
    RICKEY TRI-KEY PARTNERSHIP, Plaintiff-Appellant, v. L. Ellis DUPLEIX, Etc., Defendants-Appellees.
    No. 83-1100.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied in Part; Granted in Part Jan. 15, 1985.
    On Rehearing Jan. 15, 1985.
    Writs Denied March 15, 1985.
    
      George J. Forest, Lafayette, for plaintiff-appellant.
    J. Nathan Stansbury, Lafayette, Thomas S. Halligan, Baton Rouge, William J. Friedman, Jr. of Voorhies & Labbe, Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Appellant Rickey Tri-Key Partnership contests the validity of an ad valorem property assessment by Lafayette Parish taxing authorities. After pursuing its administrative remedies, appellant filed suit in district court. The trial judge dismissed on appellees’ peremptory exception of prescription. We reverse.

FACTS AND PRIOR PROCEEDINGS

Rickey Tri-Key Partnership, Limited, appellant herein, is the owner of the Tri-Key Building in Lafayette. The building is commercial rental property. The property was appraised and assessed in 1982 by appellees Lafayette Parish Tax Assessor and Louisiana Tax Commission for ad valo-rem taxes. On January 27, 1983, appellant paid the taxes assessed under protest.

Appellant followed the statutory administrative procedure for protesting ad valorem assessments. Appellant eventually appeared before the Louisiana Tax Commission on November 16, 1982. The Tax Commission affirmed the Lafayette Parish Assessor’s appraisal and assessment on April 22,1983. Appellant contested that decision by filing its petition in district court on May 23, 1983, within thirty legal days of the decision of the Tax Commission, as required by LSA-R.S. 47:1989(D) and Tax Commission rules.

Appellees filed a peremptory exception of prescription, contending that appellant failed to bring suit in district court within thirty days of the payment of taxes under protest, as required by LSA-R.S. 47:2110(A). The district court maintained this exception.

ISSUE

Appellant explains that there are two methods for contesting ad valorem assessments in Louisiana. First, there is the administrative remedy which involves an appearance before a review board of the local authority and culminates in an appearance before the Louisiana Tax Commission, whose decision may then be contested by filing suit in the appropriate district court within thirty days. Second, there is the remedy afforded by LSA-R.S. 47:2110(A), which involves a payment of assessed taxes under protest, and a direct suit against the taxing authority filed in the appropriate district court within thirty days of the protested payment. Appellant contends that it has followed the administrative procedure, and that the trial judge erroneously based his ruling of prescription on the time period applicable to the legal remedy afforded by section 2110(A), which appellant has not pursued.

DISCUSSION

Appellant is correct in contending that there are two separate statutory schemes with separate prescriptive periods that afford remedies to assessed property owners in Louisiana. Appellee Louisiana Tax Commission admits as much and, in fact, states in its brief that, of the two statutory schemes, the administrative remedy pursued by appellant is the only constitutionally permissible remedy for one aggrieved by the actions of a parish assessor. ■ See La.Const. art. VII, sec. 18(E).

Appellant in this case followed the administrative procedure of LSA-R.S. 47:1992, which provides for complaint to a local board of review, then appeal to the Louisiana Tax Commission. LSA-R.S. 47:1998(A) expressly gives appellant the right to contest an adverse decision of the Tax Commission in district court within thirty days of that decision. See also LSA-R.S. 47:1989(D) (decision of Tax Commission is final if no suit is filed within thirty days).

Conversely, LSA-R.S. 47:2110(A) provides a direct legal action against the collecting entity with no appearances before administrative boards or agencies. The taxpayer pays under protest and then sues the collecting officer in district court. This statute has been construed to provide a thirty day prescriptive period for the filing of suit after payment under protest. See Allied Chemical Corp. v. Iberville, Etc., 414 So.2d 409, 411 (La.App. 1st Cir.1982), aff'd, 426 So.2d 1336 (La.1983). However, the same statute, in section 2110(D), clearly provides that the direct action afforded in subsection (A) is in addition to the administrative remedies afforded elsewhere in title 47. Thus, appellant properly proceeded before the administrative boards. The statutes that control the procedure before the administrative boards provide that an adverse decision may be contested in district court, and that the prescriptive period for suit in district court is thirty days after the decision of the Tax Commission. Appellant’s suit therefore has not prescribed.

Appellees argue that, by paying its taxes with checks marked “under protest,” appellant irrevocably selected the direct action under section 2110(A) with its corresponding thirty-days-after-payment peremptive period for suit in district court. This argument is without merit. By paying “under protest,” appellant preserved^ the right to proceed under section 2110(A) should it choose to do so, but payment “under protest” does not foreclose the pursuance of the administrative remedy. By marking its checks “under protest,” appellant did nothing more than provide notice to the taxing authority that it would contest the assessment under either the direct action afforded by section 2110(A) or the administrative procedure available to appellant.

Appellees’ final argument is that appellant may not maintain its suit in district court because it has failed to comply with LSA-R.S. 47:2110(E), which provides:

“Any taxpayer in the state who has paid his taxes under protest as provided in Subsection A above, and who has filed suit under the provisions of R.S. 47.T856, R.S. 47:1857, or R.S. 47:1998, shall cause to issue in said suit notice to the officer or officers designated for the collection of said taxes in the parish or parishes where the property is located, and such notice shall be sufficient to cause said officer or officers to further hold said amount segregated pending the outcome of the suit.”

First, we again note that appellant paid his taxes under protest. This provided notice to the taxing authority that appellant was contesting the assessment. Further, the assessor was aware during every step of appellant’s pursuance of its administrative remedy that appellant was contesting the validity of the assessment. Finally, appellant named and served the assessor as defendant in its suit after the Tax Commission decision. Appellees correctly describe the policy behind the notice provision in section 2110(E). The assessor should be informed that the taxpayer is attempting to recover all or part of the taxes paid so that the assessor will maintain the identity of the contesting taxpayer’s funds and not merge them with general revenues and allow them to be expended before the validity of the assessment is finally determined. In this case, it is obvious that the assessor had notice “sufficient to cause said officer or officers to further hold said amount segregated pending the outcome of the suit.” If the assessed funds paid under protest by appellant were merged with general revenues in the face of publicly recorded administrative and legal proceedings, then the assessment office of Lafayette Parish has only itself to blame for this error.

Appellant has properly followed the administrative procedure for contesting the assessment of ad valorem taxes in this state. After appellant exhausted its administrative remedies, it was entitled to file suit in district court within thirty legal days of the final decision of the Louisiana Tax Commission. Appellant timely filed suit. Appellant’s suit has not prescribed. We reverse the decision of the trial court and remand to that court so that appellant may further pursue the remedies granted to it under the laws of this state. Defendants-appellees are taxed with the cost of this appeal and the cost of prior proceedings in the district court.

REVERSED AND REMANDED.

ON REHEARING

PER CURIAM.

Defendant-appellee Louisiana Tax Commission has applied for a rehearing in this matter and filed a supporting brief. We grant the application for rehearing for the limited purpose of issuing this opinion. We affirm our prior decision.

The Tax Commission does not question the opinion of this court that appellant proceeded correctly by attacking the contested assessment under the administrative procedure set forth in title 47, nor does the Commission still assert that appellant failed to file suit in the appropriate district court within thirty legal days of its adverse decision, as provided by LSA-R.S. 47:1998(A). Rather, the commission contends that appellant did not fulfill the requirements of LSA-R.S. 47:2110(E), the language of which is set forth in our original opinion, and that this court erred by concluding that appellant has fulfilled the requirements of section 2110(E).

Specifically, the Commission argues that appellant did not comply with section 2110(E) because it did not give notice of its suit “to the officer or officers designated for the collection of said taxes in [Lafayette Parish].” The Commission correctly asserts that the sheriff of Lafayette Parish, not the tax assessor, is the officer to whom notice “sufficient to cause said officer ... to further hold said amount segregated pending the outcome of the suit” must be provided. The assessor sets the amount of ad valorem taxes, but the office of the sheriff collects, holds, and disburses the actual assessed funds. Our original opinion indicates that it is the responsibility of the assessor to collect, hold, and disburse ad valorem taxes and, therefore, that the assessor is the “officer” to whom notice must be provided under section 2110(E).

Although we erroneously named the assessor as the party to be notified of a suit to recover assessed taxes, we find that the considerations set forth in our original opinion as sufficient notice under section 2110(E) to the assessor apply with equal force to the sheriff. The sheriff (not the assessor) received the checks marked “under protest,” which gave notice to the sheriff that appellant was contesting the assessment, even though payment “under protest” is not required to contest ad valo-rem assessments by the administrative procedure, see LSA-R.S. 47:1992, but instead is only necessary when suit is filed in district court, either after the pursuance of administrative remedies, see LSA-R.S. 47:1998(A) & (B), or when a direct lawsuit attacking the validity of an assessment is filed in district court. See LSA-R.S. 47:2110(A). Further, the sheriff and the assessor do not operate in totally separate, insular spheres in regard to the assessment and collection of ad valorem taxes. Both the sheriff and the assessor knew that appellant was contesting the assessment. It is unclear whether the sheriff, personally or through counsel, actually appeared before the administrative boards during that phase of appellant’s pursuit of its remedy; however, the sheriff of Lafayette Parish is clearly named and was served as a defendant in appellant’s timely-filed suit in district court. A close reading of section 2110(E) reveals that notice of this district court suit is the notice required by that statutory provision. What notice exists that is more “sufficient” than being named and personally served as a defendant in a lawsuit?

The statutes do not define “sufficient” notice for the purpose of meeting the requirements of section 2110(E). As the interpretative organ of the law, therefore, this court must decide whether the actions of appellant provided notice “sufficient to cause [the sheriff] to further hold said amount segregated pending the outcome of the suit.” The Tax Commission’s application brief, in overall tenor, suggests that nothing short of a written message, hand-delivered to the sheriff once every month, stating that litigation or administrative proceedings are being undertaken to decide the validity of the assessment, would have sufficed. Neither the letter nor the spirit of the law imposes such an onerous requirement. Under the “direct action” of LSA-R.S. 47:2110(A), a contesting taxpayer must actually file suit within thirty days after payment by check marked “under protest” or some other form of notice of protest to the collecting officer. If suit is not filed within thirty days, then the collecting authority is authorized to merge the protested funds with general revenues, because suit has prescribed. There is no analogous or even similar rule of a thirty-day effective period for notice when the taxpayer pursues his remedy through the lengthier administrative process; the arguments of the Commission to the contrary should be addressed to the legislature, not the courts.

We find that the actions of appellant were sufficient to notify (and actually did notify) the sheriff that appellant was contesting its tax liability.

The Commission states that the sheriff has merged appellant’s contested funds with general revenues, and that such funds have at least lost their separate identity if they have not, in fact, been disbursed. The Commission therefore argues that this case is moot, that appellant may not recover any portion of its paid ad valorem taxes in any event. Again, we stress that if the assessed funds paid by appellant were merged with general revenues, then the collecting authority has only itself to blame for this error. Such a mistake by the collecting authority cannot preclude appellant’s recovery, if appellant prevails in its cause after further pursuance of this matter.

Our original opinion in this case is correct in its result. The reversal and remand entailed by that opinion is affirmed.  