Nw Territorial Mint, Appellant V. State Of Wa, Dept Of Revenue, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
NORTHWEST TERRITORIAL MINT, 	)
)
Appellant, 	)
)
v. 	)
)
STATE OF WASHINGTON, 	)
DEPARTMENT OF REVENUE, 	)
)
Respondent. 	)
______________________)
NO. 68065-0-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 4, 2013
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LEACH, C.J.- Northwest Territorial Mint appeals the trial court's dismissal
of a petition seeking judicial review of an adverse Board of Tax Appeals (Board)
decision. 	Because Northwest did not serve the Board within the time required by
statute 1 and cannot substantially comply with this statute with untimely service,
we affirm.
FACTS
The State of Washington Department of Revenue (Department) assessed
manufacturing excise taxes against Northwest. 	After an administrative hearing,
the Board affirmed the assessment. 	Some 24 days after the Board's service of
its final order, Northwest served a petition for review on the Department and the
Washington State Attorney General's Office. 	It filed the petition with the superior
1 RCW 34.05.542.
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NO. 68065-0-1/ 2
court 4 days later. 	It did not serve the Board with the petition until 47 days after
the Board served its final order. 2
The Department moved to dismiss the petition for failure to timely serve
the 	petition 	on 	the 	Board. 	The 	trial 	court 	dismissed 	the 	petition 	because
Northwest failed 	to timely 	serve the 	agency that 	issued the 	decision 	being
appealed, 	the 	Board. 	The court denied 	Northwest's subsequent motion for
reconsideration. 	Northwest appeals.
ANALYSIS
This appeal presents one issue: 	can a party appealing a final order of an
administrative 	agency 	"substantially 	comply" 	with 	the 	statutory 	service
requirements for a petition for judicial review with late service? 	We review this
question of law de novo3 and answer the question no.
RCW 34.05.510 through RCW 34.05.598 provide the exclusive method for
obtaining judicial review of decisions of the Board done at a formal hearing 4
RCW 34.05.542(2) requires that a petition seeking judicial review of an agency
action "be filed with the court and served on the agency, the office of the attorney
general, and all parties of record within thirty days after service of the final order."
2 Northwest 	served 	the 	Board 	only 	after 	receiving 	notice 	that 	the
Department intended to file a motion to dismiss because the Board had not been
served.3 Lenca v. Emp't Sec. Dep't, 148 Wn. App. 565, 575, 200 P.3d 281 (2009).
4 Sprint Spectrum, LP v. Dep't of Revenue, 156 Wn. App. 949, 954, 235
P.3d 849 (2010).
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NO. 68065-0-1/ 3
Most administrative agencies conduct their own adjudicative hearings; however,
in 	tax 	and 	industrial 	insurance 	appeals, 	a 	separate 	administrative 	tribunal
conducts the proceedings.
Northwest argues that this anomaly excuses its failure to timely serve the
Board. 	We disagree. 	In a case decided before Northwest filed its petition, Sprint
Spectrum. LP v. Department of Revenue, 5 we held that a taxpayer appealing a
decision of the Board must serve the Board, rather than the Department. 	Any
question about the proper party to serve had been resolved before Northwest
sought judicial review.
Alternatively, Northwest contends that it substantially complied with the
"spirit" of the service requirement, 	making dismissal of its petition improper.
Northwest observes that "substantial compliance with service requirements is
generally sufficient to invoke a superior court's appellate jurisdiction"6 and relies
on Sprint Spectrum's observation that the agency service requirement ensures
timely transmittal of the administrative record to the trial court. 7 In Sprint, the
court 	noted 	that 	because 	service 	on 	the 	agency 	triggers 	transmittal 	of its
administrative record to the court, "'[s]ervice on the agency, therefore, is vital to
5 156 Wn. App. 949, 952, 961, 235 P.3d 849 (2010).
6 Skinner v. Civil Serv. Comm'n of City of Medina, 168 Wn.2d 845, 854,
232 P.3d 558 (2010).
7 Sprint Spectrum, 156 Wn. App. at 957.
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NO. 68065-0-1 I 4
the timely functioning of the review process."'8 Thus, Northwest argues that late
service should not bar review, so long as service occurs at a time sufficient "'to
carry out the intent for which the statute was adopted."'9 Again, we disagree.
Sprint Spectrum does not support Northwest's position. 	As the court
noted, Sprint made no claim of substantial compliance. 10 Substantial compliance
means that a '"statute has been followed sufficiently so as to carry out the intent
for which the statute was adopted."'11 Thus, substantial compliance describes
those 	actions 	taken 	within 	the 	required 	time 	to 	comply 	with 	service
requirements. 12 It does not describe actions taken for the first time after the
deadline for service has elapsed. 	Northwest does not cite any authority applying
the 	concept 	of substantial 	compliance 	to 	extend 	the 	time for completing 	a
required act, and our research does not reveal any.
8 Sprint Spectrum, 156 Wn. App. at 957 (quoting Banner Realty, Inc. v.
Dep't of Revenue, 48 Wn. App. 274, 278, 738 P.2d 279 (1987)).
9 Banner, 48 Wn. App. at 278 (quoting In re Habeas Corpus of Santore, 28
Wn. App. 319, 327,623 P.2d 702 (1981)).
10 Sprint Spectrum, 156 Wn. App. at 958.
11 Banner, 48 Wn. App. at 278 (quoting Santore, 28 Wn. App. at 327).
12 Cases 	finding 	substantial 	compliance 	often 	involve 	defects 	in 	the
method of service, see, e.g., Brackman v. City of Lake Forest Park, 163 Wn.
App. 889, 262 P.3d 116 (2011); Sunderland v. Allstate lndem. Co., 100 Wn. App.
324, 995 P.2d 614 (2000), or failure to serve the correct party, see. e.g., Knight v.
City of Yelm, 173 Wn.2d 325, 267 P.3d 973 (2011 ); Quality Rock Prods .. Inc. v.
Thurston County, 126 Wn. App. 250, 108 P.3d 805 (2005).
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NO. 68065-0-1/ 5
In City of Seattle v. 	Public Employment Relations Commission, 13 our
Supreme Court stated, "It is impossible to substantially comply with a statutory
time limit . . . . 	It is either complied with or it is not. 	Service after the time limit
cannot 	be 	considered 	to 	have 	been 	actual 	service 	within 	the 	time 	limit."
Consistent with this view, we hold that substantial compliance does not apply
here. 	When circumstances beyond a party's control, such as an unavoidable
casualty or misfortune, prevent that party from acting timely, the law does provide
relief. 14 Northwest makes no claim that any circumstance beyond its control
prevented it from following controlling case law when deciding whom to serve.
CONCLUSION
Because Northwest failed to serve the Board within the required time, the
trial court correctly dismissed Northwest's petition for review. 	Also, 	because
Northwest has not prevailed, we deny its request for attorney fees. 	We affirm.
WE CONCUR:
13 116 Wn.2d 923,928-29,809 P.2d 1377 (1991).
14 See. e.g., CR 60(b)(9).
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