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Gordon v. City of Kansas City

Court of Appeals of Missouri, Western District, Third Division

November 25, 2014

DAVID GORDON d/b/a GRANDMA'S OFFICE CATERING, et al., Appellants,
v.
THE CITY OF KANSAS CITY, MISSOURI, Respondent

Appeal from the Circuit Court of Jackson County, Missouri. The Honorable Bryan E. Round, Judge.

For Appellants: Brian Joseph Gordon and C. Joseph Barvick, Independence, MO.

For Respondent: Stephen D. Walsh and Nikola Smith, Assistant City Attorneys, Kansas City, MO.

Before Division Three: Karen King Mitchell, Presiding Judge, and Cynthia L. Martin and Gary D. Witt, Judges. Cynthia L. Martin and Gary D. Witt, Judges, concur.

OPINION

Karen King Mitchell, Presiding Judge

Page 794

David Gordon d/b/a Grandma's Office Catering and Grandma's Office Catering, LLC d/b/a Grandma's Office Catering (collectively " Gordon" ) appeal the circuit court's dismissal with prejudice of his petition

Page 795

for review of a decision of the City of Kansas City denying a refund of taxes paid. Because the trial court erred in dismissing the petition, we reverse.

Facts[1]

Under the statutory authority of section 92.325-340,[2] the City of Kansas City imposes a " convention and tourism tax" (" the tax" ), which includes " [a] tax not to exceed two percent of the gross receipts derived from the retail sales of food by every person operating a food establishment." [3] § 92.327.1(2), .2; Kansas City, Mo., Code art. IX, § 68-551(a)(2), (b) (2014). Gordon opened a catering business in Kansas City in 2006 and collected and paid the tax every month that he was in business. In 2009, Gordon filed amended tax returns with the City, along with correspondence alleging that he was not subject to the tax because he did not operate a food establishment[4] as that term is defined in section 92.325 and local ordinance. Gordon also requested a refund of taxes paid. The City's Finance Department denied the refund via letter without providing a hearing. The denial letter, dated March 24, 2009, included the following language, which was quoted verbatim from the City's municipal code, section 68-573:

Final decisions . . . may be appealed within 30 days after receiving notice of such decision by filing with the [D]irector of [F]inance a written notice of appeal setting forth the grounds therefor . . . . Final decisions of the [D]irector of [F]inance may be appealed as provided in RSMo ch. 536.

On April 20, 2009, Gordon filed a notice of appeal with the Director of Finance, per the instructions set out in the City's code. The City did not hold a hearing following receipt of Gordon's letter, and apparently there was no correspondence between the parties until Gordon instituted this action in September of 2013.

In his petition, Gordon alleged that he was not subject to the tax, that the Finance Department had denied the refund claim, that Gordon had subsequently appealed the denial to the Director of Finance, and " [t]hat the City has not responded to the notice of appeal." Gordon sought " judicial review pursuant to [sections] 536.100 and 536.50 [sic]," [5] and prayed for relief, including a judgment against the City in the amount of the taxes collected, costs and reasonable attorneys fees, and a declaratory judgment that " caterers are not food establishments for purposes of" the tax.

The City filed a motion to dismiss, and later, an amended motion to dismiss. In the amended ...


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