Del Costello v. State of California

Cheryl Del Costello expected to receive $515 as a refund for overpayment of her state income taxes for 1979. In lieu of the check she found the money had been applied to offset an amount due to the state as a result of a judgment obtained against her for reimbursement of sums paid through the aid to families with dependent children program (AFDC). The funds supported her daughter, a minor, when she was living apart from plaintiff in the custody of the child’s grandmother. Plaintiff filed a class action to remedy the perceived injustice of this procedure. Defendants, the State of California and the Franchise Tax Board (state), successfully demurred. Plaintiff declined to amend her pleading and judgment of dismissal was entered. She appeals. We affirm the judgment.

Discussion

I

The amount of the judgment was withheld from plaintiff’s income tax refund under the authority of a statute which permits the Controller to “offset any amount due a state agency from a person ... against any amount owing such person ... by any state agency.” (Gov. Code, § 12419.5.) Plaintiff argues that withheld taxes remain the property of the wage earner until the actual tax liability is…