Perry v. District of Columbia , 314 A.2d 766 ( 1974 )

NEBEKER, Associate Judge:

This appeal results from the trial court’s dismissal of appellants’ “Petition for Rede-termination of Tax Liability”. Specifically, the court dismissed the petition after having found that it lacked jurisdiction because appellants had not prepaid the adjusted tax liability prior to pursuing their judicial remedy. We affirm the dismissal.

Appellants filed joint tax returns for the years 1969, 1970, and 1971. After auditing those returns, the Department of Finance and Revenue (the Department) requested a hearing with appellants for a substantiation of certain reported itemized deductions. Receiving no response to the request, the Department notified appellants of the audit changes which resulted in the greater tax liability. Appellants, protesting the changes, sought a hearing with the Department. After the hearing the Department notified appellants by mail of the final determination of the tax liability, including accrued interest. Appellants filed with the Tax Division of the trial court a petition for redetermination of the tax liability, the dismissal of which is the subject of this appeal.

In the petition, appellants alleged certain procedural violations including the Department’s failure to promulgate an “income tax appeal procedure”. The government’s “Motion to Dismiss the Petition” was based, inter alia, upon the fact that the court was without jurisdiction because of appellants’ failure to prepay the additional assessed tax. D.C. Code 1973, § 47-2403 provides, in part:

Any person aggrieved by any assessment by the District of any personal-property, inheritance, estate, business-privilege, gross-receipts, gross-earnings, insurance premiums, or motor-vehicle-fuel tax or taxes, or penalties thereon, may within six months after payment of the tax, together with penalties and interest assessed thereon, appeal from the assessment to the Superior Court

The trial court’s dismissal of the petition must be affirmed in light of the language of § 47-2403 to the effect that judicial review of a tax assessment does not lie until the disputed tax, together with interest and penalties, has been paid. We note further that this interpretation is consistent with the holding by the United States Court of Appeals for the District of Columbia Circuit in District of Columbia v. Berenter, 151 U.S.App.D.C. 196, 466 F.2d 367 (1972), a real estate tax case under D.C. Code 1967, § 47-709, incorporating the jurisdictional prerequisite of § 47-2403, supra. See also Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958). We, therefore, hold that appellants’ failure to prepay the disputed tax difference precludes them from seeking relief in the Tax Division. The order of dismissal is

Affirmed.