Jonathan A. Maizel & Beatriz E. Maizel v. Comptroller of the Treasury

Case No. 508, September Term, 2018

MARYLAND INCOME TAX

– CLAIM FOR REFUND OF OVERPAYMENT

– STATUTE OF LIMITATION. A person who seeks to pursue a claim for a refund of overpayment of Ma ryland income taxes is generally subject to the time limit imposed by Maryland Code (1988, 2016 Repl. Vol.), Tax

– General Article (“TG”), § 13

- 1104(c)(1), which requires that the claim be filed no later than three years from the time the pertinent tax ret urn was filed or two years after the date the overpayment of tax was paid, whichever of such periods expires the later. The possible extension provided by TG § 13

- 1104(j) is an exception that is applicable on ly to a taxpayer who was a party to an administr ative proceeding as described in that subsection.Circuit C ourt for Montg omer y County

Case No

. 0438961

- V
REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 508 September Term, 201 8

JONATHAN A. MAIZEL , ET UX.

v.
COMPTROLLER OF THE TREASURY

Meredith, * Graeff , Reed , JJ.

Opinion by Meredi th, J.

Filed : April 29, 2021

* Meredith, Timothy E. , J., now re tired, participated in the hearing of this case while an active member of this Court, and after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decisi on and the preparation o f this opinion.J onathan Ma iz el and Beatrize Maizel , appellants, have appealed from a judgment

of the Circuit Court for Montgomery County which, upon judicial review of a ruling of the Maryland administrative agency known as the Maryl and Tax Court, affirmed the
denial of t he Maiz el s ’ application for income tax refunds , which was the pos ition urged by the Maryland Comptroller of the Treasury , ap pellee

. The Maizels had filed amended income tax returns see king refunds because , they

asser ted, they had overpaid Maryland incom e taxes f or th e calendar years 2006 through

2011. A t the time the Maizels fil ed th eir original retu r ns for those years , the deduction that Maryland al lowed for income taxes they had paid in other states where they o wed
income tax was structured in a manner t hat was l at e r recognized as b eing in vio lat ion of

t he do rmant Commerce Clause of the United States Constitution. After the Maizels filed their original returns for 2006 through 2011, a chal lenge to the Maryland tax provision

was succes sfully r aised by taxp ayers na m e d Brian and Karen Wynne

. See Maryland State Comptroller of Treasury v. Wynn e , 431 Md. 147 (2013), aff’d , 575 U.S. 542 (2015) (h ereinafter “ Wynne I

” ), a nd W

y nne v. Comptroller of Maryl and , 469 Md. 62 (2020 ) ( hereina fte r “ Wynne II

” )

. I n Wynne I

I , 469 Md. a t 6 7, t he Cour t of Appe als summarized
the Wynne I litigation ve ry briefly as follows: The litigation began when the Wynnes cha ll enged an aspect of the Maryland income tax law

– in particular, the credit al lowed by Stat e law against a Maryland r esident ’ s in com e tax liabi lity base d on taxes the resident paid to other states on income derived from those states. The Wynnes argued tha t the Maryland tax scheme discriminated against interstate commerce and thus v iolated what i s known as the dormant Com merce Cla us e of the federa l Constit ution. Both this Court a nd the Supreme Court, in closely divided decisions, agreed with that argument.2

Beginning in October 2013, the Maizels attempted to take advantage of the

W ynnes ’ s uccess by seeking refunds for the portion o f the taxes that the Mary land Court of Ap peals had decla red unconstitutional in Wynne I

. But, becau se more than th ree years had elapsed between the time the Maizels paid the ir ta xes ( witho ut r eceiving ful l credit for taxes paid to ot her states ) a nd the da te the Maizels fi led amend ed returns seeking to
take ad vantage of the Wynne I ruling, the Co mptrolle r denied the refun ds because the
Maizels ’ clai ms were filed after the three

- year s tatute of limitations p re scri bed b y
M aryland Code (1988, 2016 Rep l. Vol. ), Tax

– General Article ( “ T G ” ), § 13

- 1104(c)(1).
That statute provid e s that, subject to exceptions that are not pert in ent here , “ a claim for refund or credit of overpayment of

. . . i ncome tax may not be fi led after the periods of
limitations for f

iling c l a ims fo r refu nd or credit o f overpayment set forth in [26 U.S.C.] §
6511 of the Internal Revenu e Code , ” which requires such claims t o be filed “ within 3 years from the time the return was filed or 2 years f rom the time the tax w as paid,
whichever of such pe riods expires the later

. ” Although all of t he Maizels ’ amended returns seeking refunds were filed beyond
the t im e lim i t pres cribed by TG § 13

- 1104(c)(1), th e Maizels ar gued that their refund
claims should nevertheless be co nsidered timely pursu ant to th e except ion prov ided i n
T G § 1 3

- 1104(j), which states:

Notwithstanding subsection (c) of th is section, a claim for refund or credit for overpayment of income tax attributable to a right to a reduction in
a person ’ s Maryla nd income tax that is established by a dec ision of a n a dmini strative board or by an app eal of a decision of an administrative board may be filed within 1 year after the date of a final decision of the administrative board or a final decision of the h ighest court to which an appeal of a fin al decis ion of the ad minis trative board is taken.3

T h e Maizels took the position that they were entitled to file claim s for refund s of all taxes they had overp aid (because of not receiving full credit for th e taxes they had

pa id to other states) at any p oi nt in th e past so lon g as the y filed th ose claim s f or re fund s
with in one year after the date the Sup reme Court issued its decision in Wynne I o n May

1 8, 2015

. After the Co mptroller rejected th e Maizels ’ arg ument that , without regard to the
normal statute of limit ations, they were entitled to file their re fund claims within one year
after the Su preme Court ’s decision in Wynne I , t he Maizel s appealed to the Maryland Tax
Court , which heard the matter de no vo an d concluded that , because the Maizels were not

p a rt ie s in Wynne I , the y were not entitled to the e xt ra one
- year provided by TG § 13

- 1104(j)

. The Maizels filed a pe tition for judicial review in the Circuit Court for Montgomery County

. After that court aff irmed the ruling of the Ta x Court , the Maizels

fi le d this appeal, in wh ich they have raised the fol lo wing questions fo r o ur review:

1. Did the Tax Court err in concludi ng that § 13

- 1104(j) does not apply to
a ppellant s’ amended Maryland income tax returns seek ing Wynne refunds for the r elevant y ears?

2. Does d en ial of a ppellan ts’ W ynne refunds for the r elevan t y ears violate
a pp ellants’ rights to due process under the 14 th A mendment a nd/or the Maryland C onstitution?

3. Did th e Tax Court abuse its discretion or other wise commit reversible error in allowing a ppellee ’s assert ion of p rivil ege in respect of certain do cu ments sought by a ppellants in discovery?

Because we conclude t hat the Ta x Court correctly ruled tha t the extra time for filing a refund claim pursuant to TG § 13

- 1104(j) is available only to the parties t o the4

a dministr ative proceeding described in tha t section, we shall affirm the Tax Court’s

r uling denying the Maiz els ’ claims f or refunds

. FACTS AND PROCEDURAL HIST ORY During the relevant perio d of 2006 t hrough 2011, t he Maizels resided in Montgomery Co un ty, Mar yland

. M r. M a ize l w as a par tner in a law fi rm that had offices

in New York and California , a nd he paid income taxes in those states as well as in Maryland.

T he Court of Appeals explained in Wynne I , 431 Md. at 154, that a 1975
amend ment to Ma ryl an d tax la w l im ited the cr e d it agains t income tax liabilit y that could be claimed by Maryland residents wh o ear ned taxable income that was also subject t o
taxation in other states , noting : “ The Maryland inco me tax law reaches all of the income of a Marylan d resident

. T he Stat e i n c ome tax law al lows a credit ag ainst an individual ’ s State tax liability for income taxes paid to other stat es based on the income earned in
those states. ” But, t he Court exp lained in Wynne I , after the General Assembly amended

Ma ry land ’ s tax la w in 1975 , the cr edit was no longer allowed to be claimed against Maryland ’ s “ county ” income tax for income tax es Marylan d residents had paid to other

stat es
. Id . at 157 (citing TG § 10

- 703(a ); Comptroller v. Blanton , 390 Md. 528 (2006) )

. Wh en the Wynn es claimed the full credit on the ir 2006 tax retu r n against all Maryland income tax, includi ng the county portion , the Comptroller assessed them for a deficiency in the amount of Maryland taxes paid. Id

. at 159. The W ynnes appealed to
the Ma ry la nd Tax Cour t a nd argued “ that the limitation of the credit to the State tax for tax payments made to other states discriminated against interstate commerce in violation5

of the Commerce Clause of the Unit ed States Constitution. ” Id at 160. T he Tax Cou rt rej ected the W yn n es ’ argument, but , up on judicial revie w, the Circuit Court for H oward County reversed the Tax Court and ruled that the t ax scheme wa s in violation of the
dormant Commerce Clause. Id

. Th e Court of Appeals granted the Comptroller ’ s peti ti on fo r certiorar i a nd
affirmed the circuit court ’ s ruling , holding in Wynne I that “ the failure of the Maryland
income tax law to allow a cre dit against the coun ty tax for a M aryland resident taxpayer
with respect to pass

- through income of an S corporati on that arises fro m a ctivities in
another state and that is taxed in that state viola tes the dormant Commerce Clause of the
federal Constitutio n. ” Wynne I , 431 Md. at 17 6

- 7 7 (fo otnote omitted)

. The Court

e mphasiz ed : [T] he cou nty income tax itself is not un constit utional. No r i s the credit, which serves to ensure t hat the Maryland income tax scheme operates within constitutional constraints. Nor i s the Mary land income tax law g e ner ally. What is unc onstitu tional is the applicati on

— or lack thereof

— of the cr edit to th e county in com e tax [ for residents who paid income t axes to other states ]

. Id

. at 177

- 78. The case was remanded to the T ax Court for re ca lculation of the Wynne s ’
tax li abil ity

. The opinion of the Court of Appeals in Wynn e I was filed on Janu ar y 28 , 2013,
and ref ile d M ay 17, 2013, with minor revision s made in re spo nse to a motio n for
reconsideration. The United States Su preme Court granted certiorari on May 27, 2014,

572 U.S . 11 34 (20 14), an d a ffirmed the ruling of the Mar yland Court of Appea ls o n May
18, 2015, 575 U .S. 5 42 (2015). The majority opinion of t he Supreme Court observed:6 This case involves the constitutionality of an unusual feature of Maryland ’ s personal inc ome tax scheme. Like m any other Sta tes, Maryland taxe s the income its r es idents earn bo th within a nd ou tside the State, as well as the inco me that nonr esidents earn from sources within Maryland. But unlike mo st other States, Maryland does not offer its
res iden ts a full credit against the in come taxes that th ey pay to other S ta tes. The effect of this sc hem e is that some of the income earned by Maryland
re sidents outside the State is taxed twice. Maryland ’ s sche me creates an incentive for taxpayers to opt for int rastate rather t h an interstate economic activity.
575 U.S. at 54 5. The Supreme Cou rt held tha t t hi s discriminatory treatment ( i.e ., th e less
favorable tax treatment ) of income earned by residents as a co nsequence of inte rstate
commerce was a violation of the dorm ant Com mer ce Cl ause. Id

. T he Court of Appeals observ ed i n Wynne II , 469 Md . at 75:

B oth this Court an d the Supreme Court held [in Wynne I ] that extension of the tax credit to the county portion of the income tax would cure the constitutional defe ct, but both d ecisions also ack nowledged that there might be ot he r ways of adjustin g the State in come tax law that would
avo id the sort of discrimination against interstate commerce forbidden by the dorma nt Commerce Claus e. 431 Md. at 189, 64 A.3d 453; [57 5 U.S. at 568 , ] 135 S. Ct. at 1 806.
The Genera l Assembly opt ed to amend t he Ma ryl an d tax law “ t o allow a tax credit against the count y portion, as well as the state portion, of the Maryland income tax f or income taxes paid in other states

. ” Wynne II , 469 Md. at 75 a nd 78

. Sometime i n 2013, a fter the Court of Appe al s decided Wynne I , 4 31 Md. 14 7, t h e
Ma izels’ accountant advis ed them tha t they should file amended returns to seek refunds
for the taxes th ey had paid to cover the county portion of Ma ryla nd income taxes a s to

w hich the y did not claim or receive cre dit f or income taxes paid t o New York and7

California

. The t imeliness of the ame nded returns the Maizels filed in an effort to obtain
such refunds is a t issue in this appeal.
For the years t hat are the subject o f this appea l, the Maizels file d their original t ax
returns and amended returns on the foll owing dat es :

TAX YEAR DATE

ORIGIN AL R ETURN FILED SIGNATURE

DATE ON THE AMENDED RETURN DATE AMENDED

R ETURN R ECEI VED BY COMPTROLL ER 2006 June 11, 2007 February 26 , 20 16 March 1, 2016 2 007 April 14, 2008 Febr uary 26 , 2016 March 1, 2016 2008 Jul y 15 , 2 009 February 26, 2016 March 1, 2016 2 009 June 1 6, 2010 October 10, 2013 October 28, 2013 2010 August 11, 2011 October 15, 2014 Nov ember 5, 2014 2011 Oc tober 5, 201 2 Oc tober 14, 2015 Octo ber 20, 2015

The Com ptrolle r denied the Maizels’ claims f or t hes e r efunds as untimely

pursu ant to TG § 13

- 1104(c)(1) , which , as noted abo ve, requi res that “ a cla im for refund

o r credit of over pa yment of . . . income tax may not be fil ed after ” the period of l imitation

in § 6511 of t he Internal Revenue Code , which, i n turn , requires fe deral claims to b e filed
wi thin “3 years from the time the ret urn was filed or 2 years from the time the tax wa s paid, whicheve r o f such periods expi res t he late r . . . .” 26 U.S.C

. § 6511

. It is not
d is puted that each of the six amende d ret u rn s filed by the Maizels (for the tax y ears 2006
th rough 201 1) w as filed after the perio d of limit ations for claim s of overpayment set fo rth

in § 65 11 of the Internal Revenue Code

. Th e Maizels appealed the Comptr ol ler’s decision to the Tax Court

. T hey asser te d
that the S upreme Court’s decision i n Wynne I was the “final decision of the highest cour t

to w hich an appeal .

. . [wa] s taken ” relative to th e adm inistrativ e ruling that8

“ establ ished ” their right to a refu nd , and the ir deadlin e for filing for a refund t her efore qualifie d for the TG § 13

- 11 04(j ) exception to the normal period of limi ta ti ons r egardl ess
of w hether the y were parties in the Wynne I li tigat i on
. Bu t t he Co mptroller maint ained
th at the normal peri od of limitations applied, and th at th e p ossibl e extension pursu ant to
TG § 13

- 1104(j) applied only to the part ies who were the litigants in the admini strative

pro ceeding referred to in that sub s ection. Th e Ta x Court agreed with t he Co mptroller ’ s position

. In its oral ruling , the Tax Court st ate d : [W] he n [TG § 13

- 1104(j)] s ays “a person’s Maryland income tax,” they’re talk ing about the individual taxpayer and that t axpayer’s process to get an admi nistrative rev iew of some fact of t he taxpayer’s taxes or g oe s to co urt over some part of some fac t o r some th ing that affects thei r taxes. It’s no t intended for you to piggyb ack on someone else’s appeal pr ocess.
. . . [T] his case applies to the Wynnes indi vidually , all the way through the S upreme Court, because th ey were the pers ons that were doing the ap pealin g. For the Su preme Court to say that th e statute is unc onstitut ional, that did not change your ind ividual situation w ith respect to your refund or no t. It made the statute unconstituti onal. But whether o r not you get a re fund, you need to go look at the re st of the sta tutes of the state of Mary land to see ho w to apply for a refund and whether or not yo u are entitled to a refund. “J” doesn’t affect you. [S ection] 13

- 1104(j) didn’t extend the time to you to file f or a refund for you

. It only did it f or the pe op le who did that appeal.

B y order d ated Octobe r 11, 2017, the Tax Court affirm ed the Comptroll er’s d enial
of t he Maizels’ claims for tax refunds.

T he Maize ls sought judicial review in the C i rcuit Co urt for Mo ntgomery County , which affirmed the de cision of the Ta x Court

. In a written opinion, Judge Ro nald B.

R ubin explained :

At common law, a tax p ay er had no right to a refund of taxes erroneously col le cted by or paid to the State. Absent a sta tute a utho rizing a9

refund, a taxpayer who “ voluntarily ” a lbeit err oneous ly or incorrectly paid
a t a x could not sue the collector to recover. Apo stol v. Anne Aru ndel Count y , 288 Md

. 667, 672

- 73 (1980). If enact ed, a statu t ory remedy is exclusive, and the st at ut e serve s both as the remedy and a limitation o n the government ’ s lia bi lity to refund any “ erron eously colle cted ” tax. See S tate v. Sharafeldin , 382 Md. 12 9, 147

- 50 (2 004); Halle Dev. , Inc. v. Anne Arundel County , 371 Md. 312, 324

- 30 (2002). Tax statute s of limita tion cannot be ignored or modified by the Co m ptroller, see Un it ed States v. Garbu t t Oil Co. , 302 U.S

. 528, 533

- 35 (1938), and are not subject to any

“ judge

- made ” e quitable exceptions. See United States v. Brockamp , 519 U.S . 347, 352

- 54 (1997).
The [Maizel s ’ ] claims f

or refund are barr ed because eac h claim wa s file d more than three years after the origi n al return was filed. The [Maizels] contend n onethel ess that th eir refu nd claims did not r ipen until the Supreme Court iss ue d its decision in W yn ne on May 18 , 2015. They assert, therefore, that their c laims fall withi n the exception described in § 13

- 1104( j ). The court disagrees. * * * The Supreme Court ’ s de cisio n i n Wynne did not make what Mar yland did unconstitutional. Th e discriminatory ta x was unconstitu tional when it was enacted [in 1975]

. The Su preme Cour t simp ly explained the Commerce Clause effect of Marylan d ’ s system of taxation. Nothing in the Supreme Co urt ’ s decis ion (or, for that m atter the earlier decision of t he Court of Appeal s) altered or cre ated the [Maizels ’ ] right to a refund. That
r ight was e stab li shed when they paid the unconstitutio nal tax. T hey simply waited too long to assert their claim. “ A constit utional claim ca n b ecome time

- barred just as any ot her cl aim can. ” Bl ock v. Nor th Dako ta ex rel. Board of Un iv. and School Lan ds , 461 U.S. 27 3, 292 ( 1983).
The e xception created by § 1 3

- 1104(j) does not aid the [Maizels] because they did not receive a final decis ion from an administrative board or tribunal. In other wo rd s, § 13

- 1104(j) appli es only to the specific taxpayer who receive d t he final ad ju stment report from the Comptroller, o r were pa rties to the appellate decision rev iewing that adjustment

. This reading of § 13

- 1104(j) is confirmed by a review of its legisl at ive history and t he facts of the case that spurred its enactment. Suf fic e it to sa y that § 13

- 1104(j) was not enacted t o aid tax payers wh o do not file refund claim s within the time requ ired by § 13

- 1104(c ), [a nd] do not themselves litigate the issues pe rt inent to their tax obligation but later simply come across a favora ble ap pella te de cision in a case prosecuted by some o ther taxp ayer. T he ca refully crafted refund scheme e stablished by § 13

- 1104(c ) would10

have no meaning if taxpayers , who failed to compl y with it , were no ne theless allowed to b ring refund c laims simply bec au s e o f actio n t aken by some other taxpayer. See Unit ed Stat es v . Clint wood Elkhorn M ining Co. , 553 U.S. 1, 8

- 9 (200 8). Contrary to the ir contentions, the [Maizels] were not denied due p rocess. The General Assembly has e stablished a d etailed refund schem e

“ tha t subje c ts complaining taxpayers to vario us req uirements b efore they can bring suit. ” United States v. Clintwood Elkhorn M i ning C o ., 553 U. S. at 11. N othing stopped the [Maizels ] from complying with § 13

- 1104(c)

. They knew all of the facts necessar y to pro secute t he ir refund claims well before the Supr eme C ourt d ecided Wynne

. No action by the Stat e gove rnment prevented the tim ely filing of their refund claims. Like the taxpayer s in Wynne , the [Maizel s] could have challe nged the validity of Maryland ’ s re f

us a l to al l ow a credit for the “ county ” portion of the state in come tax when they filed their retu rns or paid the ir taxes. The [ y ] did not do so , and cannot now be heard to compl ai n that some inaction by the Comptroller interfere d with their rights.

. . . Similarly un availing is the [Maizels ’ ] contention that language in the 2015 Bud get Recon ciliation and Financing Act authorize d refund claims independent of the pertinent prov is ions of the Tax General Article. The direc ti on in Section 27 of t he Act [cal ling] for the At torney Gener al to review the effect o f Wynne simply did not dispen se with otherwise applica ble refund c laim requ irements. Finally, the Maryland Tax Court did n ot plainly abuse its discretion when it denied the [Maizels ’ ] motions to compel

. See Brown v. D aniel Realt y Co ., 409 Md. 565, 583

- 84 (2009). That tribunal correctly balanced the [Maizels ’ ] asserted need fo r t he documents agains t the C omptroller ’ s privile ge asserti ons. Hamilton v. Verdow , 287 Md. 544, 563

- 64 (1980). This court cannot say that the M ar yland Tax Court got it w rong, much le ss that its decision was so wide of the mark that it was not a reasonabl e exercise of discretion. In any event, the cont es ted ruling s, even if
errone ous, have no effect on the outcome in this case. Any a sserted eviden ti ary error, therefore, is harmless.

T he Maize l s filed th is timely appeal.11 STANDARD OF REVIEW

In Frey v. C omptroller of Treasury , 422 Md. 111 , 136

- 3 8 (20 11 ) , cert. denied , 566 U.S. 905 (2012), t he Court of Appeals desc ribed the standard of revi ew of dec is ions of
the Tax Court as follows :

Th e Tax Co u rt is “an adjudicatory administrative agency in the executi ve branch of state government.” Furni tureland S. , In c. v. Comptroller , 364 Md. 126, 137 n. 8, 771 A.2d 1061, 1068 n. 8 (2001). As such, t he Tax Court i s subject to the same standards o f judi cial re v iew as ot her administrative agencies. T.G. § 13

- 532(a)(1) (“ A final order of the Tax Court is s ubject to j ud ic ial review as provided for contested c ases in §§ 10

- 222 a nd 10

- 223 of the State Gover nme nt Article. ”) ; Supervisor of Assessments v. Hartge Yacht Y ard, Inc. , 379 Md. 452, 461, 842 A.2d 732, 737 (2004). M oreo ver, because we are reviewing the d ecision of a n a dministrative agency, our review looks “through the circu it court ’ s and intermediat e app ellate cour t ’ s decisions

. . . and evaluate s the d ecision of the ag ency.” People ’ s Counsel for Baltimore County v

. Sur ina , 400 Md. 662, 681, 929 A.2d 899 , 910 (20 07 ).

. . . [W] e may not uphold the fin al decision of an a dministrative agency on grounds ot her than the f in dings and reasons set for th by the ag e ncy. Ev ans v. Bu rruss , 401 Md. 586, 593, 933 A.2d 872, 876 (2 007); Dep ’ t of Health & Mental Hygiene v. Campbel l , 364 Md. 108, 123, 771 A.2d 1051, 106 0 (2001) (“[A]n app ellate court will review an adj udi catory agency de cision solely on the grou nds r elied u p on by t he agency .”). Although we retain the power to review admin istrative decisions, judicial revie w of the s e decisions is narrow. We shall not “s ubstitute [our] jud gment for the expertise of thos e p ersons who con st itute the administrative agenc y.” Peo p le ’ s Co unsel for Baltimore County v. Loyola College in Md. , 406 Md. 54, 66, 956 A.2d 166, 173 (2008) ( intern al quotation marks omitted) (quoting Unit ed Parcel Serv., In c. v. People ’ s Counsel for Balt imo re County , 336 M d. 569, 576

- 77, 650 A.2d 226, 230 (19 9 4)). Ac cordingly , we review the Tax Court ’ s factual findin gs and th e inferences drawn therefrom under a sub st an tial evidence standard. Surina , 400 Md . at 681, 929 A.2d at 910; Md. Aviation Admin. v. No land , 386 Md. 55 6, 571, 873 A.2d 1145, 115 4 (20 05) (“ A review ing court should defer to the agency ’ s fact

- finding and drawi ng of inferences if they are suppor ted by th e record.” (quoting Bd. of Physician Q uality Assurance v. Banks , 354 Md. 59, 67

- 69, 729 A. 2d 376, 380

- 81 ( 1999))). Under this standa rd, w e cons id er “wh ether a re asoning mind reasonably could have reach ed the12

factual conclusion the agency reached.” S ta te In s. Comm ’ r v. Nat ’ l Bureau of Cas. Unde rwriters , 248 Md. 2 92, 309, 236 A.2d 282, 292 (196 7) ; see also Sur in a , 400 Md. at 681, 929 A.2 d at 910 (e xp lainin g that und er the substantial evidence standard co urts examine whether the administrative record co nt ains “such evidence as a reasonable mind mi ght accept as adequ ate to support a conclusion”) ( in ternal quotati on marks omitted) (quoting M

ayor and Al de rmen o

f Annapoli s v. Annapolis Waterfront Co. , 284 Md. 383, 398, 39 6 A.2d 1080, 1089 (1979)).

Just a s we defe r to an agency ’ s factual findings, we afford great weight to the agency ’ s legal conclusi on s when they ar e premised upon an interpret ation of th e statut es that th e agency administers and the regulation s promulgate d for that purpose. Surina , 400 Md. at 682, 929 A.2d at 911; Noland , 386 Md. at 57 2, 873 A.2d at 1154

. This deference, however, “ext en ds only to the a pplication of the statutes or r egulat io ns tha t the agen cy administers.” Loyola College , 406 Md. at 67, 956 A.2d at 174. When an agency ’ s dec i s ion is n ecessarily premised upon the “applicat ion and analysis of caselaw,” that decision rests up on “a purely l eg al issue uniquely within t he ke n of a r eviewi ng court.” Id. at 67

- 68, 956 A.2d at 174.

I n this case [ i.e. , in Frey ] , the Tax Court ’ s deci si on required t he
a pplicatio n and analysis of cases interpr eting the United States Constitution
as we ll as the Mary l a nd Constitution and Declaration of Ri ghts

. Under these circumstances, we eval uate an agen c y ’ s legal conclusions to determine whether they ar e based upon an error of law, withou t deferen ce to the agency ’ s determination. Id. at 68, 956 A.2d a t 174; Surina , 40 0 Md. at 683, 929 A.2d at 911; Advent ist Health Care, Inc. v. M d. Health C

are Comm ’ n , 39 2 Md. 103, 120, 896 A.2d 320, 331 (2006).

DISCUS SI ON

I . Statute of Limitati ons
The Maiz els do not contend that they filed any of the six amended t ax r eturns t hat

ar e the subject of t his appe al with in the time limit imposed by TG § 13

- 1 104(c)(1). But
the y argue strenuously that TG § 13

- 1104(j) expressl y provid e s an exc eption to the generally ap plicabl e time limit , and , they contend, its pl ain language pe rmitted them t o13

file their claim s for refund s within one year after the United States Su preme Court iss ue d its opinion in Wynn e I on May 18, 2015

. All of their amended returns were filed before May of 2016 , and therefore , a lthoug h all of the Maizels ’ amend ed returns (for wh ich

re fu nds were denied) were filed beyond th e t ime lim i t pres cribed by TG § 13

- 1104 ( c)(1),
th e M aizels a s sert that their refund clai ms should nevertheless be co nsider ed timely

pursu ant to the exception prov ided in TG § 1 3

- 1104(j)

. A s not ed above, that s ubsectio n

states: Notwithstanding subsecti on (c) of th is section, a claim for refund or c re dit for overpayment of income tax attribut ab le to a right to a reduction in a person ’ s Maryla nd income tax t hat is established by a decision of an
a dministrative board or b y an appeal of a decision of an adm inistrative board may be f

iled within 1 ye ar af

te r t he date of a final decision of the admi ni strative board or a final dec ision of the h ighest court to which an appeal of a fi nal decision of the ad ministrative board i s ta ke n.
The Maizels contend that the plain langu age of thi s st atutory provisio n cle ar ly and unambig uously applies to their situ at ion. They claim that they mee t the definition of “ a

person ” whos e claim for refund or right to reduction in M aryland income tax li ability was

“ establish ed by

. . . an a p peal o f a decision o f an administra tive b oa rd ”

— n amely the appeal from the Tax Court ’ s ruling in Wynne I

. Because the y meet that test, they
contend, the ir refund claims we re timely filed with i n one year after the fin al decision of the highest court to wh ich the parties app eale d the Tax Cour t ’ s rul in g i n Wynne I

. The C omptrolle r, too, con te nds that “ [t]he plain language of § 13

- 1104(j ) is unambiguous. ” Bu t, a ccording to the Compt roller, th is pl ain and unambiguous stat ut e clearly establishe s : “ A taxpaye r has one year to file a r efund claim a fter that t ax payer
receives a final deci sion from a n administrative board or an appe lla te tribunal. ”14

Although b oth par ties to this appeal assert that TG § 13

- 1104(j) is unambigu ous,

w e are unable to conclude , w ithout adding to, or modifying , t he wo rds in the statute, t hat either party ’ s interpreta tion i s without a rational basis. Because the provision is
reasonabl y capable of more than one meaning, it is ambig uous.
The ambi gu it y st em s in large part from the reference to “ a person ’ s Maryla nd

i ncome tax ” liability. The Maizels would read that language to apply to “ any per son ” who might be able to assert a legal argument for a tax re duction based upon any ruling of

any admin ist rati ve a ge ncy at any time. The Co mp t roller w o uld rea d that same langua ge

as app lying only to “ a person , ” as in one person, singu la r, whose Maryland tax li ability

was e stablis hed by a specific administrative proceeding in which that taxp ayer was a

pa rty.

I n Le wis v. State , 348 M d. 648, 653

- 54 (1998) , Judge Irma S. Raker expl ained tha t an ambiguity wi ll be found when words of a stat u t e are reasona b ly ca pable of m ore than

one mea ning. Writing for the Court of Appeals, she stated:

In construin g a legisla tive enac tmen t, the paramount objective is to
asc ertain and give effect to the inte nt of the Legislat ure. Harris v. State , 344 Md. 49 7, 510, 687 A.2d 970, 976, cert . denied sub nom . Koenig v. Maryland , ––– U.S.

–––– , 118 S.Ct. 605, 139 L.Ed.2d 4 92 (1997); Tapsc ott v. S ta te , 343 Md. 650, 657, 684 A.2d 439 , 442 (1996); Frazier v. W arfield , 13 Md. 279, 301 ( 1859). To discern legislative i ntent, we look first to the lang uage of the stat ute, giving those words their ordinary and natural meaning. Gardn er v. State , 344 Md. 642 , 647

- 48, 689 A.2d 610, 612

- 13 (1997 ). When the plain meaning of t he language is clear a nd unambiguous, and consist en t with both the broad purposes of the legi slation, and the specific purpose of the provision being interpreted, our inquiry is at a n en d. P hi lip Electronics v. Wright , 348 Md. 209, 216

- 17, 703 A.2d 150 , 15 3 (1997); Frank v. B al timore County , 284 Md. 655, 6 61, 399 A.2d 250, 254 (1979). If, however, the mea ning of the plain language is ambiguous or unclear, we seek to di scern legis lativ e in tent f rom surrounding15

circumsta nces, suc h as legislative history, pri or case law, and the pu rposes upon which the stat ut ory framework was based. Haupt v. S tate , 34 0 Md. 46 2, 471, 667 A.2d 179, 183 (1995). As we recently observed in Grec o v. State , 347 Md. 423, 4 29, 701 A.2d 419, 421 (19 97), in t he context of statutory co n struction, “ambiguity” is most accurately defined a s “reasonably capable of more than on e meanin g.”

Wh en the words of a statutory provision are reasonably capable of
m ore than on e mea ning , an d we examine the circumstan ces surro unding the enactment of a l egislative provis ion in a n effort to discern legi sl ative intent, we interpret the meanin g and ef fect of the language in light of the objectives and purposes of the provi sion enacte d. Ga rgli ano v. State , 334 Md. 428, 435, 639 A.2d 675, 678 (1994); see Kacz orowski v. City of Baltimo re , 309 Md. 505, 513

- 16 , 525 A.2d 628, 632

- 33 (1987). Such an i nterpret ation mu st be reasonable and consonant with logic and common
sense. Armst ead v. Stat e , 34 2 Md . 38 , 56, 673 A.2d 221, 229 (19 96). In
a ddition, we seek to avo id construing a statu te in a manner that leads to a n illogical or untenable outcome. Greco , 347 Md. at 429, 701 A.2d at 422; Fraternal Order of Police v. Mehrling , 343 Md. 1 55, 174, 68 0 A.2 d 10 52, 10 62 (1996).
Accord Webs ter v. Stat e , 359 Md. 465, 480 (2 000)

. W e conclude that the la nguage of TG § 13

- 1 10 4(j) is a mbiguous because it is

“ reasonably capable o f mor e tha n one meaning, ” Greco , 347 Md. at 429 , and we shall
ther efor e consider the c ircu msta nc es surrounding the ena ctment of th e statutory provision

. Am ong the exhi bit s pre sented to the T ax Court w er e documents that reflected the
apparent impetus for the General Ass embly ’ s decision to add subsectio n (j) to TG § 13

-
11 04 i n 2003. Th e Comp t rol ler ’ s versio n of the legis lative history of T G § 13

- 1104 (j)

w as summa rized in the Not ice of Fin al Determinatio n that the Comptroller had sent to the
Maizels on December 2, 2016

. In that notice, which was an exhibit in th e Tax Court , the16

Comptroller rejecte d t he M aizels ’ argument that their clai ms w ere timely f iled pursu ant
to TG § 13

- 1104(j), and ex plained :

Sect io n 13

- 1104(j) is very limited in its application and th e statute was very ca refully worded to en sure it was not construed too broadly. The history be hin d the introduction of the b ill an d th e Comptroller ’ s comments s upport this fact. An a rtic le in the Fr ed erick News Post dated May 25, 2001, explained the history of the bill as follows: Commander Douglas Dellinger was dismissed fr om the U. S. Nav y in 199 0. H e appealed the dismissal a nd nin e ye ars later
an a d ministrativ e panel ruled in his f avor , reinstati ng him, retroactiv e to 1990. During the perio d at issue Maryland law exempted military personnel from paying state taxe s. Thus, up on reinstatement, he be cam e exempt from the taxes he had al read y paid to th e state of Mar yland. Because the rul ing took so lo ng C ommande r Dellin ger ’ s refund request was untimely. Commander Dellinger requested assist ance from [ his Maryland State] Senator , A lex Mooney. S e nator Moo ne y understood that the request was unti m el y due t o the three

- year deadline imposed on refund req ue st s. Senator Mooney respo nd ed with the intro duction of a senate bill that was

“ meant to s hield state taxpayers from the red tape of ot her bureaucracies. ” [(Q u o t i ng an article from the May 25, 2001 F re der ick News Post captio ned “ Mooney Says Veto was Pe rso n al l y Motivated

. ” )]
The exc eption that was ultimately codified as section 13

- 1104(j) was introduced by Senat or Mooney as Senate Bill 3 44 in the 2001 Maryland l e g islative session. It was vetoed by G o ve rnor Par ris Glendening

. In a letter dated May 17, 200 1 , to Mike Miller, Jr. , Presid ent of the S enate, Governor Glendening stated he was ve toing t he bill although the Office of the Comptrolle r reported that the bil l w o uld likely impact “ one or two taxpay e rs a y ear. ” He explained that although the bill would ap ply in

“ extremely rare ” cases , that he was concerned with the congruity of federal
an d State law. [Citing h ttp://mgaleg.maryland.gov/ web m g a / frmMain.aspx?ys = 200 1r s / veto_le tters /sb0344.htm ]

* * *17 . . . Go vernor Glendening ’ s veto letter, and the history be hind the introduction of the bill when read wit h the statutory langu age, evidence the limited application of the exception. The bill was introduced to afford
r el i e f to a member of the military whose t ax s tatus was in question for nine years pending the de c ision of an administrative bo ard. . . . The exception in section 13

- 1104(j) is applicable to the taxpayer who is pursuing the decision of an admin istrat ive b oa r d or an appeal of a decision of an a d m ini s trative board, but no t others who are not named i n t he ap peal. The Maizels were n ot a party to Wynne , and are not entitled to an extension of the statu te of limi tations based on the result of an appeal to which th e y were not a party.
Othe r documents tha t were intro duce d in t he Tax C ourt relativ e t o th e le gislative history of TG § 13

- 1104(j)

— which was finally enacted in 2003 as Chap ters 71 and 72 , Laws of Maryland 2003

— included : (1) Senato r Mooney ’ s letter to t h e C o mptroller ’ s Compliance Division date d Ju ly 7, 2000, seeking it s assistance regar ding “ the b es t way to
revi se the current law ” to avoid “ the unfai rness ” of Mr. Dellinger ’ s ca se; (2) one page of

a n internal memorand um of the Comptr oller ’ s office dated J u ly 1 3, 2000, with a subject heading of “ Expa nsion of Statu te of Li mit ations for non
- IRS appea ls , ” and referring to
that issue as having been “ raise d by State Senator Alex X. Moon ey on behalf of Douglas C. Dellinger ” ; (3) a hand

- writt e n memo dated July 20, 200 0 , to the Director of the Comptroller ’ s C omplian ce Division , in dicatin g a willingness to w or k with the “ Senator in drafting le gislation t o correct problem in future ” ; (4) the first page of a letter dated
November 15, 2000, from th e Comptroller ’ s off ice t o S enat or Alex Mooney, proposing langua ge f

or an a mendm ent to TG § 13

- 11 04(c)(2) to provide fo r filing a claim for refund
of an ove rpayment within one year a fter “ a fin al decision of an administrative board . . . establishing the ri ght of the person to a red u ctio n in the person ’ s taxable income ”18

(c ap italizat ion modified ); ( 5) a letter dated Febru ar y 21, 2001, from Douglas C. Delli nger
to the Chair of the Senat e Budget & Taxation Committee, urging passage of that
session ’ s S enat e Bill 344 “ to correct an ine qui t y in the existing [ tax ] law ” that ca me t o light in Mr. D elling er ’ s personal experience be ca use , “ by the time the administ rative

board released its decision enti tling me to [a] refund, it was too late per current regulations for t he Comptroller to issue th e tax refun d ” ; (6) a letter dated Feb ruar y 3,

200 3, from Com ptr oller William Donal d Schaef er to the C hair of the Senate Budget &
Taxation Committee , urging passa ge of Senate Bill 175

— o ne of the bill s that would ultimately become c odified as TG § 13

- 1104 (j)

— t o “ correc t an inequity in the exist ing
law relating to the ti mely filing o f a claim for re fund o f income tax ” that could occur on

“ occasi ons in which a taxpa yer ’ s en titlement to a refund is e stablished by a decision of a

non
- tax agency following proce edi n gs that extend beyond the three

- year fil ing deadline

u nder Mar yland law ” ; and (7) a Fisca l and Po licy Note rela tive to Senate Bill 175, n oting
that the “ bill is the r esul t of two cases that have been under review by the Comptroll er where taxpayers file d f

o r a refu nd after t he t hree

- year peri od d ue to a disput e of the ir
residenc y sta tus, ” and s ta ting t hat “ only a few case s of this type occur each year ” such
that “ the cu rrent amount of refunds that would be paid as a result of the b ill is less than $10, 00 0. ” No docum ents were introduce d in the T ax Court to refut e the Co mptroller ’ s
contention tha t the int ent of the General Assembly was to permit taxpayers such a s M r.
Dell i nger

— w ho e xperienced a ch ange of sta tus as a result of an a dmin istrative proceeding t hat did not conclude within three years afte r his over paym ent of t axes had19

oc cur red

— t o seek a r efund within one year after the final decision in that a dmini strat ive

proc ess (including any appe al )

. In light of the legislative history of this subsection of TG § 13

- 110 4, we are

p ersuaded that the Tax Court correct ly ruled that TG § 13

- 11 04(j) applie s onl y to the specific taxpayer s who were parties to a decision of an administ rative body or an appe al
of that decision , and therefore , did n ot extend the time li mit established by TG § 13

- 1104(c)(1) for the Maizel s to seek a refund based upo n the defect i n Ma ryland t ax law high lighted in Wynne I

. II
. Due Process
The Maizels assert that, if TG § 13

- 1104(j) did not permit th em to fil e their ref und
claim wi thin the yea r after the Supreme Court ’ s decision in Wy nne I , then the State of Maryland h as deprived th em of their Fourte enth Amendm ent and Maryland constitutional righ ts to d ue p rocess because (1) they were deprived of property ( namely, the ta xes they overpaid to the State pursu ant to a provision that violat ed the dormant Commerce
Clause ) , an d (2) the Stat e failed to give adequate notice to them of th eir right to a refu nd
after t he judicial decision s in Wynne I confirmed the constitutional defe ct in Mar yland ’ s

tax law

. The Maizels assert in their brief that “ the State of Maryland denied Appell ants a
meanin g f ul opportunity to recover the unlawful taxes paid in respect of the Rele va nt Years by failing over a four

- year period [beginning with the ci rcuit co u rt ’ s r uling in f avor of the Wynnes in 2011] to noti fy th em, direct ly or by means of any p ubl ic outreach t o taxp ayers, of the fact that mu ltiple co urt s o f compete nt jurisdi ction had ruled that Appellee ’ s denial of millions of Dollar s o f tax credits to Appel lants and ot her similarly20

situated taxpayers wa s unconst itutional. ” We see no merit in th e M aizels ’ due p r ocess arguments.

T he Maizels refuse to recognize that the State of M arylan d did nothing to prec lude them from asserting the same cha llenge t o Marylan d ’ s tax law tha t the Wynnes

success fully pursued. The Wynnes ’ argument that Maryland ’ s t reatment of inc om e ta xes
that t axp ayers

— i ncluding t he Ma izels

— p aid to ot her sta tes discri minated a g ainst
interstate commerce was not based upon a novel legal p rinci ple that was unf ore seeable until first raised by the Wynne s relative to th eir 2006 Maryland tax returns

. A s Jus tice
Alito o bserved in th e Supreme Court ’ s opinion affirming the ruling of the M a ryland

C ourt of Appeals , the re wa s long

- standing prec edent to support the re sult in Wynne I

. Writing for the 5

- 4 majority , Ju stice Alito stated , 575 U.S. at 549

- 50 :

Unde r our precedents, the dorma nt Commerce Clause precludes States from “discriminat[ing ] between transactions on the bas is of some interstate elemen t.” Boston Stock Exch ang e v. State Tax Comm ’ n , 42 9 U.S. 318, 332, n. 12, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977). T his means, among other thin gs, that a State “may not tax a transaction or incident m or e heavil y when it cross es state l ines than when it occurs e ntirely within th e St ate .” Armco Inc. v. Hardesty , 467 U.S. 638, 642, 104 S.Ct. 2620, 81 L.Ed.2d 540 (1984). “Nor may a State impose a tax wh ich discriminates against interstate commerce either b y providin g a direct comm ercial
a dv antage to local business, or by subjecting inte rst ate commerce to the burde n of ‘mul tiple taxation.’ ” Northwestern States Portland Ce ment Co. v. Minnesota , 358 U.S . 4 50, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959) (citations o mit ted).21

The Sup reme Court st ated: “ Our existing do rmant Commerce Clause c ases al l but
dictate the result reached in this case by Maryland ’ s highest court

. ” Id. a t 550. Th e
Court then cited t h ree case s t hat it considered “ particularly instruct iv e, ” id ., namely , J.D.
Adams Mfg. Co. v. Storen , 304 U.S. 307 (1938); Gwin, White & Pr ince , I nc. v. Henneford , 30 5 U.S. 434 (1939) ; and C entral Grey hound Lines, Inc. v. Meal ey , 334 U.S. 653 (1948). The Court e xplained: “ In all three of these cases, the Court s tr uck down a

state tax s che me that might have resulted in the dou ble taxation of i ncom e e arned out of
the Sta te and tha t discriminated in favor of intrastate over inter st ate economic activity.

. . . Maryland ’ s tax scheme is unconstituti on al for si milar reasons. ” 575 U .S. at 551.
In other wo rds, the legal precede nt that enabled the Wynn es t o p revail in Wynne I
had been a vailable to Maryland taxpayers

— including the Maiz el s

— s ince at lea st 1948, long before the Maizels paid a n y of the taxes they sought to recover in th is case. T h e fact that they did not ass ert that legal ar gument until more tha n t hree years after they had p aid
the taxes i s not due to the la ck of an availa bl e remedy provided by the State of Maryl a nd.

Nor can t h e State be faulted for failing to notify individual multi

- state t a xpayers of Supreme C ourt ju rispru dence regard ing t he d orm a nt Commerce Clause that ha d been the topic of litigati on and judicial op ini on s for d e cades. Cf

. City of West Covina v. Perk ins , 525 U.S. 234, 241 (1999) ( Stating tha t , u nlike the obligation of law enforcem ent agents to give notice of their s eizure of p rop erty , “ [n] o similar ration ale justifies requiring
indi vidualized notice of st ate

- law remedies which, like those at issue here, are e stablished by published, generally available state statutes and c ase law. ” ).22

And the e nfo r cement o f a reasonable st a tute of limi tations

— s uch as the t hree

- year limit imposed upon refund claims by TG § 1 3

- 1104(c)(1 )

— d oes not d eprive a taxpayer of due process. As the Maryland Court of Appeals observed i n Wynne II , 469 Md. at 82

n.26 , “ the S upreme Court i n McKess on [ C or p. v . Di vis ion of Alcoholic Beverage s and Tobacco, Fla. Dept of Business Regulati on , 49 6 U.S. 18 (19 90) , ] . . . indicated that a state could place various constra ints on any refunds, such a s li miting them only to taxpayers
who paid the tax und e r pro test or by enfo rci ng a relatively short per iod of limitations for claiming a refund. 496 U. S. at 50 , 110 S.C t. 2238. ”
In sum, we perceive no mer it in the Maizels ’ conte ntions that they suffered a
deni al of due process.

III . D iscovery
The Maizels’ f

i nal argu ment is t hat th e Tax C ourt abused its d iscre tion by not sanctioning the Comptroller for fa iling to provide a pre

- trial privilege lo g pursuant to Maryland Rule 2

- 4 02( e )(1) and f or withhold ing ce rtain documen ts based upon claim s of

p rivileg e
. We con clude tha t Maryla nd R ule 2

- 402 does not appl y t o proceedings in the
Tax Court, and the Tax Court d id not abuse its discretion in the r uling it made with
respect to the Co mptroller ’ s respon se to the Maizels ’ subpoen a
. “The Maryland Rules per tai ning to pre

- tria l discove ry in ci rcui t c ourt cases do not,

g enerally, apply to administrative proceedings.” H ammen v. Baltimore County Police Dep ’ t. , 373 Md. 440, 457 (2003) ; accord Montgome ry Count y v. Super viso r of Assmts. , 275 Md. 58 , 62 n.4 (1975) ( “ A ppellees ’ re liance upon [ Maryland Rul e 2 0 8] is misplaced
si n ce the Maryland Rules do not govern procedures b ef ore the Tax Court. ”)

. See23

Maryland Rule 1

- 101( b), stating : “ Title 2 [of the Maryland Rules] applies to civil matters
in the circuit courts , except for Juvenil e Causes under Title 11 of t hese Rules and exc ept as otherwise specifically provided or necessa ri ly implied. ” ( e mphasis added )

. The scope of disc ov ery in Tax Court cases is limited. TG § 13

- 521 p ermi ts a part y

to “take a de position in or out of the Sta te in the manner provided by la w for taking depo sitions in a civil case, ” and permits a party to re quest that the Tax Court issue a subpoena commandin g a witness to appear and produce “ any pe rtinent document ” at the
d eposition. But t he Maizels d id not su bp oen a any witnesses to attend a d epos ition.

Ins tead, the Maizels did request, a nd the Tax Court di d issue pu rsuant to TG § 13

- 520(b) (2) , a su bpoena du ces tecum for a Custodian of Records of the Comptroller to

appe ar and produce documents at th e merits hea ring in the T ax Court

. Am ong the

documents the subpoen a requested were “copies of any and all wr it ten comm unications ”

“ relating to whether, when and/or how” the Comptroller notif ied taxpayers of their “refund rights ” gro wing out of the Wynne I liti gation. The Maize ls comp lain that th e Comptroller v iol a ted Maryland Rule 2

- 402 (e)(1) by failing to prod uc e documen ts, and

f ailing to provide a detailed privilege log un til after the hearing on the merits had c losed

. When the pa rties appeared for the merits hearing in the Tax Court on Sep temb er
19 , 20 17 , M r. M aizel asked the court at the outset to compel di sc losure of minutes of a Deputy Comptroller ’ s staff meeting that had been withheld due to a claim of executive privilege. C ounsel for t he Co mptroller represented to the court and the Maizels that all

per t in en t documents had b een provided to the Maizels ot he r than four priv ileged
documents : (1) mi nut es of a staff meeting in the Co m ptr oller ’ s office at which the24

attendees discussed Comptro l ler “ business an d policy ” ; and (2) three doc uments in which
counsel f ro m the Attorney Gen eral ’ s o ffice were providing pr iv ileged legal adv ice and

comment

. But cou nsel for the Comptroller furt her repre sented that , otherwise, “ anything
that was out there tha t w e had that was i n a documen t f orm that wa s responsive to a

docume n t re quest was produced. ”
After listenin g to argum en t from both part ies, the Tax Court s aid to M r. Maizel :

“ I ’m going to suggest th e r emedy for you [ for ] today is I would not let them pre sent any
addi tional d ocuments to Court that they haven ’t already dis c l ose d to you. ” Cf . TG § 13

- 522, w hich permits the T ax Court to apply to the circuit court for that court to issue a show cause order and potentially impose sanctions for contempt i n th e c ircuit court

. Mr. Maizel obje cted that th e suggested remedy w ould n o t re dress the fact that the Comptroller had withh el d the documents identified in its privilege log

. Mr. Mai zel urged the Tax Court to compel disclosure of the minutes identified in the privilege l og in partic ular , not ing the privilege log was lacking the d ate of the communi cations and the
identities of th e parties to the communications

. He acknowledged, however, that the Comp troller ’ s pro duc tion of documents had included an e

- mail that referred to attached
minutes date d April 24, 2014. Mr. M aizel also st at e d th at , although he had hoped to have
the info rm ation before the da y of the merits hearing , “ I don ’ t want to p o stpone this any

more. ”

Cou nsel for the Compt roller then stat ed that the meeting that was the sub ject of t he
withheld minutes was a meeting of “ the assistant dep uty di rector of the [C] omptrol le r ’ s25

o ffice and her directors of the v arious divisions discussing [C] omptroller business and polic y there. ”
Mr. Maizel returned to his complaint regarding the adequacy o f the privi lege log, stating : “ But w he re a priv ileg e[] log is produced, it ’ s my under st anding that that log , at
least under the federal rules . . . needs to indicate who the communications were between and when they happened. ” At that point, counsel for th e C omptroller offered to provide
th at m issing information , sta ting:

I ’ m more than ha pp [y] to give those dates if they were missing or the names of the parties.
In terms of the director ’ s meeting,

. . . there ’ s an e
- mail in there [ i.e ., the documents prev iou sly pro duced] . . . that gives you the dat e and the [ names of the] people that w er e there because th e minutes were distributed to those people. And we apol ogize if the log didn ’ t have that information on it. The other two that had to do with the e

- mail s t hat the attorney

- cl ient privil eg e w a s related to would have been communi cations

. . . . I was the attorney on those p articu lar communications and the d ates[,] again we can give that to Mr. Maizel.
Mr. Maizel began to reque st that the court “ ask th em to produce a log that
shows

— . ˮ C oun sel f

or the Compt roller volunteer ed: “ We will voluntarily do that, Your

Honor. You don ’ t even have to worry about that. ” The court and counsel then moved on
to other motio ns. The Maizels did not request any further relief regarding the Compt r oller ’ s cla ims of p rivilege

. The hearing offi ce r directed counsel for the Comptroller to dra ft orders after the he aring disposing of all of the motions decided that day. The hearing then proceeded , without any obje ction from either party , with the evidentiary pha se
. A t th e conclu sion of the parties ’ presentati on of evidence , the Maiz els26

did not re quest that the reco rd remain open for them to present addit ional evidence and argument regarding the Comptroller ’ s c laim s of privilege. Both parties made closing

ar gument s, and t he hearing o fficer p rovide d an oral decision that same da y (S eptember 19, 2017). O n October 20, 2017, the Comp troller provide d the Maizels a revised privilege log, li sting the same four documents and document identification numbers, and

rea s on s fo r claimin g privilege, adding brief d escr iption s, the document ’ s date ( a lthough
three were describ ed as “ un date d ” ) , and the identity of the author or authors and the recip ients

. In th eir brief in this Court, the Maizels assert :
T he T ax Court ’ s refus al to h old Ap pellee to its DuPont [ v. F orma
- Pak , 351 Md. 396, 406 (1998) , ] privilege burden constitutes an error sufficiently serious to warrant reversal under both Wilson v. Jo hn Crane , 385 Md. 185, 198

- 99 (2005) and In re Adoption/Gu ardianship N o . 3598 , 347 Md

. 295, 312

- 13 (1997) (reversal of the trial court ’ s dis covery ru lings required

“ where it is apparent that some serious error or abuse of discretion o r autocratic action ha s occur red

. ” ). (Emphasis added by the Maizel s.) The y ask that “ this Court dis allow all Ap pellee ’ s priv ilege objections, ” or alt ernatively, “ specifically disallow Appellee ’ s claim of
executive/deliber ative privilege and compel production of the withheld docu me nt [,] ” i.e. , the minutes dated April 24, 2014.
We conclude that the Maize ls wai v ed th ese remedies by failing to eithe r re quest

a nother postponement of the merits hearing , or a t least ask t hat th e record be held open until after the Comptrolle r ’ s revised privilege log had been received and they ha d an opport unity to seek additio nal r e lief f ro m the Tax Cou rt. Because the M aizels asked for nothing further after counsel for the Comptroller agreed to supplement the original27

privilege log on some u nspecified date , the Tax C ourt did not ab use its discretion in proceeding to decide the case ba sed u po n the record made at the heari ng. Moreover, we fail to see how the Tax Court ’s failure to order the Co mptroller to produce the minutes of a meeting held on April 24, 2014, prejud iced the Maizels

. Any
abu se of discretion or error on the par t of t he heari ng examiner appears to be ha rmle ss at

most. See Consolidated v. Standard , 421 Md. 210, 219 (2011 ) (“Even when a trial court
is found to h ave abuse d its d iscretion, it has long been the settled policy of this [C]ourt

not to reverse for h armle ss err or. ” ( int ern al quotation marks and cit ati ons omitted ) ) ;
Flores v. Bell , 3 98 Md. 27, 33 (200 7) ( appellate courts of Maryland “wil l not r everse a
lo wer court judgment if the error is harmless ” and “[t] he burden is on the complaining party to show preju dice a s well as error
. ” (footnote omitted) )

. Th e Maize ls ’ assert ed reason for needing to see these documents is based upon a suspicion that the documents could have supported their hypothesis that the Comptroller ’ s office deprived them o f due process beca use it aff irmati vely worked to
avoid r efund clai m s by w ithholding public not ice of the Wynnes ’ success in the courts.
The Maizel s a sse rt in th eir brief that the Comptroller’s decision not to notify individual

ta xpayers was “the result o f a deliberate deci s ion to withhold o r delay furnishing such
informa t ion to taxp ayers

— a ll while the three

- year statute of limitations worked to extinguish tax payer refund c laims.” Th ey surmise that this conspiracy to deprive them of
the ir due process right to refunds might h ave be en confirme d by the minutes from the

D eputy C omptr oller ’ s meeting.28

Counsel for the Comptroller made clear during the hea ring in the T ax Co urt , and

in the revis ed p rivilege log , that the date of the meeting with the D eputy C omptroller that
was the su b

ject o f the minu tes took plac e on April 24, 2014

. In li ght o f the fact that the Court of Appeals filed a reported o pinion in Wynne I on Ja nuary 28, 2013, any argument
that taxpayers had no pub lic notice of the Wynnes ’ success after t hat dat e d ue to a

ne f arious sch eme of t he Co mptroller is devoid of meri t.
J UDGMEN T OF THE CIRCUIT COURT FO R MONTGOMERY COUNTY AFFIRM ED. COSTS TO BE PAID BY APPELLANTS.