Deja Vu Showgirls of Las Vegas, LLC v. Nevada Department of Taxation

Summary

The Nevada Supreme Court held that taxpayers challenging a final Nevada Tax Commission decision denying Live Entertainment Tax refunds were required to file a petition for judicial review under the Nevada Administrative Procedure Act, rather than a de novo action. The court affirmed dismissal for lack of subject matter jurisdiction and declined to apply judicial estoppel because the respondents had not intentionally misled the appellants regarding the available remedy. The court also affirmed dismissal of claims that were unexhausted or raised for the first time after the administrative proceedings.

Holdings

1. The Nevada Administrative Procedure Act provides the exclusive means of judicial review of a final decision in a contested case involving the Nevada Department of Taxation or Nevada Tax Commission. A taxpayer challenging a final Commission decision concerning a Nevada Live Entertainment Tax refund must file a petition for judicial review under NRS 233B.130, not a de novo action.
2. Filing a de novo action instead of the required petition for judicial review deprived the district court of subject matter jurisdiction and warranted dismissal.
3. Judicial estoppel did not bar dismissal because respondents had not made a misleading representation in a judicial or quasi-judicial proceeding that de novo review would be available.
4. The district court properly dismissed appellants' as-applied challenge because they failed to raise that issue during the administrative proceedings.

Questions Presented

1. Whether a taxpayer challenging a final Nevada Tax Commission decision denying a Live Entertainment Tax refund must file a petition for judicial review under NRS Chapter 233B rather than a de novo action.
2. Whether judicial estoppel required the district court to permit the de novo action despite appellants' failure to use the petition-for-review procedure.
3. Whether appellants' as-applied constitutional challenge could proceed when it had not been raised during the administrative proceedings.

Disposition

affirmed