§40-35 Payment to State under protest. (a) Any disputed portion of moneys representing a claim in favor of the State may be paid under protest to a public accountant of the department, board, bureau, commission, or other agency of the State with which the claimant has the dispute. The protest shall be in writing, signed by the person making the payment, or by the person's agent, and shall set forth the grounds of protest. If any payment, or any portion of any payment, is made under protest, the public accountant to whom the payment is made shall hold that portion of the moneys paid under protest in a trust account in the state treasury for a period of thirty days from the date of payment.

(b) Action to recover moneys paid under protest or proceedings to adjust the claim may be commenced by the payer or claimant against the public accountant to whom the payment was made, in a court of competent jurisdiction, within thirty days from the date of payment. If no suit or proceeding is brought within the thirty-day period, the money paid under protest shall be deposited into the appropriate account in the treasury of the State by the accountant and the amount deposited shall thereupon become a government realization. Any action to recover payment of taxes under protest shall be commenced in the tax appeal court.

(c) If action to recover the money paid under protest or a proceeding to adjust the claim is commenced within the thirty-day period, the amount paid under protest shall, pending final decision of the cause, be deposited by the public accountant into the state treasury, in a fund to be known as the "litigated claims fund", together with subsequent payments or portions thereof, made to the accountant under the same protest. If judgment is rendered in favor of the claimant, the claimant shall be paid the amount of the judgment out of the litigated claims fund by warrants signed by the comptroller upon vouchers approved by the head of the department, board, bureau, commission, or other agency with which the claimant had the dispute. If the amount of money in the litigated claims fund is insufficient to pay the judgment the head of the department, board, bureau, commission, or other agency with which the claimant had the dispute shall include in their respective budget requests to the department of budget and finance an amount necessary to pay the judgment, plus interest, as provided herein. Interest at the rate of two per cent a year from the date of each payment under protest shall also be paid out of the amount appropriated for the judgment payable to the claimant; provided that if the claim is for the recovery of taxes paid under protest by the claimant, the rate of interest and the overpayment of taxes shall be refunded in the manner provided in section 231-23(c) and (d). The amount of the judgment to be paid to the claimant shall be ascertained by the head of the department, board, bureau, commission, or other agency with which the claimant had the dispute from a certified copy of the judgment, which shall be the authority for making payment to the claimant. If judgment is rendered against the claimant, the amount of money paid by the claimant under protest which is in the litigated claims fund shall be deposited into the appropriate account in the treasury of the State and the amount shall become a government realization. L 1907, c 45, §1; RL 1925, §1444; RL 1935, §571; RL 1945, §1575; am L 1951, c 224, §1; RL 1955, §34-24; am L Sp 1959 2d, c 1, §14; am L 1963, c 114, §1; am L 1967, c 231, §7 and c 251, §1; HRS §40-35; am L 1978, c 174, §1; am L 1980, c 51, §1; am L 1981, c 169, §1; gen ch 1985

Revision Note

Section 231-23(c) and (d) substituted for 231-23(d) and (e).

Rules of Court

Tax appeals, see RTAC rules 1, 2.

Case Notes

Provides avenue for a full and fair consideration of taxpayer's challenge to gross receipts tax. 742 F.2d 546.

Taxpayer's 42 U.S.C. §1983 claim against validity of Hawaii's general excise tax barred, where state remedies available to taxpayer were "plain, adequate, and complete". 940 F. Supp. 260.

Recovery of a license fee to exhibit "motion pictures". 18 H. 646. Recovery of conservation tax. 21 H. 571. Recovery of inheritance tax. 22 H. 742. Recovery of property tax. 29 H. 555. Recovery of interest earned on inheritance tax paid under protest and kept in special deposit, property of taxpayer. 32 H. 38. Recovery by charitable trust of excise tax on "doing business". 33 H. 371. Recovery of gross income tax by persons practicing a "profession". 34 H. 245. Recovery of aviation fuel tax asserted as burden on interstate commerce. 36 H. 170. Recovery of unemployment contributions. 38 H. 16. Recovery of gross income tax by radio station asserting interstate transmission. 40 H. 121, aff'd 216 F.2d 700.

Mentioned with respect to applicable statutory period for bringing action for refund of general excise taxes. 53 H. 1, 486 P.2d 396.

Section not applicable where taxpayer contests valuation placed on property for real property taxes; §246-46 applies. 54 H. 250, 505 P.2d 1179.

Not exclusive means of challenging validity of inheritance tax. 66 H. 276, 660 P.2d 30.

Absent a formal administrative decision by the tax director, taxpayer's payment under protest did not present an "actual dispute" over which the tax appeal court had subject matter jurisdiction. 92 H. 608, 994 P.2d 540.

As this section applied to plaintiff's ocean recreation management area permit fee dispute, all of plaintiff's tort claims were barred under §662-15(3), which unambiguously provides that chapter 662 is inapplicable to "any claim for which a remedy is provided elsewhere in the laws of the State"; trial court thus did not err in determining that §662-15(3) barred all of plaintiff's tort claims. 113 H. 184, 150 P.3d 833.

This section is the proper avenue for recovery of ocean recreation management area permit fees. 113 H. 184, 150 P.3d 833.

Where plaintiff's complaint was not filed until April 17, 2002, and the statute of limitations under this section had expired thirty days after the last ocean recreation management area permit fee payment sometime in September, 2001, plaintiff was time-barred from seeking relief pursuant to this section. 113 H. 184, 150 P.3d 833.

Section only allows recovery of money paid under protest; requires action to be commenced within thirty days of payment; requires action for recovery of taxes paid under protest to be commenced in tax appeal court. Prohibits original actions by insurers to recover moneys paid to State without protest under §431-318. 5 H. App. 122, 678 P.2d 1101.

Cited: 37 H. 475, 476, aff'd 174 F.2d 21.