Filed 12/12/19 by C lerk of Su preme Court


### I N T H E S U P RE M E C O U R T S T A T E O F N O R T H D A KO T A

2019 ND 282

State of North Dakota, by and through the Offi ce of State Tax Commissioner, Plaintiff and Appellee

v.

Bradley Bosset, Defendant and Appellant

No. 20190185

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Cynthia Feland , Judge.

AFFIRMED

. Per Curiam

. Charles L. Dendy and Donnita A. Wald, Special Assistant Attorney General, Office of State T ax Commissioner, Bismarck, ND , for plaintiff and appellee (on brief).
Bradley Bosset, self

- represented , Mandan, ND, defendant and appellant (on brief).1 State Tax Commissioner v. Bosset

No. 20190185

Per Curiam

. [¶1] Bradley Bosset appeals from a summary judgment in favor of the State Tax Commissioner, assessing Bosset state income tax fo r the years 2012 through 2016. Bosset mentions but does no t fully support a number of issues, including that the evidence does not support the determination he has a federal tax liability and therefore a state tax liability . He further argues the district court erred by not using statutory definitions when the y differ from common definitions; erred by failing to follow precedent and adher ing to the

c onstitutional avoidance d octrine ; erred by not requiring strict p roof of his liability ; and erred by misst ating his statement and thereby showed bias and prejudice . He contends the State’s failure to address issues he raised is evidence of acquiescence.
[¶2] The essence of Bosset ’s argument is that North Dakota’s income tax is unconstitutional and that the district court erred in granting summary judgment on the basis of the evidence submitted with the State ’s motion for summary judgment , which included the C ertificate of the Tax Commissioner, affida vits from employees of the Office of State Tax Commissioner and supporting exhibits

. Under N.D.C.C. § 57

- 38

- 46, the Cert ificate of the Tax Commissioner constitutes “prima facie evidence that such tax has not been paid, that such return has not been filed, or that such information has not been supplied. ” The State ass e rts the only material facts in an action arising from

a non
- filer tax assessment under N.D.C.C. §§ 57

- 38

- 39(7) and 57

- 38

- 45(6) are: 1) the Tax Commissioner found a person has an obligation to file a North Dakota income tax return and failed to do so; 2) the statutory notice to file was provided to the taxpayer; 3) the return was not filed within thirty days; 4) the Tax Commissioner assessed tax; and 5) the assessed tax has not been paid.
[¶3] T he summary judgment is supported by the record and North Dakota’s income tax is constitutional

. We summarily affirm under N .D.R.App.P. 35.1(a) (1), (6) and (7); see State v. Benson , 376 N.W.2d 36, 40 n.6 (N.D. 1985) (citing State v. Nichols , 66 N.D. 355, 265 N.W. 859 (1935), and Dorgan v.2

Kouba , 274 N.W.2d 167 (N.D. 1978), and reiterating holding “that North Dakota’ s income tax law, and particularly Section 57-3 8 -31, N.D.C.C., was constitutional. ”).
[¶4] Gerald W. VandeWalle, C.J. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte Jon J. Jensen