IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-CA-00549-SCT MARLENA ROBINSON

v. ED MORGAN, IN HIS OFFICIAL CAPACITY AS THE COMMISSIONER OF REV ENUE OF THE MISSISSIPPI DEPARTMENT OF REV ENUE DATE OF JUDGMENT: 03/15/2016 TRIAL JUDGE: HON. W ILLIAM H. SINGLETARY TRIAL COURT ATTORNEYS: JAMES GARY McGEE, JR. JON FRANCIS CARMER, JR. JOHN STEW ART STRINGER COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANT: JAMES GARY McGEE, JR. W I LLIAM HARRISON W EBB ATTORNEYS FOR APPELLEE: JON FRANCIS CARMER, JR. JOHN STEW ART STRINGER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 03/02/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., KITCHENS AND MAX WELL, JJ. DICKINSON, PRESIDING JUSTICE, FOR THE COURT: ¶1. Bef

ore January 1, 20 1 5 , M i s s i s s ippi Code Section 27-77-7 required taxpay ers wishing
to appeal tax assessm ents af f irm ed by the Board of Tax Appeals to post surety b onds f or half the assessed taxes or pay

the taxes under protest. 1 But the Legislature am ended the statute
to rem ove that bonding r e q u i rem ent f or appeals f

rom assessm ents im

p osed af ter the

1 M iss. C o d e A n n . § 2 7 -7 7 -7 (3 ) (R ev . 2 0 1 0 ).am endm ent’s ef f ective date of January 1, 2015. 2 Marlena Robinson f ailed t o post a bond or pay her taxes when s he appeal e d a February 4, 2014, tax assessm ent, so the chancellor dism issed her appeal. W e af f i rm . FACTS AND PROCEDURAL HISTORY ¶2. Marlena R obinson and h e r f orm er husband o wned D&M Enterprises, LLC. D&M incurred sales and w ithholdin g t a x l iabilities throughout 2012 and 2013. But, in August 2013, D&M went out of business. So, on February 4, 2014, the Mississippi Departm ent of Revenue assessed Robinson as the responsible person f or the unpaid taxes. ¶3. Robinson c hallenged the assessm e nt bef ore the Dep a r t me n t ’ s B o a r d o f Review,

c l a i mi n g she was not r esponsible f or D&M’s f

iscal m anagem ent. The Board o f Rev i e w upheld the assessm ent, a s did the Bo a rd of Tax Appeals. So on June 1, 2015, Robinson

a p p e a l ed to the C hancery Court f or the First Judicial District of Hinds C ounty under Mississippi Code Section 27-77-7. ¶4. The Depar t me n t mo v e d to dism iss the a ppeal, arguing the chancery court lacked jurisdiction because Robinson had f ailed to post a surety bond or pay the assessed taxes. The chancellor granted t he m otion a nd Robinson appealed to this Court, arguing t he chancellor erred because the p re-am endm ent bond or pay m ent requirem e n t s h o uld not apply to an appeal f iled af ter the am endm ent’s ef

f ective date. ANALYSIS

2 M iss. C o d e A n n . § 2 7 -7 7 -7 (S u p p . 2 0 1 6 ) (ed ito r’s n o te). 2¶5. W h en “t a x p a y e r s f a il[ ] to com

ply with the statutory requirem ents by either pay ing their taxes under protest bef ore appealing, or posting a surety bond with their petition[ ,]

. . . the chancery

court lack[ s] appellate jurisdiction over the taxpay ers’ appeal.” 3 ¶6. Bef

ore January

1, 2015, Mississippi Code Section 27-77-7 stated: A p etition f

iled b y a taxpay er under subsection (1) of this section t hat appeals an order of the Boa r d of Tax Appeals af f irm ing a tax a ssessm ent shall be accom panied by a surety bond a

pproved by the clerk of the court in a s um half the am ount in controversy , conditioned to pay the judgm ent of t he court. . . . As an alternative to the posting of bond, a taxpay er appealing an order of the Board of Tax Appeals af

f irm ing a tax assessm ent m ay , prior to the f iling of the petition, pay to t he a gency , under protest, the am ount ordered by t he Board of Tax Appeals to b e paid a nd seek a ref und of such t axes, plus interest thereon, in the appeal. 4 But now, Mississippi Code Section 27-77-7 states: Unless otherwise ordered by the chancery court upon m otion by the a g e ncy , no taxpay er appealing a n order of the Board of Tax Appeals under this section shall be required to post secu r i t y o r a bond, or otherwise pay t o the agency , unde r protest or otherwise, any contested taxes, interest, penalties or other am ounts. 5 ¶7. The M ississippi Legislature passed this am endm ent in House B ill 799 during the 2014 legislative session. 6 House Bill 799 provided that t he am endm e n t would “take ef f ect and be in f orce f rom and af

ter January 1, 2015.” 7 B u t House Bill 799 contain e d a s aving clause, which states in pertinent part:

3 S o u th sid

e, In c. v. M

iss. D ep ’t o

f R even u e , 1 5 8 S o . 3 d 2 7 7 , 2 7 9 (M i ss. 2 0 1 4 ).

4 M iss. C o d e A n n . § 2 7 -7 7 -7 (3 ) (R ev . 2 0 1 0 ).

5 M iss. C o d e A n n . § 2 7 -7 7 -7 (3 ) (S u p p . 2 0 1 6 ).

6 2 0 1 4 M iss. L aw s ch . 4 7 6

. 7 Id

. 3The p rovisions of the l aws relating to the

. . . judicial r eview of such actions

which were in ef

f ect p r ior to the ef

f ective d ate of this act are expressly continued in f

u l l f orce, ef f ect and operation f

or the purpose of providing

. . . judicial review of any assessm ent

. . . where the initial date o f said assessm ent . . . is bef ore the date on which this act becom e s ef f ective. 8 ¶8. Under this clause, th e e f f e c t i v e s t a t u t o r y p rovisions f o r pursuing j udicial review depen d o n t h e d a t e o f the a ssessm ent, not the d ate of the a p peal. W hen the assessm ent occurred o n February 4, 2014, the bond requirem ent was in ef f ect, so under t he saving clause, it m a tters not that the appeal occurred af ter the am endm ent’s ef

f ective date. ¶9. But Robinson argues t he saving clause should not a pply f or several reasons. First, she believes the saving clause is am biguous and should be interpreted in f avor of the taxpay er. Robinson’s alleged am

biguity arises f

r om the f act that the p resent version of the s t atute say s “no taxpay er . . . shall be required to post security or a bond, or otherwise pay to the agency , under protest or otherwise, any contested taxes.” 9 In o ther words, Robinson b elieves the Court cannot give l iteral ef f ect to both the presen t l a n g u a g e in the statute and t hat in the saving clause because the statute s tates no taxpay er shall be required t o p ost a b ond, but the saving clause would do that very thing. ¶10. But this sim

ply is the nature o f a savin g c l a u s e . B l a c k ’s Law Dictionary def ines “saving clause” as “[ a] statutory p rovision exem pting f rom c o verage som ething that would otherwise be included. A s aving clause is generally used in a repealing act to p reserve rights

8 Id

. 9 M iss. C o d e A n n . § 2 7 -7 7 -7 (3 ) (S u p p . 2 0 1 6 ). 4and claim s th a t would otherwise be lost.” 10 W hen the Legislature am e nds a statute and

inserts a c l ause providing that the old version will apply to certain cases, apply ing t he old law to those cases necessarily will conf lict with the am ended version. ¶11. Next, Robinson raises concerns about how the s aving clause has been codif ied, and wheth e r l i tigants can b e expected to know it exists. House Bill 799 am ended seventeen
statutes. 11 The Legislature divided the b ill i nto t wenty s ections. 1 2 Each of the f i rst seventeen sections contained the text of one a m ended statute. 1 3 Sections eighteen through twenty contained provisions abo ut w hen the am endm ents w ould take ef f ect. 14 Section twenty provided the general ef

f ective date f

or the a me n d m e n t s , January 1, 2015. 15 But section nineteen contained the saving clause. 16 ¶12. W h en LexisNexis published the am endm ents i n the 2016 s upplem ent t o T itle 27 of its p ublished code, it included the language of section nineteen in an “Edito r ’ s Note”

10 S a v in g C la u se , B lack ’s L aw D ictio n ary 1 1 4 6 (ab r. 9 th ed .).

11 2 0 1 4 M iss. L aw s ch

. 4 7 6

. 12 Id

. 13 Id

. 14 Id

. 15 Id

. 16 Id

. 5f

ollowing Section 27-77-7. 17 This Editor’s N ote is f o llo w e d by an “Am endm ent Note” which includes the January

1, 2015, ef

f ective date. 18 ¶13. Robinson argues it is unf air to expect a litigant to identif y and f ollow a saving clause f ound in the Editor’s Note. But the Editor’s Note im m ediately f ollows Section 27-77-7, in the sam e section where one m u s t look t o f

ind the a m endm ent’s ef

f ective d ate. It accurately
states the language a dopted b y the Legislature in H ouse B ill 799. Further, Robinson cites no authority s upporting t he contention that she is e xcused f rom a statutory requirem ent because of how the publisher organized the code. Further, even if the s aving clause were om itted in LexisNexis’s published code, the G e n e r a l L aws of Mississippi—with the provision included—would control. 19 CONCLUSION ¶14. W e af

f irm the chancellor’s decision t o d i s mi s s t h i s a p p e al. R obinson a dm its she neither posted a bond nor paid her assessed t axes u nd e r p r o t e s t

. T his Court has held this requirem ent m

ust be f ulf illed f o r the c h a n c e r y c o urt to have appellate jurisdiction. And, while the Legislature has e lim inated the bond o r pay m e nt requirem ent, the saving clause in House Bill 799 leaves Robinson subject to the pre-am e ndm e nt version of the statute.

17 M i ss. C o d e A n n . § 2 7

- 7 7 -7 (S u p p . 2 0 1 6 ) (ed ito r’s n o te).

18 Id

. 1 9 M i ss. C o d e A n n . § 1 -1 -8 (R ev . 2 0 1 4 ) (“[ I] f th ere is an y co n f l ict b et w e e n t h e lan g u ag e o f an y statu te a s it ap p ears in th e M ississip p i C o d e o f 1 9 7 2 A n n o tated an d in th e G e n e ral L aw s o f

M ississip p i, th e lan g u ag e in th e G en eral L a w s sh all co n t ro l.”). 6¶15. AFFIRMED.

WALLER, C.J., R

ANDOLPH, P .J., KITCHENS, KING, COLEMAN, MAX W ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

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