Justice Spike Maynard

CHARLESTON – Justice Spike Maynard suspects his colleagues on the West Virginia Supreme Court of Appeals set a double standard when they denied a $5 million tax refund to Elk Run Coal Company.

Maynard wrote that, "... the decision may have been different if Elk Run were a medical malpractice plaintiff or a workers' compensation claimant instead of a coal company."

In June a Court majority held that Elk Run would receive no refund because it sent its tax appeal to the wrong office.

In dissent Maynard wrote that, "... excluding Elk Run from the opportunity to receive a tax refund for the hyper-technical reason relied upon by the majority is unfair and will possibly subject Elk Run's lawyers to a legal malpractice claim."

Elk Run filed an appeal with the state tax commissioner 23 days after a new law took effect requiring taxpayers to seek refunds through a new Office of Tax Appeals.

Maynard wrote that the tax commissioner did not forward the petition, object to it or give notice to Elk Run that it filed the petition improperly.

He wrote, "Due to the very recent changes in the law, I believe that Elk Run's improper filing was understandable, and that the Commissioner had a duty to forward Elk Run's petition to the proper entity."

He wrote that in other cases, "... this Court has recognized that the strict enforcement of filing requirements should be tempered by considerations of fairness or equity in order to avoid a harsh result."

He wrote that last year in Hinchman v. Gillette, the Court reinstated a suit that a circuit judge dismissed for failure to adhere to filing requirements.

He wrote, "The Court has also relaxed filing deadlines on behalf of workers' compensation claimants."

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