US SUPREME COURT DECISIONS
OCTOBER TERM, 1997
Per Curiam
NEWSWEEK, INC. v. FLORIDA DEPARTMENT OF REVENUE ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
No. 97-663. Decided February 23, 1998
Mter respondent Florida Department of Revenue denied petitioner Newsweek a refund of sales taxes paid under an unconstitutional scheme, Newsweek filed suit, alleging that the State's failure to accord it retroactive relief violated due process under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18. The Florida trial court granted summary judgment against Newsweek, and the District Court of Appeal affirmed, distinguishing McKesson as expressly predicated upon the fact that the taxpayer there had no meaningful pre deprivation remedy, whereas Florida law here permits prepayment tax challenges. The court held that Newsweek was afforded due process because it could have pursued this prepayment remedy without suffering onerous penalties.
Held: Newsweek can use Florida's refund procedures to adjudicate the merits of its claim. A State has the flexibility to maintain an exclusively pre deprivation remedial scheme, so long as that scheme is clear and certain. Reich v. Collins, 513 U. S. 106, 110-111. Under Florida law, however, there was a longstanding practice of permitting taxpayers to seek refunds for taxes paid under an unconstitutional statute. While a State may be free to require taxpayers to litigate first and pay later, due process prevents it from applying this requirement to taxpayers who reasonably relied on the apparent availability of a postpayment refund when paying the tax.
Certiorari granted; 689 So. 2d 361, vacated and remanded.
PER CURIAM.
Effective January 1, 1988, Florida exempted newspapers, but not magazines, from its sales tax. See Fla. Stat. §§ 212.08(7)(w), 212.05(1)(i) (Supp. 1988). In 1990, the Florida Supreme Court found this classification invalid under the First Amendment of the Constitution of the United States. See Department of Revenue v. Magazine Publishers of America, Inc., 565 So. 2d 1304 (1990), vacated and remanded,
Miami Herald Publishing Co. v. Dept. of Revenue, 499 U. S. 972 (1991), reaff'd, 604 So. 2d 459 (1992). In the wake of this ruling, Newsweek, a magazine, filed a claim for a refund of sales taxes it had paid between 1988 and 1990. See Fla. Stat. § 215.26(1) (Supp. 1998) ("The Comptroller of the state may refund ... any moneys paid into the State Treasury").
When the Department of Revenue denied the refund, Newsweek filed suit, alleging the State's failure to accord it retroactive relief violated its due process rights under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 (1990). The Florida trial court granted summary judgment against Newsweek, and the District Court of Appeal affirmed. Although acknowledging McKesson's requirement of "meaningful backward-looking relief" when a taxpayer is forced to pay a tax before having an opportunity to establish its unconstitutionality, the District Court of Appeal held: "McKesson is distinguishable because that holding was expressly predicated upon the fact that the taxpayer had no meaningful predeprivation remedy." 689 So. 2d 361, 363 (1997). The court interpreted Florida law to permit prepayment tax challenges by filing an action and paying the contested amount into the court registry, posting a bond, or obtaining a court order approving an alternative arrangement. See id., at 363-364 (citing Fla. Stat. § 72.011 (1987)). The court concluded Newsweek was afforded due process because it could have pursued this prepayment remedy without suffering onerous penalties. See 689 So. 2d, at 364.
The District Court of Appeal's decision failed to consider our decision in Reich v. Collins, 513 U. S. 106 (1994). There, the Georgia Supreme Court had rejected a taxpayer's refund claim filed pursuant to a general refund statute, dismissing any due process concerns because a predeprivation remedy was available. See id., at 110. While assuming the constitutional adequacy of Georgia's predeprivation procedures, we nonetheless reversed because "no reasonable taxpayer
