Franchise Tax Bd. v. Superior Court

Martin A. Schainbaum, Martin A. Schainbaum and Bryant W. H. Smith for Real Party in Interest and Respondent.

Section 19382 of the Revenue and Taxation Code (hereafter section 19382) [1] authorizes taxpayer refund actions against the Franchise Tax Board. The statute is silent as to the right to a jury determination of disputed facts in such actions. This case presents an issue of first impression: Is a taxpayer entitled to a trial by jury pursuant to article I, section 16 of the California Constitution in an action permitted by section 19382? Resolution of this question turns on whether an analogous action would have been cognizable in the common law courts in 1850, when the California Constitution was first adopted. ( C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8 [ 151 Cal.Rptr. 323 , 587 P.2d 1136 ] ( C & K Engineering Contractors ).) [2] Our review of the relevant common law history demonstrates that, before adoption of our Constitution, taxpayers could sue tax collectors for a refund in a common law action for money had and received, and were provided the right to a jury. Thus, taxpayers should have the right to a jury in modern tax refund…