptroller “took a look” befor e limit ations

ran and did not untimely raise any matters in the administrative proce eding s. I n contra st, Mahindra waited until afte r limit ati o n s h ad ex pired—a nd more than three y ear s afte r the Comptroller completed its audit—to raise the apportionment issue as a tax refund claim in the redetermination hear ing, even though the statute require s the apportionment claim be filed befor e limit ations expired. Tex. Tax Code § 111.104(c) (3). Acc ording ly , section 111.207(a) (3) did not suspend limi t at i ons prior to Mahindra filing the apportionment claim, and limit ations expired befor e Mahindra filed the apportionment ref

und claim with the Comptroller. Be cause the p l ea d ings and undisputed fac ts aff irmatively show that Mahindra failed to follow the administrative proce dures require d by statute, t h e trial court lacks jurisdiction over Mahindra’ s apportionment tax ref und claim. See Com b s , 319 S.W .3d at 845 (holding no jurisdiction over tax ref und claims beca

use claimant failed to fulfill all of sec tion 111.104’s administrative prer equisites to filing a tax refund suit).

III. CONCLUSION Having conclude d that the pleading s and u n d is p ute d jurisdictional fac ts aff irmatively neg ate the trial court’s jurisdiction over Mahindra’ s apportionment claim as either a protest pay ment suit or a tax re fu n d s u i t, we reve rse the district court’s order deny ing the State’s plea to the jurisdiction and rende r judgme nt g ranting the plea to the j u risdiction and dismiss ing Mahindra’ s apportionment cla im for want of jurisdiction.

17__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Kelly Reverse d and Rende red Filed: F ebrua

ry 28, 2020

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