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Du v. Franchise Tax Board

October 26, 2010

BENJAMIN R. DU ET AL., PLAINTIFFS AND APPELLANTS,
v.
FRANCHISE TAX BOARD, DEFENDANT AND RESPONDENT.



APPEAL from judgments of the Superior Court of Los Angeles County. Malcolm H. Mackey, Judge. Affirmed in part and reversed in part with directions. (Super. Ct. Nos. BC363822, BC391413, BC385197)

The opinion of the court was delivered by: Rothschild, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Three couples--Benjamin and Carmela Du, Edward and Annelise Shimmon, and Paul and Patricia Mickelsen--filed complaints for income tax refunds in the superior court. They contended that the Franchise Tax Board (FTB) had improperly charged them interest on delinquent tax payments for a period of time during which interest should have been suspended pursuant to section 19116 of the Revenue and Taxation Code.*fn2 The FTB demurred in one action, moved for judgment on the pleadings in the other two, and prevailed in all three. The court entered judgments of dismissal, and all six plaintiffs appealed.

We affirm as to the Dus and Shimmons because they expressly waived their right to seek a refund. We reverse as to the Mickelsens, however, because they did not waive their right to seek a refund and because the facts necessary to support the FTB's other arguments are neither contained in the Mickelsens' complaint nor judicially noticeable on the record before us.

BACKGROUND*fn3

When the Shimmons filed their original 1999 individual California income tax return in 2000, they reported taxable income of $1,550,340. On or about March 10, 2004, the Shimmons filed an amended 1999 return pursuant to California's "voluntary compliance initiative" (VCI) under which taxpayers who had engaged in abusive tax shelter transactions in any tax year up to and including 2002 could avoid criminal prosecution and various other penalties if they filed amended returns and paid the resulting tax and interest no later than April 15, 2004. (See §§ 19751-19754.) Taxpayers participating in the VCI could elect either of two options. Under the first option (and subject to certain exceptions that are not at issue here), the FTB waived all penalties "attributable to the use of abusive tax avoidance transactions," the taxpayer would not be criminally prosecuted "with respect to issues for which the taxpayer voluntarily complies" under the VCI, and the taxpayer waived any "claim for refund for the amounts paid in connection with abusive tax avoidance transactions" under the VCI. (§ 19752, subd. (a) (hereafter "VCI option 1").) Under option 2 (and again subject to certain exceptions that are not at issue here), the FTB waived all penalties "except the accuracy related penalty," the taxpayer would not be criminally prosecuted "for each of the taxable years for which the taxpayer voluntarily complies" under the VCI, and the taxpayer retained the right to file a claim for a refund. (§ 19752, subd. (b) (hereafter "VCI option 2").)

The Shimmons chose VCI option 1 and filed an amended 1999 return reporting taxable income of $37,781,622. On or about March 10, 2005, the Shimmons filed an additional amended return, claiming that under the interest suspension provisions of section 19116 they were entitled to a refund of a portion of the interest they had paid on the tax liability reported in their previous amended return. The FTB rejected the refund claim, and the Shimmons filed suit. The FTB moved for judgment on the pleadings, arguing that the Shimmons' refund claim failed as a matter of law. The trial court agreed, granted the motion without leave to amend, and dismissed the complaint. The Shimmons timely appealed.

The Du case follows a similar pattern. When the Dus filed their original 1999 individual California income tax return in 2000, they reported taxable income of $38,865,301. The Dus chose to participate in the VCI and elected VCI option 1. On or about February 9, 2004, the Dus filed an amended 1999 individual California income tax return pursuant to the VCI, reporting taxable income of $55,964,760. They then filed an additional amended return seeking, under section 19116, a partial refund of interest paid. The FTB denied the claim, and, after an unsuccessful appeal to the state Board of Equalization (BOE), the Dus filed suit. The FTB demurred, the trial court sustained the demurrer without leave to amend and dismissed the complaint, and the Dus appealed.

When the Mickelsens filed their original 1999 individual California income tax return in 2000, they reported taxable income of $1,434,191. The Mickelsens chose to participate in the VCI and elected VCI option 2. On or about April 2, 2004, the Mickelsens filed an amended 1999 California return pursuant to the VCI, reporting taxable income of $31,307,290, and they paid the balance of the tax and interest in full by April 15, 2004. On their amended California return, the Mickelsens stated that they had not been advised that their original federal return had been, was being, or was going to be audited. Nonetheless, the amended California return reported an increase in the Mickelsens' federal adjusted gross income, from $2,374,002 to $32,191,441.

On or about March 10, 2005, the Mickelsens filed a second amended California return, reporting taxable income of $29,640,427. The second amended return further stated that the Mickelsens had been advised that their original federal return was audited and that they were filing the second amended California return to report a final federal determination dated October 18, 2004, which they said increased their federal tax by $5,744,244. At the same time, however, the second amended return reported a decrease in their federal adjusted gross income compared to what was reported in their first amended return, from $32,191,441 to $29,689,553.

On their second amended return the Mickelsens also claimed that under the interest suspension provisions of section 19116 they were entitled to a partial refund of interest they had paid with their first amended return. The FTB rejected the Mickelsens' claim, and, after an unsuccessful appeal to the BOE, the Mickelsens filed suit. The FTB moved for judgment on the pleadings, the trial court granted the motion without leave to amend and dismissed the complaint, and the Mickelsens appealed.

STANDARD OF REVIEW

"When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demurer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]" (Schifando v. City of Los Angeles ...


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