La. R.S. 47:337.45(A) provides several alternative remedies for the tax collector to recover delinquent taxes:
(1) Assessment and distraint, as provided in R.S. 47:337.48 through 337.60.
(2) Summary court proceeding, as provided in R.S. 47:337.61.
( 3) Ordinary suit under the provisions of the general laws regulating actions for the enforcement of obligations.
However, if the Collector embarks on one remedy, can he switch? In a tax collector friendly decision, the Louisiana 5th Circuit Court of Appeal says, “yes.” Normand v. Randazzo, 11-308 (La. App. 5th Cir., 12/28/11), ___ So.3d __, writ denied 2012-0258 (La., 3/9/12). The taxpayer was issued a proposed notice of sales tax assessment post audit. On the day before the notice of final assessment issued, the taxpayer requested a hearing. The hearing was had more than 60 days past the notice of final assessment, which is deemed by law as a final judgment at that point in time, and the tax collector denied to adjust the audit conclusions. The Jefferson Parish tax collector then retained counsel and filed summary proceedings agains the taxpayer for the taxes, penalties, interest and and an additional attorney’s fee penalty in the amount of 10%. The taxpayer prevailed in trial court becuase the tax collector did not properly perform the assessment and distraint procedure outlined by law. Specifically, the trial found the notices to the taxpayer advising him of his rights to be lacking.
The Louisiana 5th Circuit Court of Appeal reversed with a heavy hand. Holding that the tax collector may pursue a taxpayer under any one of the above three remedies, that he is not foreclosed to only one if one remedy is started, the tax collector was awarded a judgment for all taxes, penalties and interest thereon, the attorney’s fees in the amount of 10% and another attorney’s fee of $2,500 for appellate work. The Louisiana Supreme Court denied writs, though two justices would have granted. Maybe this rule of law in favor of the tax collector will be revisited.