Bayer v. Payne

DOBBERPUHL, Circuit Judge. Barry E. Bayer (Bayer) appeals from an order dismissing his suit for the recovery of sales taxes paid on his bookmaking activities. We affirm. FACTS Bayer’s sales tax problems can be traced to a July 12, 1981 criminal complaint alleging failure to file retail sales and service tax returns on his bookmaking operations. This complaint was disposed of by a July 13, 1981 plea bargain. As part of the plea bargain Bayer was to pay the tax, penalty and interest, keep adequate records, and pay taxes in the future based on his gross receipts. Pursuant to the plea bargain, Bayer did pay some sales tax. A dispute arose, however, on whether the tax was to be paid on gross receipts, the “vigorish,” or the service fee. This dispute came before the court in Bayer v. Johnson, 349 N.W.2d 447 (S.D.1984) (Bayer I). We declined to consider that issue and instead held that the collection of sales tax on bookmaking activities is not authorized because it would be an implicit recognition of bookmaking. A recognition of bookmaking is not allowed under the South Dakota Constitution. With Bayer I in mind, Bayer sought the return of the sales taxes he paid on bookmaking activities. This resulted in State v. Bayer, 378 N.W.2d 223 (S.D.1985) (Bayer II). In Bayer II, we held that a magistrate did not have the jurisdiction to return sales tax paid pursuant to a plea bargain. The recovery of sales tax must be exclusively pursued through the laws passed by the legislature. Bayer, not to be discouraged, then filed suit in Hughes County Circuit Court seeking recovery of the tax under statutes passed by the legislature. Bayer v. Johnson, 400 N.W.2d 884 (S.D.1987) (Bayer III). In Bayer III we stated that “[sjince the payments were made upon an unconstitutional activity, ... Bayer cannot recover.” Bayer III, supra, 400 N.W.2d at 886. We based our decision upon public policy, holding that “Bayer is denied access to the courts to recover these taxes paid to engage in an unconstitutional and possibly criminal activity.” Id. With this background in mind, we now turn to the case at bar. DISCUSSION Bayer brought this suit in Minnehaha County Circuit Court seeking the refund of the sales tax he paid on his bookmaking [130] activities. This is the same sales tax that was at issue in Bayer II and Bayer III. Like Bayer III, Bayer bases his suit upon the tax recovery statutes found in the South Dakota Codified Laws. In essence, the case at bar is identical to that presented in Bayer III. We hold that our decision in Bayer III is controlling, and all the issues presented here are res judicata. The dismissal by the trial court is affirmed. WUEST, C.J. and SABERS, J., concur. MORGAN and HENDERSON, JJ., dissent. DOBBERPUHL, Circuit Judge, sitting for MILLER, J., disqualified.