                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs August 22, 2005

 STATE EX REL. WALTER J. DAVIS v. ABC BRENTWOOD LOCKSMITH
                        SERVICE, ET AL.

                  Appeal from the Chancery Court for Williamson County
                         No. 28643   R.E.Lee Davies, Chancellor



                   No. M2004-00638-COA-R3-CV- Filed October 20, 2005


Appellant is a defendant in a delinquent tax suit by Williamson County for business personal
property taxes for the year 2000. The trial court granted summary judgment to the plaintiff because
the defendant had not utilized his available administrative remedies, and Defendant appealed. We
affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK
G. CLEMENT , JR., JJ., joined.

Trippe S. Freid, Nashville, Tennessee, pro se.

William J. Yost, Franklin, Tennessee, for the appellees, State of Tennessee and Walter J. Davis,
Williamson County Trustee.


                                           OPINION

        The facts of this case are not in dispute. Appellant is a practicing attorney who moved his
offices from Franklin, Williamson County, Tennessee, to Nashville, Davidson County, Tennessee,
in October of 1999 with offices thereafter remaining in Davidson County and no offices being
maintained in Williamson County. Personal property taxes on the business of the appellant for the
year 2000 were assessed by Williamson County. There had been no prior assessment made on his
business personal property. While the appellant remained a resident of Williamson County,
Tennessee, during the year 2000, his office was located in Nashville for the entirety of that year.
Appellant was not assessed for personal property taxes by the Metropolitan Government of Nashville
for any of the years 2000, 2001 and 2002.
        This suit by the Williams County Attorney sought to recover delinquent taxes for the year
2000 and was filed March 28, 2002, in the Chancery Court for Williamson County. The suit was
brought pursuant to the provisions of Tennessee Code Annotated section 67-5-2401 et seq. for the
collection of delinquent taxes due to Williamson County and the city of Franklin along with other
taxes and other entities not involved in the issues at bar.

        The Statement of Undisputed Material Facts filed by the plaintiff pursuant to Tennessee Rule
of Civil Procedure 56.03 is undisputed by the defendant and discloses the following history.

       1. The Assessors Office of Williamson County, Tennessee in the ordinary course of
       its business assessed the business personal property of the Defendant, Trippe S. Freid
       for the year 2000.
       2. The Defendant was sent notice of the assessment of his business personal property
       in the ordinary course of business by the Assessor’s Office.
       3. The Defendant did not appeal his assessment to the Board of Assessment Appeals
       or the Board of Equalization and has not utilized the available administrative appeal
       process and remedies.
       4. The tax assessed to the Defendant appears on the tax rolls of Williamson County
       Tennessee maintained by the Trustee for 2000.
       5. The Trustee has not received payment according to the books and records of his
       office for the year 2000.
       6. The unpaid taxes in question were transmitted by the Trustee to the Clerk and
       Master for collection and their collection through this Court is the subject matter of
       this litigation.
       7. The Defendant has not paid the amounts due and owing for her delinquent taxes
       to the Clerk and Master of the Court.

        Another fact asserted by the defendant and undisputed by the plaintiff is that the defendant’s
office was located in Nashville for the entirety of the calendar year 2000.

       On February 4, 2004, the Chancellor granted summary judgment to the plaintiff because
Defendant had failed to utilize his available administrative remedies and had not paid the assessed
delinquent taxes under protest. Defendant Freid filed a timely appeal.

        An answer by taxpayer to complaint for the collection of delinquent taxes is not an acceptable
method of contesting the validity of the underlying assessment. Statutory systems for contesting tax
assessments by both the State of Tennessee and by counties and cities as arms of the State of
Tennessee are of ancient origin both in Tennessee and elsewhere as is discussed at length in Ward
v. Alsup, 46 S.W. 573, 576-77 (Tenn.1898).

       Under a companion statutory scheme, a Metropolitan Nashville taxpayer challenged by
independent action in Chancery Court a tax assessment by Metropolitan Government of Nashville



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and Davidson County without first paying the taxes under protest. In reversing the trial court, the
Supreme Court held:

               Sections 67-2303 et seq., T.C.A., provide a full, complete, orderly and
       exclusive remedy for the taxpayer who conceives himself wronged by an improper
       exercise of the taxing power. This statutory scheme contemplates payment of
       disputed tax liability as a condition precedent to a suit for a refund. There is no
       statutory predicate for a suit for the forgiveness of taxes, penalty, or interest, and no
       case law in this jurisdiction supports such a procedure.

              The statutory scheme provides, in clear and cogent language, that where
       proceedings are instituted for the collection of revenue due the municipality, the
       taxpayer:

               (s)hall, if he conceives the same to be unjust or illegal, or against any
               statute or clause of the Constitution of the state, pay the same under
               protest. (Emphasis supplied) Sec. 67-2303, T.C.A.

               The whole theory of this exclusive remedy for contesting tax liability is that
       tax revenues are the lifeblood of public corporate existence and public bodies may
       not be frustrated in the performance of essential governmental functions by
       postponements or delays in their collection. Bank of Commerce and Trust Co. v.
       Senter, 149 Tenn. 569, 260 S.W. 144 (1924)

               In Tidwell v. Goodyear Tire & Rubber Company, 520 S.W.2d 721
       (Tenn.1975), we recognized the traditional power of courts of equity to relieve
       against forfeitures and penalties. Indeed this is a broad equitable power, but in a case
       such as this, it may only be invoked pursuant to payment under protest.

State v. Delinquent Taxpayers as shown on 1972 Real Property Delinquent Tax records of the
Metropolitan Government of Nashville and Davidson County, Tennessee, 526 S.W.2d 453, 454
(Tenn.1975)(footnotes omitted).

       Most clearly controlling in the case at bar is Fentress Cty. Bank v. Holt, 535 S.W.2d 854
(Tenn.1976) wherein the Supreme Court held:

               In the present case, none of these remedies or procedures has been utilized.
       Instead the taxpayers have brought a direct action for declaratory judgment in the
       courts, challenging the validity of their assessments, without either first paying the
       tax or seeking review of the assessments through the boards of equalization. The
       question presented is whether an action may be maintained under these circumstances

       ...


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                It appears that there has been some ambiguity or uncertainty in the case law,
       insofar as procedural requirements are concerned, as to when a taxpayer may file a
       direct action challenging the legality of his assessment. We are of the opinion that
       it is proper to require the taxpayer to pay his county taxes under protest before being
       permitted to file such direct action in the courts to recover them or to challenge the
       legality of his assessment.

                We believe that the Rosewood decision is a sound one, and that a taxpayer
       ought not to be required in all cases to go through boards of equalization or other
       administrative procedures in order to raise strictly legal issues. He may go through
       these agencies, of course, without first paying his taxes. He should, however, be
       permitted access to the courts to raise purely legal questions, but only after he has
       first paid the taxes under protest.

               Accordingly, any earlier cases in this state, which may have permitted direct
       suits against county taxing authorities without first requiring payment of the taxes
       under protest, are now modified. A county taxpayer may follow the procedure
       approved in Rosewood, supra, pay his county taxes, and file suit to recover them,
       when he only seeks to present legal questions as to the validity of his assessment; or
       he may go through the equalization boards, challenging any aspect of his assessment,
       without first paying the disputed taxes.

               He may not, however, have access to the courts without first pursuing one or
       the other of these courses of procedure.

Fentress Cty. Bank, 535 S.W.2d at 856-57.

        Having failed to avail himself of administrative remedies or pay his assessed taxes under
protest, Plaintiff may not resort to court.

       The judgment of the trial court is in all respects affirmed with costs assessed against
Appellant.


                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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