                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


Wesley Cate,

Petitioner Below, Petitioner                                                       FILED

                                                                                June 16, 2017
vs) No. 16-0599 (Kanawha County 16-AA-8)                                        RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                  OF WEST VIRGINIA

Dale W. Steager,

State Tax Commissioner,

Respondent Below, Respondent



                                  MEMORANDUM DECISION

        Petitioner Wesley Cate, by counsel John H. Henderson, appeals the May 18, 2016, order
of the Circuit Court of Kanawha County that affirmed the dismissal of his appeal from a petition
for reassessment against Respondent Dale W. Steager, West Virginia Tax Commissioner.1
Respondent, by counsel Cassandra L. Means, filed a response in support of the circuit court’s
order. On appeal, petitioner argues that the circuit court erred in affirming the motion to dismiss
his petition for reassessment because it did not have personal jurisdiction over him.

         This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, we find that the circuit court erred with respect to its denial of petitioner’s motion to
alter or amend judgment. For these reasons, a memorandum decision affirming the circuit court’s
order is appropriate under Rule 21 of the Rules of Appellate Procedure.

        In June of 2015, petitioner was issued an audit notice of assessment for personal income
tax in the amount of $3,522. In September of 2015, petitioner filed a petition for reassessment
with the West Virginia Office of Tax Assessment (“OTA”). Petitioner admitted in his petition
that his filing “was beyond the 60-day deadline” in which a taxpayer is permitted to file for
reassessment pursuant to West Virginia Code § 11-10-8(a).2

       1
        On January 16, 2017, Dale W. Steager was confirmed as the State Tax Commissioner of
West Virginia, replacing the former Tax Commissioner, Mark W. Matkovich. Accordingly, Mr.
Steager has been substituted as the named Tax Commissioner in the instant appeal. See
W.Va.R.App. P. 41(c) (providing for substitution of public officers as parties to appeals pending
in Supreme Court of Appeals of West Virginia).
       2
           West Virginia Code § 11-10-8(a) (1)provides that

       [t]he tax commissioner shall give the taxpayer written notice of any assessment or

                                                                                   (continued . . . )
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        Also in September of 2015, the West Virginia Tax Department (“Tax Department”) filed
a motion to dismiss petitioner’s petition with the OTA based upon petitioner’s failure to timely
file his petition. According to the record, petitioner did not respond or object to the Tax
Department’s motion to dismiss, nor did he introduce or seek to introduce any additional
evidence. In November of 2015, an OTA Administrative Law Judge (“ALJ”) issued an order of
dismissal based upon petitioner’s untimely filing of his petition.3

       In January of 2016, petitioner filed a petition for appeal in the Circuit Court of Kanawha
County. The circuit court affirmed the ALJ’s decision by order entered on May 18, 2016. It is
from this order that petitioner now appeals.

       Petitioner appeals the circuit court’s order affirming the decision of the OTA. The
standard of review applicable to such a proceeding is as follows:

               In an administrative appeal from the decision of the West Virginia Office
       of Tax Appeals, this Court will review the final order of the circuit court pursuant
       to the standards of review in the State Administrative Procedures Act set forth in
       [West Virginia] Code § 29A-5-4(g) [1998]. Findings of fact of the administrative
       law judge will not be set aside or vacated unless clearly wrong, and, although
       administrative interpretation of State tax provisions will be afforded sound
       consideration, this Court will review questions of law de novo.

Syl. pt. 1, Griffith v. ConAgra Brands, Inc., 229 W.Va. 190, 728 S.E.2d 74 (2012). Moreover, we
previously have held that “[i]nterpreting a statute or an administrative rule or regulation presents
a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v. State


       amended or supplemental assessment made pursuant to this article. The
       assessment or amended or supplemental assessment, as the case may be, shall
       become final and conclusive of the liability of the taxpayer and not subject to
       either administrative or judicial review under the provisions of sections nine or
       nine-a, and ten of this article, or under the provisions of sections ten or eleven,
       and nineteen of article ten-a of this chapter, unless the taxpayer to whom a notice
       of assessment or amended or supplemental assessment, is given, shall within sixty
       days after service thereof either: Personally or by certified mail, files with the tax
       commissioner a petition in writing, verified under oath by the taxpayer or his or
       her duly authorized agent, having knowledge of the facts, setting forth with
       particularity the items of the assessment objected to, together with the reasons for
       the objections: Provided, That for all assessments received after the thirty-first
       day of December, two thousand two, the taxpayer shall file the petition with the
       office of tax appeals in accordance with the provisions of section nine, article ten-
       a of this chapter.
       3
         The West Virginia Code of State Rules provides that “[i]n all cases, the jurisdiction of
the office of tax appeal depends on the timely filing of a petition.” W.Va. Code R. § 121-1-4.2.



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Tax Dep’t of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995). Accord Syl. Pt. 1, Chrystal R.M. v.
Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the
circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de
novo standard of review.”). Additionally, West Virginia Code § 29A-5-4(g) provides that

               [t]he court may affirm the order or decision of the agency or remand the
       case for further proceedings. It shall reverse, vacate or modify the order or
       decision of the agency if the substantial rights of the petitioner or petitioners have
       been prejudiced because the administrative findings, inferences, conclusions,
       decision or order are: (1) In violation of constitutional or statutory provisions; or
       (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made
       upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly
       wrong in view of the reliable, probative and substantial evidence on the whole
       record; or (6) Arbitrary or capricious or characterized by abuse of discretion or
       clearly unwarranted exercise of discretion.

In keeping with these standards, we proceed to consider the parties’ arguments.

        Petitioner’s sole argument on appeal is that the circuit court erred in affirming the motion
to dismiss his petition for reassessment because it did not have personal jurisdiction over him.
We disagree. It is well settled law that an appeal from a dismissal is not reviewed on the merits,
but rather, a determination is made as to whether the pleadings below are sufficient to withstand
the motion to dismiss. We have held that

       [t]o allow the circuit court to determine an issue on evidence not considered at the
       administrative hearing would cast the court in the role of performing an executive
       function. Under the acknowledged principle of separation of powers this cannot
       be permitted. Thus, the circuit court must decide the case on the evidence in the
       record as it was received.

Va. Elec. and Power Co. v. Haden, 157 W.Va. 298, 305, 200 S.E.2d 848, 853 (1973). Thus, the
matter before this Court is limited to the review of the dismissal order, which narrowly addressed
the issue of the timeliness of petitioner’s petition for reassessment. West Virginia Code § 11­
10A-9(b) provides that

       [e]xcept where a different time for filing a petition is specified elsewhere in this
       code, a petition filed pursuant to subsection (a) of this section is timely filed if
       postmarked or hand delivered to the Office of Tax Appeals within sixty days of
       the date a person received written notice of an assessment . . . of the Tax
       Commissioner.

        It is clear from the record on appeal that petitioner’s assessment was delivered on June 8,
2015. As such, the statutory deadline for petitioner to timely file his petition for reassessment
with the OTA was approximately August 7, 2015. Petitioner filed his petition for reassessment
on September 2, 2015, which was clearly outside the statutorily prescribed timeframe. Further,
petitioner admitted in his petition for reassessment that he missed the applicable statutory

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deadline for filing his petition. Thus, the circuit court properly affirmed the OTA’s dismissal of
petitioner’s petition for reassessment.

        In addition to the clear statutory law supporting the dismissal of petitioner’s petition for
reassessment, this Court has specifically addressed statutory appeal deadlines in tax cases. We
have long held that “filing requirements established by statute, like the ones involved in the
instant case are not readily susceptible to equitable modification or tempering.” Helton v. Reed,
219 W.Va. 557, 561, 638 S.E.2d 160, 164 (2006); See, Webb v. U.S., 66 F.3d 691 (4th Cir.1995)
(stating that there is no equitable tolling of tax filing deadlines); See also Elk Run Coal Company
v. Babbitt, 930 F.Supp. 239 (S.D.W.Va.1996) (holding that government could not appeal due to
missed deadline); Concept Mining, Inc. v. Helton, 217 W.Va. 298, 617 S.E.2d 845 (2005)
(stating that the Tax Commissioner’s intent was irrelevant and procedural error prohibited
consideration of Commissioner’s appeal); State ex rel. Clark v. Blue Cross Blue Shield of W.Va.,
Inc., 195 W.Va. 537, 466 S.E.2d 388 (1995) Bradley v. Williams, 195 W.Va. 180, 465 S.E.2d
180 (1995) (concluding that taxpayer’s failure to abide by the express procedures established for
challenging a decision of the West Virginia State Tax Commissioner precludes the taxpayer’s
claim for refund or credit); (addressing strict deadlines in insurance insolvency cases); Solution
One Mortg., LLC v. Helton, 216 W.Va. 740, 613 S.E.2d 601 (2005) (stating that tax statutes
which require the giving of bond as a prerequisite to the prosecution of an appeal are strictly
construed and their requirements are mandatory and jurisdictional).We have also held that West
Virginia Code § 11-10A-9(b) “unambiguously provides that petitions must be filed within sixty
days of receipt of the assessment.” Panhandle Used Equip., LLC v. Matkovitch, No. 15-0230,
2016 WL 1417785 (W.Va. Apr. 8, 2016)(memorandum decision).

        Inasmuch as petitioner is arguing that he objected to the Tax Department’s personal
jurisdiction over him from the outset of his petition, we also disagree. It is clear from the record
on appeal that petitioner only generally mentioned personal jurisdiction in his time-barred
petition for reassessment. Further, pursuant to Rule 12(b)(2) of the West Virginia Rules of Civil
Procedure, a litigant must file a motion challenging personal jurisdiction from the outset of the
case. “Whenever it is determined that a court has no jurisdiction to entertain subject matter of a
civil action, the forum court must take no further action in case other than to dismiss it from
docket.” Hinkle v. Bauer Lumber & Home Bldg. Ctr., Inc., 158 W.Va. 492, 211 S.E.2d 705
(1975). It is clear from the record on appeal that petitioner filed no such motion. Therefore, filing
a responsive pleading without also moving to dismiss for lack of personal jurisdiction constitutes
a waiver of that defense. W.Va. R. of Civ. P. 12(h).

        Upon our review, based on the facts and circumstances of this case, we find that the
circuit court did not err in affirming the OTA’s order dismissing petitioner’s petition for
reassessment. Accordingly, we affirm the circuit court’s order entered on May 18, 2016.


                                                                                          Affirmed.

ISSUED: June 16, 2017




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CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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