522US2$24Z 11-27-98 20:08:30 PAGES OPINPGT
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OCTOBER TERM, 1997
Per Curiam
on petition for writ of certiorari to the district court of appeal of florida, first district
No. 97-663. Decided February 23, 1998
After 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 predeprivation 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 predeprivation 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,
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