author: Shea, J.

text:
    Michael Cannata et al. v. Department of Environmental Protection et al.
    (13877)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 10
    decision released July 17, 1990

      Elliott B. Pollack, with whom were Michael Kurs and, on the brief, Lori J. Kremidas, for the appellants (plaintiffs).

      Janet P. Brooks, assistant attorney general, with whom, on the brief, were Clarine Nardi Riddle, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (named defendant).

      Katherine H. Robinson, for the appellee (defendant Connecticut Fund for the Environment, Inc.).
   Shea, J.

The dispositive issue in this appeal is whether a court or an administrative agency should decide in the first instance whether an agency has jurisdiction over a particular subject matter. The plaintiffs, Michael and Deborah Cannata, brought an appeal pursuant to General Statutes § 4-183 of the Uniform Administrative Procedure Act (UAPA) to the Superior Court from a decision by the named defendant, the department of environmental protection (DEP), requiring them to file an application for a permit to cut trees on their property within the stream channel encroachment lines established pursuant to General Statutes § 22a-342. In the appeal, they challenged the authority of DEP to issue such an order in view of the exemption for agricultural uses in General Statutes § 22a-349. The trial court, sua sponte, dismissed the appeal for lack of subject matter jurisdiction on the ground that the plaintiffs had failed to exhaust their administrative remedies. From that decision the plaintiffs appealed. We affirm the judgment of dismissal.

The following facts, found by the named defendant’s hearing officer and the trial court, are undisputed. The plaintiffs own two hundred acres of land in Cromwell bordering the Connecticut River. In 1988, the plaintiffs sought permits from the commissioner of environmental protection (commissioner), pursuant to § 22a-342, for permission to develop a portion of their land for a subdivision and golf course within the stream channel encroachment lines. On June 21,1988, the commissioner granted the plaintiffs permission to develop a subdivision but denied with prejudice permission to construct a golf course. The construction of a golf course would have involved cutting the flood plain forest within the stream channel encroachment lines. The commissioner’s decision stated, inter alia, that, since 1976, flood plain forests have been recognized as critical habitats and that this particular flood plain forest is a resource of “special ecological significance, both in itself and through its function as a buffer to the adjacent Dead Man’s Swamp, another critical habitat.”

On July 5, 1988, the plaintiffs notified the commissioner that they intended to cut trees within the stream channel encroachment lines in order to expand their agricultural crop land. On July 8, 1988, the commissioner issued, ex parte, a cease and desist order, directing the plaintiffs to stop cutting trees because they had failed to apply for a permit as provided in § 22a-342.

On July 18 and 19,1988, a hearing was held, pursuant to General Statutes § 22a-7, 6before a hearing officer designated by the commissioner to determine whether the cease and desist order should be upheld. The Connecticut Fund for the Environment, Inc., intervened in support of the cease and desist order. On July 29, 1988, the hearing officer issued a final decision upholding the order until the plaintiffs filed a permit application and DEP had taken final action on it. From this decision, the plaintiffs appealed to the Superior Court pursuant to § 4-183.

In their complaint, the plaintiffs alleged that the hearing officer had incorrectly determined that a proposed agricultural use of land within the stream channel encroachment lines was subject to the permit process and that the final decision violated the plaintiffs’ federal and state constitutional rights.* **** The trial court, sua sponte, found that it lacked jurisdiction because the plaintiffs had failed to comply with the exhaustion requirement of § 4-183 and dismissed the appeal. Upon a motion for rehearing and reconsideration, the court granted a rehearing but denied relief. The court’s memorandum of decision on the motion stated that the plaintiffs had failed to show that the administrative remedy was futile or inadequate and to present any reason why they were not subject to the requirements of § 22a-342. This appeal followed.

I

The plaintiffs argue that the trial court erred in dismissing their appeal for failure to exhaust an administrative remedy because the applicability of the remedy, i.e., filing an application for a permit, raises a jurisdictional issue, thereby creating an exception to the exhaustion requirement. The plaintiffs maintain that, because the hearing officer found the proposed use of their land within the stream channel encroachment lines to be an agricultural use, they are exempt from regulation in accordance with General Statutes § 22a-349, and DEP is without jurisdiction to require them to file an application for a permit. In support of their claim they point to Aaron v. Conservation Commission, 178 Conn. 173, 179, 422 A.2d 290 (1979) (Aaron I), where we stated that “resort to administrative agency procedures will not be required when the claims sought to be litigated are jurisdictional.” According to the plaintiffs, therefore, the appeal was properly brought, pursuant to General Statutes § 4-183, to the Superior Court to determine the jurisdictional authority of DEP concerning the applicability of §§ 22a-342 and 22a-349. We conclude, however, that, under the circumstances of this case, the administrative agency must first be given the opportunity to determine its own jurisdiction.

The right to appeal a decision of an administrative agency exists only under statutory authority. As previously mentioned, the plaintiff in this case has appealed pursuant to § 4-183 of the UAPA. A plaintiff seeking a right to appeal under § 4-183 must exhaust all administrative remedies. “ ‘ “It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 358-59, 377 A.2d 1099 (1977) ....”’ Cummings v. Tripp, 204 Conn. 67, 75, 527 A.2d 1230 (1987).” Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 438, 559 A.2d 1113 (1989); Pet v. Department of Health Services, 207 Conn. 346, 350-51, 542 A.2d 672 (1988). “We have frequently held that where a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.” Norwich v. Lebanon, 200 Conn. 697, 708, 513 A.2d 77 (1986). “Because the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter”; Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556, 529 A.2d 666 (1987); whether the trial court erred in dismissing the plaintiffs’ claim because they failed to exhaust their administrative remedies.

In Greater Bridgeport Transit District v. Local Union 1336, supra, 439, we stated that “[w]here there is in place a mechanism for adequate judicial review, such as that contained in § 4-183, ‘[i]t is [the] general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court.’ 2 Am. Jur. 2d, Administrative Law § 332 and cases therein cited.” The requirement of exhaustion of remedies in the context of agency jurisdiction finds further support in several federal cases holding that an agency initially should decide its own jurisdiction. Rogers v. Bennett, 873 F.2d 1387, 1392-93 (11th Cir. 1989); Accion Social de Puerto Rico, Inc. v. Viera Perez, 831 F.2d 365, 371 (1st Cir. 1987); Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 918-19 (5th Cir. 1983); Deltona Corporation v. Alexander, 682 F.2d 888, 893 (11th Cir. 1982); Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir. 1981); West v. Bergland, 611 F.2d 710, 719 (8th Cir. 1979), cert. denied, 449 U.S. 821, 101 S. Ct. 79, 66 L. Ed. 2d 23 (1980); see also 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law § 49.02 [3]; B. Schwartz, Administrative Law (2d Ed.) § 8.34.

In Deltona Corporation v. Alexander, supra, for example, the plaintiff, Deltona Corporation, purchased approximately 10,300 acres of land in Marco Island, Florida, a large section of which it proceeded to develop by construction. Several years later, after a significant change in federal and state laws regarding the granting of certain permits, the plaintiff sought to obtain the necessary permits for the remainder of Marco Island. The district engineer of the Army Corps of Engineers denied the permits for construction on two undeveloped areas of the island because of the potential destruction of wetlands, bay bottom, fish and wildlife. This decision was subsequently upheld by the chief of engineers. The plaintiff filed suit in federal court for review of the Corps’ denial of permits and the court granted summary judgment for the Corps, from which the plaintiff appealed.

On appeal, the plaintiff sought to challenge the extent of the Corps’ jurisdiction over Marco Island. The Eleventh Circuit Court of Appeals, in upholding the District Court’s decision, concluded that summary judgment for the Corps was proper because the plaintiff had failed to exhaust its administrative remedies. The court stated that because the Corps has not had an opportunity to rule on its jurisdiction, “[wjhatever controversy exists . . . may well be settled by an administrative determination of how much of Deltona’s property constitutes wetlands, thus avoiding unnecessary judicial intervention.” Id., 893. The court, in referring to the policies supporting the exhaustion requirement, stated that “committing this determination to the Corps in the first instance permits complete development of the factual record, utilizes the agency’s expertise in this technical area, and encourages the development of uniform standards to guide future decisions.” Id., 893-94.

We have similarly stated that the “doctrine of exhaustion of [administrative] remedies fosters an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency’s findings and conclusions. It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.” Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 691-92, 553 A.2d 1104 (1989). In McKart v. United States, 395 U.S. 185, 194-95, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969), the United States Supreme Court stated that “judicial review may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise discretion or apply its expertise. . . . [Njotions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. . . . [I]t is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.”

II

The commissioner of environmental protection has been given broad powers with reference to the protection of lakes, rivers and streams within the state. General Statutes §§ 22a-337 through 22a-364. The commissioner is responsible for regulating flood control, erosion and pollution on all navigable streams and rivers. In 1955, the General Assembly, in response to the disastrous floods of that year, enacted legislation permitting the water resource commission to establish stream channel encroachment lines. See Vartelas v. Water Resources Commission, 146 Conn. 650, 653-54, 153 A.2d 822 (1959).

On May 1, 1963, after a public hearing, the water resources commission established stream channel encroachment lines in Cromwell on certain property bordering the river pursuant to General Statutes (Cum. Sup. 1961) § 25-3 (c). The location of these lines was based on the boundaries of the area “which would be inundated by a flood similar in size to one or more recorded floods which have caused extensive damages.” General Statutes § 22a-343. Section 22a-342 provides that no obstruction or encroachment is to be placed beyond any stream channel encroachment line “in the direction of the waterway or flood-prone area” unless authorized by the commissioner. After consideration of the factors set out in § 22a-342, the commissioner is authorized to issue or deny permits upon applications for placing obstructions or encroachments within the lines. The statutory scheme, however, permits agricultural or farming uses of land within the stream channel encroachment lines. Specifically, § 22a-349 provides: “The provisions of sections 22a-342 to 22a-348, inclusive, shall not be deemed to restrict agricultural or farming uses . . . . ” This appeal involves the applicability of §§ 22a-342 and 22a-349 to the plaintiffs’ proposed use of their property.

The jurisdictional authority of the commissioner in this case depends on the applicability of § 22a-342. The commissioner asserts that § 22a-342 applies to the plaintiffs’ proposed use of their property. On the other hand, the plaintiffs assert that § 22a-349 prohibits the commissioner from applying § 22a-342 and subjecting them to the permit process. As previously mentioned, § 22a-342 allows the commissioner to issue or deny permits to individuals seeking to place an “obstruction or encroachment” within the stream channel encroachmentlines. Therefore, the commissioner’s jurisdictional authority to require the plaintiffs to obtain permits is limited to the placement of “obstructions or encroachments” within the lines.

Whether the plaintiffs’ proposed activity within the stream channel encroachment lines is a placement of an “obstruction or encroachment” requiring them to obtain a permit pursuant to § 22a-342 and whether the plaintiffs’ proposed use of their land is an “agricultural or farming” use within § 22a-349 are factual determinations best left to the commissioner. This is precisely the type of situation that calls for agency expertise. Relegating these determinations to the commissioner in the first instance will provide a complete record containing the commissioner’s interpretation of the relevant statutory provisions for judicial review. “The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise.” McKart v. United States, supra, 193-94.

The plaintiffs contend, however, that DEP lacks jurisdiction over their proposed use of their land,' and that they are therefore not subject to the permit process. They argue, accordingly, that requiring them to “undergo that very procedure is not a remedy.” The plaintiffs, therefore, assert that there were no adequate remedies available to exhaust and thus their appeal pursuant to § 4-183 was proper. We do not agree.

Like all other judicial doctrines, there are exceptions to the rule of exhaustion; however, “ ‘we have recognized such exceptions only infrequently and only for narrowly defined purposes.’ LaCroix v. Board of Education, 199 Conn. 70, 79, 505 A.2d 1233 (1986). Among the exceptions is where recourse to the administrative remedy would be futile or inadequate; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541-42, 469 A.2d 382 (1983) . . . .” Pet v. Department of Health Services, supra, 353. An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief.

The underlying relief the plaintiffs claim to seek is to expand their agricultural crop land. In order to do this, the plaintiffs maintain, it is necessary for them to cut trees within the stream channel encroachment lines. By requiring the plaintiffs to submit to the permit process under § 22a-342, the commissioner would be able to determine whether the plaintiffs’ proposed activity would be an obstruction or encroachment within the stream channel encroachment lines and whether the plaintiffs’ proposed use of their land is a permitted use within § 22a-349.

If the commissioner determines that she has jurisdiction, i.e., the plaintiffs’ proposed activity would be an obstruction or encroachment, and that the plaintiffs’ proposed use is one exempted by § 22a-349, the plaintiffs would then be allowed to cut trees on their property without a permit. This procedure is in accord with Aaron v. Conservation Commission, 183 Conn. 532, 547, 441 A.2d 30 (1981) (Aaron II), where we stated: “[T]he administrative requirement that one apply to the commission in order to determine if his application is one for an exempt use ... is, in and of itself, valid and is administratively necessary for the commission to discharge its function under the enabling statutes. . . . [Tjhere should be an administrative determination of any claimed exemption.”

If the commissioner determines, however, that she has jurisdiction over the plaintiffs’ proposed activity and that the plaintiffs’ proposed use is not within § 22a-349, then she must decide whether to issue or deny a permit. Issuance of a permit would provide the plaintiffs with the relief they seek. If the commissioner denies the plaintiffs a permit, they can then pursue an appeal to the Superior Court pursuant to § 4-183 challenging the commissioner’s jurisdiction and her decision denying them a permit. Therefore, the permit process under § 22a-342 is an adequate remedy available for the requested relief and is within the agency’s authority to grant.

III

The plaintiffs contend further, however, that the hearing held by the commissioner’s hearing officer regarding the validity of the cease and desist order and the finding that the order was to remain in effect until the plaintiffs obtained a permit were determinations that DEP had jurisdiction over a use described in § 22a-349. The plaintiffs maintain, therefore, that in accordance with § 4-175 their appeal pursuant to § 4-183 was proper. The plaintiffs point to that part of General Statutes (Rev. to 1987) § 4-176 that provides: “If the agency issues an adverse ruling, the remedy for ah aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183.” (Emphasis added.)

The commissioner’s hearing officer conducted a hearing pursuant to General Statutes § 22a-7 to determine the validity of the cease and desist order. Section 22a-7 authorizes the commissioner “whenever he finds after investigation that any person is causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which, in his judgment, will result in or is likely to result in imminent and substantial damage to the environment . . . may, without prior hearing, issue a cease and desist order . . . to such person to discontinue . . . such condition or activity.” Section 22a-7 further provides that within ten days of such order the commissioner shall “hold a hearing to provide the person an opportunity to be heard and show that such condition does not exist.” The hearing officer’s jurisdictional authority is, therefore, limited to finding whether a person’s activity will result in or is likely to result in imminent and substantial damage to the environment.

A hearing held pursuant to § 22a-7 is mandatory and conducted for the limited purpose of determining whether a person’s activity is dangerous to the environment. In contrast, a hearing held pursuant to §§ 4-177 and 4-178 for the purpose of finding facts for a declaratory ruling is discretionary and is ordinarily initiated by the filing of a petition requesting the commissioner to issue a ruling concerning the applicability of any statutory provision, regulation or order of the agency. The plaintiffs did not file a petition with the commissioner seeking a ruling as to whether she had jurisdiction to require them to obtain a permit for a proposed use described in § 22a-349. Therefore, we conclude that the hearing held pursuant to § 22a-7 was not equivalent to a hearing conducted for the purpose of a declaratory ruling giving rise to an appeal pursuant to § 4-183. Accordingly, we reject the contention of the plaintiffs that DEP has already adjudicated the jurisdictional issue by virtue of the decision appealed from, which simply leaves the cease and desist order in effect until a final determination has been made in a permit application proceeding as to whether their proposed activities are allowed by § 22a-349. Postponing the resolution of this issue until the plaintiffs have applied for a permit rather than deciding it within the confines of a § 22a-7 hearing was well within the discretion of the DEP hearing officer.

We conclude that judicial intervention, before the commissioner has finally determined whether she has jurisdiction over the plaintiffs’ proposed use of their land, is unwarranted because of the availability of an adequate administrative remedy and the failure of the plaintiffs to demonstrate that they will suffer any substantial harm if they are required to exhaust this remedy. The trial court properly dismissed the appeal.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 4-183 (a) provides: “appeal to superior court, (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review by way of appeal under this chapter, provided, in ease of conflict between this chapter and federal statutes or regulations relating to limitations of periods of time, procedures for filing appeals or jurisdiction or venue of any court or tribunal, such federal provisions shall prevail. A preliminary, procedural or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.”

       General Statutes § 22a-342 provides: “establishment of stream CHANNEL ENCROACHMENT LINES. PERMITS FOR ENCROACHMENTS, required findings. The commissioner shall establish, along any tidal or inland waterway or flood-prone area considered for stream clearance, channel improvement or any form of flood control or flood alleviation measure, lines beyond which, in the direction of the waterway or flood-prone area, no obstruction or encroachment shall be placed by any person, firm or corporation, public or private, unless authorized by said commissioner. The commissioner shall issue or deny permits upon applications for establishing such encroachments based upon his findings of the effect of such proposed encroachments upon the flood-carrying and water storage capacity of the waterways and flood plains, flood heights, hazards to life and property, and the protection and preservation of the natural resources and ecosystems of the state, including but not limited to ground and surface water, animal, plant and aquatic life, nutrient exchange, and energy flow, with due consideration given to the results of similar encroachments constructed along the reach of waterway.”

       General Statutes § 22a-349 provides: “permitted agricultural use. The provisions of sections 22a-342 to 22a-348, inclusive, shall not be deemed to restrict agricultural or farming uses of lands located within the stream channel encroachment lines including the building of fences, provided this section shall not apply to farm buildings and farm structures.”

       On July 14,1988, the commissioner issued an amended cease and desist order to Leander Crete and Crele Construction Corporation. Crete, president of the Crele Construction Corporation, had a contract with the plaintiffs to cut trees on the plaintiffs’ property within the stream channel encroachment lines.
      On December 19,1988, the court entered a default judgment against Crete and his corporation for failure to appear.

       General Statutes § 22a-7 provides: “cease and desist order, subsequent hearing. The commissioner, whenever he finds after investigation that any person is causing, engaging in or maintaining, or is about to cause, engage in or maintain, any condition or activity which, in his judgment, will result in or is likely to result in imminent and substantial damage to the environment, or to public health within the jurisdiction of the commissioner under the provisions of chapters 440, 442, 445, 446a, 446c, 446d and 446k or whenever he finds after investigation that there is a violation of the terms and conditions of a permit issued by him that is in his judgment substantial and continuous and it appears prejudicial to the interests of the people of the state to delay action until an opportunity for a hearing can be provided, may, without prior hearing, issue a cease and desist order in writing to such person to discontinue, abate or alleviate such condition or activity. Upon receipt of such order such person shall immediately discontinue, abate or alleviate or shall refrain from causing, engaging in or maintaining such condition or activity. The commissioner shall, within ten days of such order, hold a hearing to provide the person an opportunity to be heard and show that such condition does not exist. Such order shall remain in effect until ten days after the hearing within which time a new decision based on the hearing shall be made.”

       The plaintiffs alleged several constitutional violations, including the violation of their due process rights by the commissioner in the appointment of a DEP employee to rule on the propriety of the DEP’s cease and desist order, DEP’s unconstitutional usurpation of legislative power by requiring a permit for an exempt agricultural use, and the unconstitutional taking of their property without compensation. The plaintiffs have failed to brief these issues on appeal. We have generally held that issues not briefed are deemed abandoned and not reviewed by this court. Cersosimo v. Cersosimo, 188 Conn. 385, 396 n.17, 449 A.2d 1026 (1982); Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982). The plaintiffs’ claim that, because they have raised several constitutional issues, they are exempt from the exhaustion requirement, therefore, will not be reviewed by this court.

       In Aaron v. Conservation Commission, 178 Conn. 173, 422 A.2d 290 (1979) (Aaron I), the plaintiff instituted a declaratory judgment action, challenging the jurisdiction of the conservation commission of the town of Redding and attacking the validity of certain of its regulations that required the plaintiff to obtain an inland wetlands permit to install a septic system. The trial court declined to entertain the action on the ground that the issues the plaintiff sought to have litigated could be more appropriately resolved by applying to the commission for an inland wetlands permit and, if unsuccessful, by taking an appeal from such denial pursuant to General Statutes (Rev. to 1979) § 22a-43. This court reversed the trial court, proclaiming that “declaratory judgment proceedings are appropriate for determining jurisdictional issues or questions concerning the validity of the regulations of an administrative agency, while questions concerning the correctness of an agency’s decision in a particular case or of the sufficiency of the evidence can properly be resolved only by appeal.” Id., 178. The court also relied on the alternative ground that “exhaustion of administrative remedies will not be required when the remedies available are futile or inadequate,” concluding that “there is some question as to whether the plaintiff’s claims could properly be litigated by way of appeal because of the rule that a party who seeks some advantage under a statute or ordinance, such as a permit or a variance, is precluded from subsequently attacking the validity of the statute or ordinance.” Id., 179.
      In Greater Bridgeport Transit District v. Local Union 1336, 211 Conn. 436, 439, 559 A.2d 1113 (1989), a suit for an injunction, however, we endorsed the “ ‘general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act—that is, to determine the coverage of the statute—and this question need not, and in fact cannot, be initially decided by a court.’ 2 Am. Jur. 2d, Administrative Law § 332 and cases therein cited.”
      Although it may be possible to distinguish the two cases on the basis of differences in the relief sought and the availability of an administrative remedy, we regard Greater Bridgeport Transit District as implicitly overruling Aaron I with respect to the absence of an exhaustion requirement for the determination of an agency’s jurisdiction when an adequate administrative remedy is available. In any event, the plaintiffs misplace their reliance upon Aaron I, because we do not have before us a declaratory judgment action but an administrative appeal pursuant to General Statutes § 4-183, which expressly requires exhaustion of “all administrative remedies available within the agency” as a prerequisite to an appeal.

       Several of the federal courts that have addressed the issue of exhaustion of administrative remedies in the context of an agency’s jurisdiction have analyzed it by looking at the following three factors in determining whether to require exhaustion: (1) the extent of injury from pursuit of an administrative remedy; (2) clarity of the agency’s jurisdiction; and (3) involvement of specialized administrative understanding in the question of jurisdiction. Rogers v. Bennett, 873 F.2d 1187 (11th Cir. 1989); Accion Social de Puerto Rico, Inc. v. Viera Perez, 831 F.2d 365 (1st Cir. 1987); SEC v. G. C. George Securities, Inc., 637 F.2d 685 (9th Cir. 1981); Shawnee

        Coal Co. v. Andrus, 661 F.2d 1083 (6th Cir. 1981); 4 K. Davis, Administrative Law (2d Ed. 1983) § 26:5. Although these factors may be used in analyzing this type of issue, we have recognized the often quoted rule stated in McKart v. United States, 395 U.S. 185, 193, 89 S. Ct. 1657, 23 L. Ed. 2d 194 (1969), that the “ ‘[application of the [exhaustion] doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved’ and that the doctrine should not be ‘applied blindly in every case.’ ” Cummings v. Tripp, 204 Conn. 67, 78-79, 527 A.2d 1230 (1987); Greenwich v. Liquor Control Commission, 191 Conn. 528, 541, 469 A.2d 382 (1983).

       In addition to obtaining a permit, the plaintiffs have available as a remedy the filing of a petition for a declaratory ruling with the commissioner. General Statutes (Rev. to 1987) § 4-176 provides in part that an “agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision . . . .’’An adverse ruling by the agency is appealable under General Statutes § 4-183 and the failure of an agency to issue a ruling permits an action for a declaratory judgment under General Statutes § 4-175. Commission on Hospitals & Health Care v. Stamford Hospital, 208 Conn. 663, 672, 546 A.2d 257 (1988). The plaintiffs can file with the commissioner a petition for a declaratory ruling requesting the commissioner to determine the applicability of General Statutes §§ 22a-342 and 22a-349 to the proposed use of their land within the stream channel encroachment lines. See Connecticut Assn. of Boards of Education, Inc. v. Shedd, 197 Conn. 554, 560-62, 499 A.2d 797 (1985). If “the available administrative procedure . . . provide[s] the plaintiffs with a mechanism for attaining the remedy that they seek”; Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 560 n.10, 529 A.2d 666 (1987); they must exhaust that remedy.

       In the present case, the plaintiffs are requesting that we interpret General Statutes § 4-176 to allow the substitution of findings made at a hearing conducted pursuant to General Statutes § 22a-7 for those that should be made at a hearing conducted for the purpose of finding facts for a declaratory ruling. We will not construe § 4-176 to permit the substitution of a hearing conducted in accordance with § 22a-7 for the statutory requirement of a hearing conducted for the purpose of finding facts for a declaratory ruling. See Liberty Mobile Home Sales, Inc. v. Cassidy, 6 Conn. App. 723, 726, 507 A.2d 499 (1986).

       The plaintiffs further contend that the cutting of trees within wetlands is a use permitted by General Statutes § 22a-40 (a) (1) and therefore is not subject to the commissioner's cease and desist authority under General Statutes § 22a-7. The plaintiffs assert that § 22a-40 (a) (1) is applicable to the plaintiffs’ land because the hearing officer found that the plaintiffs’ property was a wetland. They specifically point to the hearing officer’s finding that “[t]he land proposed for cutting of the floodplain forest and expansion of agriculture crop land within the stream channel encroachment lines consists of poorly drained alluvial soils which are the characteristics defining wetlands by soil under state statutes.” They assert that, based on this finding, the exemption provided by § 22a-40 (a) (1) for “clear cutting of timber” for agricultural purposes deprived the commissioner of authority to issue the cease and desist order pursuant to § 22a-7.
      The commissioner issued the cease and desist order “for work within established stream channel encroachment lines” and failure to obtain a permit in accordance with General Statutes § 22a-342. The commissioner did not issue the order on the ground that the plaintiffs’ proposed use of their property would damage the wetlands. It is unclear from the hearing officer’s finding whether the plaintiffs’ property is a wetland as defined in General Statutes § 22a-38 (15). The hearing officer found only that the property contained soil that had some characteristics of wetlands. Whether the plaintiffs’ property is a wetland as defined in § 22a-38 (15), whether the plaintiffs’ proposed use falls within § 22-40 (a) (1) permitted operations and uses in wetlands, and the applicability of General Statutes §§ 22a-342 and 22a-349 to wetlands within stream channel encroachment lines are factual determinations involving statutory interpretations that are better left to the commissioner in the first instance.

       Notably, the plaintiffs have failed to allege that they would be harmed if they were to file an application for a permit with the commissioner. “Absent a showing of immediate and irreparable harm, a party who is aggrieved by a decision of an administrative agency may not institute an independent action for the purpose of bypassing the UAPA appeal process.” Harwinton Drilling & Engineering Co. v. Public Utilities Control Authority, 188 Conn. 90, 98, 448 A.2d 210 (1982).


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Timothy F. Bannon, Commissioner of Revenue Services v. Samuel Schwartz, Executor (Estate of Anna G. Schwartz)
    (13884)
    Peters, C. J., Shea, Callahan, Covello and Hull, Js.
    Argued May 10
    decision released July 17, 1990

      Maurice J. Sturm, tax attorney II, with whom, on the brief, were ClarineNardi Riddle, attorney general, and Albert E. Sheary, first assistant tax commissioner, for the appellant (plaintiff).

      Jonathan J. Klein, for the appellee (defendant).
   Callahan, J.

The sole issue presented by this appeal is whether an executor’s characterization of a right to withdraw trust principal in his calculation of the succession tax is a “valuation” or “concession of taxability” to which the commissioner of revenue services is required to object under General Statutes § 12-359 (b). The Probate Court held that since the plaintiff, the commissioner of revenue services for the state of Connecticut (commissioner), had not filed an objection to the succession tax return of the defendant executor, the commissioner was required to accept the defendant’s treatment of the right to invade the trust principal as nontaxable in calculating the succession tax. On appeal to the Superior Court, the court granted the defendant’s motion for summary judgment, concluding that as a matter of law the commissioner had failed to comply with the provisions of § 12-359 (b). The commissioner appealed to the Appellate Court, and we transferred the matter to this court pursuant to Practice Book § 4023. Because we conclude that the commissioner was not required to comply with § 12-359 (b) under the circumstances of this case, we reverse the judgment of the Superior Court.

The facts are not in dispute. The decedent, Anna G. Schwartz, a resident of Trumbull, died on February 18, 1987. The Probate Court for the district of Trumbull appointed the defendant, Samuel Schwartz, the decedent’s husband, to serve as the executor of her will. The defendant executor filed a succession tax return with the Probate Court, which received a certified copy of the return on April 11, 1988. Upon filing the return, the defendant paid the commissioner $28,733.38, the amount of the succession tax and related interest due according to the defendant’s calculations. On October 12,1988, the commissioner computed and assessed the succession tax in accordance with General Statutes § 12-367 (a) and mailed the computation and assessment to the defendant. The commissioner’s assessment reported a balance due of $12,597.21.

Article four of the decedent’s will provided for the creation of a trust under which net income was to be paid to her husband on a monthly basis. Her husband was also given the right to withdraw $5000 from the trust principal each year, provided that he request such a withdrawal within the first three months of the calendar year. Upon the death of her husband, the trust corpus was to pass to the decedent’s son.

In a cover letter accompanying the succession tax return, the defendant outlined his calculation of the succession tax. Since the succession tax rates vary based on the relationship of the beneficiary to the decedent and the amount of property transferred, the executor had to allocate the value of the trust ($500,000) between the Class AA lifetime beneficiary (the husband) and the Class A residuary beneficiary (the son) in order to calculate the succession tax.

The commissioner and the defendant agree that the value of the husband’s life interest in the net income of the trust is taxable at Class AA rates applicable to spouses of decedents. They disagree, however, over the proper treatment of the defendant’s right to invade the trust principal in calculating the succession tax. In his calculation of the succession tax for the husband, the defendant did not include any amount related to the right to invade the trust principal because the defendant did not consider that right to be taxable to the husband. In the commissioner’s calculation of the succession tax, however, the value of the husband’s interest in the trust includes both the value of his life interest in the net income of the trust and the value of his right to invade the trust principal.

The defendant applied for a hearing before the Probate Court pursuant to § 12-359 (b) in order to settle the question of the treatment to be accorded the right to invade the trust principal. The Probate Court concluded that because the commissioner had failed to file an objection to the defendant’s succession tax return pursuant to § 12-359 (b), he could not contest the defendant’s position that the right to 'withdraw trust principal was not taxable to the husband.* *** On appeal to the Superior Court, the court granted the defendant’s motion for summary judgment because it likewise concluded that the commissioner had forfeited his right to challenge the defendant’s treatment of the right to invade trust principal by failing to make a timely objection under § 12-359 (b).

Before reviewing the parties’ arguments concerning the proper interpretation of § 12-359 (b), we must provide a brief background on the Connecticut succession tax. “An inheritance or succession tax is a tax imposed on the privilege of receiving property from a decedent at death.” Tax Commissioner v. Estate of Bissell, 173 Conn. 232, 238, 377 A.2d 305 (1977). General Statutes § 12-359 (a) outlines the information that the taxpayer must provide on the succession tax return. “Section 12-359 (b) delineates the method of objecting to valuations and concessions of taxability of individual items set forth in the succession tax return and sets out the scope of the Probate Court hearing and determination on the objections. Section 12-359 (b) further provides the method of determining the gross taxable estate upon which the tax computation shall be based.” Heffernan v. Slapin, 182 Conn. 40, 44, 438 A.2d 1 (1980). If the commissioner fails to file an objection under § 12-359 (b) to “valuations” or “concessions of taxability” in the taxpayer’s succession tax return, he forfeits the right to challenge the taxpayer’s treatment of the “valuation” or “taxability” issue in calculating the succession tax. Id., 47. Section 12-367 (a) requires the commissioner of revenue services to compute and assess the succession tax, while § 12-367 (b) provides the taxpayer with the right to a hearing before the Probate Court to challenge the commissioner’s computation of the succession tax.

The defendant argues that his characterization of the right to invade trust principal as nontaxable in calculating the succession tax is a claim of nontaxability to which the commissioner was required to object under the “concessions of taxability” language of § 12-359 (b). The commissioner claims, to the contrary, that the defendant’s treatment of the right to invade trust principal as nontaxable for succession tax purposes is neither a “valuation” nor a “concession of tax-ability” within the meaning of these terms in § 12-359 (b), and that the commissioner therefore was not required to file an objection under § 12-359 (b) in order to challenge the defendant’s treatment of this right as nontaxable. The commissioner argues that the terms “valuations” and “concessions of taxability” apply only to valuation or taxability issues that affect the determination of the amount of the net taxable estate, and do not apply to issues that affect only the rate of taxation of property which the taxpayer has included in the gross taxable estate at a value that is not challenged by the commissioner. Because he had no objection to the amount the defendant reported as the net taxable estate, the commissioner asserts that he had no objection to any “valuations” or “concessions of taxability” as those terms are used in § 12-359 (b).

The basic goal of statutory construction is to determine and give effect to the apparent intent of the legislature. Ruskewich v. Commissioner of Revenue Services, 213 Conn. 19, 23-24, 566 A.2d 658 (1989); Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987). “ Tn seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment [and] to the legislative policy it was designed to implement . . . .’ [Texaco Refining & Marketing Co. v. Commissioner, supra]; Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 128, 527 A.2d 672 (1987); Kellems v. Brown, 163 Conn. 478, 502-503, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973).” Ruskewich v. Commissioner of Revenue Services, supra, 24. “A succession tax statute must be construed as a whole; its various provisions are in pari materia and must be construed together so as to carry out the intent of the legislature.” Tax Commissioner v. Estate of Bissell, supra, 245-46; see Ruskewich v. Commissioner of Revenue Services, supra, 25.

Section 12-359 (a) requires that “an appraisal by the fiduciary or transferee, at its fair market value on the date of decedent’s death, of each item of property, the transfer of which may be taxable . . . [and] a statement as to whether, or to what extent, the reported transfers are conceded taxable” be included in the succession tax return. Pursuant to § 12-359 (b) the commissioner is required to file within one hundred twenty days of receiving the succession tax return “a statement in writing setting forth in detail such objections as he may have to the valuations or concessions of tax-ability appearing [on the succession tax return].” (Emphasis added.) Section 12-359 (b) further provides that “[t]he value of the gross taxable estate as set forth in the tax return or any amendment thereof, or as altered by written agreement between the commissioner of revenue services and such fiduciary or transferee or as set by the probate court upon a hearing under this subsection or under subsection (b) of section 12-367 shall be the basis for computing the succession tax.” (Emphasis added.)

This final sentence establishes that the primary purpose of a hearing under § 12-359 (b) is to resolve disagreements between the taxpayer and the commissioner over “valuations” or “concessions of tax-ability” that affect the value of the gross taxable estate. This court has recognized that § 12-359 (b) provides a procedure for determining the value of the gross taxable estate when this amount is in dispute. Heffernan v. Slapin, supra, 44. If, for instance, the commissioner and the taxpayer disagree over the fair market value of real property included in the gross taxable estate; see, e.g., Hunt v. Dubno, 1 Conn. App. 529, 473 A.2d 1235 (1984); or over whether the assets of a trust are subject to the succession tax; see, e.g., Heffernan v. Slapin, supra; the commissioner must then file an objection under § 12-359 (b) in order to challenge the taxpayer’s characterization of these issues of “valuation” and “taxability.”

The defendant argues that the question of how to treat the right to invade the trust principal for succession tax purposes involves a question of the taxability of the invasion power and that § 12-359 (b) required the commissioner to object to his treatment of the power as nontaxable if he wished to impose a tax. This argument fails to recognize that, because the primary purpose of a hearing under § 12-359 (b) is to resolve differences as to the value of the gross taxable estate, “valuations” or “concessions of taxability” within the meaning of § 12-359 (b) refer only to those valuations or concessions of taxability that affect the amount a taxpayer reports as the gross taxable estate. The parties agree that the entire value ($500,000) of the trust assets is taxable for succession tax purposes. The succession tax treatment of the defendant’s right to invade the trust principal affects only the allocation of the net taxable estate between the Class AA beneficiary (the husband) and the Class A beneficiary (the son).* As a result, it affects only the rate at which the trust assets are taxable, and not the amount of the estate subject to the imposition of a succession tax.

The defendant’s interpretation of § 12-359 (b) is inconsistent with other succession tax provisions embodied in the statutes. “[Statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law. State v. Murtha, 179 Conn. 463, 466, 427 A.2d 807 [1980]; Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 [1978].” Heffernan v. Slapin, supra, 46.

Section 12-367 (a) provides that “[t]he tax imposed by the provisions of this chapter shall be computed and assessed by the commissioner of revenue services.” The rate of the Connecticut succession tax is based on both the value of property transferred and the identity of the persons receiving the property. General Statutes § 12-344 (a); Tax Commissioner v. Estate of Bissell, supra, 237. Determining the allocation of the net taxable estate between the various classes of beneficiaries is thus a necessary step in the process of computing the succession tax. G. Wilhelm, Connecticut Estates Practice Death Taxes (2d Ed.) § 80, pp. 178-80.

In Tax Commissioner v. Estate of Bissell, supra, 235-36, this court faced the issue of determining the proper allocation for succession tax purposes of a marital deduction trust as between the Class A and Class AA beneficiaries. Noting that the real issue concerned the rate of taxation, the court characterized the issue as involving a question of “the correctness of [the commissioner’s] computation.” Id., 236.

Since the question of the taxability of the right to invade the trust principal affects only the rate of the succession tax, and not the taxability of the trust assets, and since the determination of the appropriate rate is an integral part of the process of computing the succession tax, the defendant’s interpretation of § 12-359 (b) would require the commissioner to file an objection to an issue that arises only at the time of computation of the tax. This interpretation is not consistent with the fact that § 12-367 (a) places the duty of computing the succession tax upon the commissioner, not the taxpayer. “[I]t is settled that when two constructions [of a statute] are possible, courts will adopt that construction which makes the statutes effective and workable, and not one which would lead to difficult and unfathomable results. Wiegand v. Heffernan, 170 Conn. 567, 582, 368 A.2d 103 [1976]; Atwood v. Regional School District No. 15, 169 Conn. 613, 621, 363 A.2d 1038 [1975].” Heffernan v. Slapin, supra, 48.

Our interpretation of § 12-359 (b) does not leave an executor or administrator in the defendant’s position without a remedy. Section 12-367 (b) gives a fiduciary, transferee, or any other party in interest the right to a hearing in the Probate Court if such person files a timely objection to the commissioner’s computation of the succession tax.

The judgment of the Superior Court is reversed and the case is remanded to that court with direction to sustain the appeal and remand the case to the Probate Court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes § 12-359 (b) provides: “hearing on objections of commissioner of revenue services. Within one hundred twenty days after the receipt of such return, or any amendment thereto, the commissioner of revenue services shall file with the fiduciary or transferee and with such court of probate a statement in writing setting forth in detail such objections as he may have to the valuations or concessions of taxability appearing thereon. Unless such fiduciary or transferee concedes the correctness of the commissioner of revenue services’ opinion or the commissioner of revenue services withdraws his objection, the commissioner of revenue services, fiduciary or transferee may file in the court of probate for the district within which the transferor resided at the date of his death or, if the transferor died a nonresident of this state, in the court of probate for the district within which the real estate or tangible personal property is situated, an application for a hearing upon those items set out in such return as to which the commissioner of revenue services objects. Such court shall assign a time and place for a hearing upon the commissioner of revenue services’ objections to the return or amendment thereto and shall cause a copy of the order of hearing to be sent to the commissioner of revenue services, such fiduciary or transferee and all other parties in interest at least fifteen days before the time of such hearing. The commissioner or any other party in interest may appear before such court at such hearing and be heard concerning the objections of the commissioner of revenue services. If there is no appearance on behalf of the commissioner and it appears to the court that his position with respect to any matter in dispute ought not to be sustained, such hearing shall be adjourned for not less than ten days and notice of the time and place of such adjourned hearing shall be given to the commissioner, who may appear and be heard thereon. At such hearing, or adjournment thereof, the court shall hear such objections and determine the fair market value of any property, the reported value of which has been objected to, and the taxability of any transfer objected to and shall enter upon its records a decree determining the fair market value of property the value of which has been objected to and the taxability of any transfer which has been objected to. The decree of such court shall be conclusive upon the state and all other parties in interest unless an appeal is taken as provided for appeals from other decrees and orders of such court. A copy of such decree shall be forwarded forthwith to the commissioner and to the fiduciary or transferee by the judge or clerk of such court. The value of the gross taxable estate as set forth in the tax return or any amendment thereof, or as altered by written agreement between the commissioner of revenue services and such fiduciary or transferee or as set by the probate court upon a hearing under this subsection or under subsection (b) of section 12-367 shall be the basis for computing the succession tax.”

       General Statutes § 12-367 (a) provides: “computation and assessment OF TAX; OBJECTIONS THERETO. REFUND OF OVERPAYMENT. WHEN AMENDMENT TO return NOT required, (a) The tax imposed by the provisions of this chapter shall be computed and assessed by the commissioner of revenue services. If the commissioner of revenue services has not filed an objection to the valuations or concessions of taxability appearing on the return as provided in section 12-359, he shall, within one hundred twenty days of his receipt of the return required by the provisions of said section 12-359, if such return is correctly made out, or if he has filed such objection, within sixty days of his withdrawal of such objection or within sixty days of a final determination by the probate court of such objection, prepare a computation of the tax and, if the tax due is found to be ten dollars or more, file a copy thereof with the court of probate and mail a copy to the fiduciary or transferee, as the case may be.”

       The underlying dispute over the taxability of the right to invade the trust principal accounts for only a small portion, if any, of this amount. It appears that most or all of this assessment for unpaid succession tax arose from the defendant’s incorrect use of succession tax rates applicable to estates of decedents whose death occurred between July 1, 1987, and June 30,1988, rather than the rates applicable to estates of decedents whose death occurred between July 1,1986, and June 30,1987. Since neither party noted this error either in their briefs or at oral argument, we need not address this matter.

       General Statutes §§ 12-344, 12-344a, and 12-344b set forth the rates applicable to the various classes of beneficiaries. The defendant, as a surviving spouse, is a Class AA beneficiary, while the son is a Class A beneficiary.

       Because the Probate Court found that the commissioner had failed to comply with General Statutes § 12-359 (b), the Probate Court did not decide the underlying substantive issue of whether this right to withdraw trust principal is taxable to the defendant. This substantive issue is not before this court.

       General Statutes § 12-359 provides: “reports of representatives OF TRANSFERORS, (a) SUCCESSION TAX RETURNS AND AMENDMENTS thereto. Except as herein provided, within nine months after the death of the transferor the administrator, executor, administrator for tax purposes, administrator c.t.a. or administrator d.b.n. or administrator d.b.n., c.t.a. or, if there is no such fiduciary, any transferee of property, the transfer of which may be taxable under the provisions of section 12-341, 12-341b, 12-342,12-343, 12-345 or sections 12-345b to 12-345e, inclusive, shall file with the court of probate for the district within which the transferor resided at the date of his death or, if the transferor died a nonresident of this state, with the court of probate for the district within which the real estate or tangible personal property is situated, a sworn return, in duplicate, con-taming all items necessary to the correct computation and assessment of the tax. Such return shall include among other things: (1) A copy of the written instrument evidencing any transfer which may be taxable under the provisions of subsection (c) or (d) of section 12-341 or 12-341b or of section 12-342, 12-343, 12-345 or sections 12-345b to 12-345e, inclusive, or, if there is no written evidence, a written statement fully disclosing the circumstances under which the transfer was made; provided, in the case of a transfer evidenced by an insurance, annuity, pension plan, profit-sharing plan or other similar contract with an insurance company, in lieu of such copy of the written instrument, a summary thereof may be so filed; (2) an appraisal by the fiduciary or transferee, at its fair market value on the date of decedent’s death, of each item of property, the transfer of which may be taxable under the provisions of section 12-341,12-341b, 12-342,12-343, 12-345 or sections 12-345b to 12-345e, inclusive; (3) a statement as to whether, or to what extent, the reported transfers are conceded taxable; (4) all items claimed as deductions under the provisions of section 12-350 or 12-352, with an explanation of the circumstances under which each deduction is allowable; (5) a statement containing the name and relationship to the transferor of each individual, corporation, institution, society, association or trust benefiting by reason of any succession or transfer of property as set forth in sections 12-340 to 12-343, inclusive, sections 12-345 and 12-345b to 12-345e, inclusive, and the value of the estate passing to each such beneficiary; (6) such other information as the commissioner of revenue services may deem necessary for the correct computation and assessment of the tax and the proper administration thereof. The fiduciary or transferee may correct any item on the succession tax return by filing with the probate court an amendment thereto in duplicate, sworn to as the original return, containing such changes in the return as the fiduciary desires to make, but no such amendment shall be permitted which would change the reported value of any property or withdraw a concession of taxability after a hearing has been held thereon pursuant to the provisions of subsection (b) of this section and no such amendment shall be permitted after the computation of the tax has become final. The probate court shall, within ten days of the filing of such return or an amendment thereto, forward a certified copy thereof to the commissioner of revenue services. The commissioner of revenue services shall acknowledge receipt thereof to the probate court and the fiduciary or transferee.”

       General Statutes § 12-367 (b) provides: “Within sixty days after the mailing of the computation by the commissioner of revenue services, the fiduciary or transferee or any other party in interest may make written application to the probate court for a hearing upon the determination of the tax or the computation thereof. Such application shall set forth in detail the objection to the determination or computation of the tax and a copy of same shall be mailed to the commissioner at the time of filing. The probate court shall assign a time and place for a hearing upon such application not less than two nor more than four weeks after receipt thereof and shall cause a copy of the order of hearing to be sent to the commissioner of revenue services and to the fiduciary or transferee and to all other parties in interest at least ten days before the time of such hearing. The commissioner or any person interested may appear before such court at such hearing and be heard on any matter involved in the determination of the tax or the computation thereof, including, if no hearing has been held previously under the provisions of subsection (b) of section 12-359, any matter which could have been heard at such a hearing. If there is no appearance on behalf of the commissioner and it appears to the court that such computation ought to be modified, such hearing shall be adjourned for not less than ten days and notice of the time and place of such adjourned hearing and of any proposed change in such computation shall be given to the commissioner, who may appear and be heard thereon. At such hearing, or adjournment thereof, the court shall determine all matters properly before it, including the amount of such tax and shall enter upon its records a decree for such amount. A copy of the decree of the probate court shall be forwarded forthwith to the commissioner and the fiduciary or transferee by the judge or clerk of such court. Subject only to the provisions of subsection (d) of this section, the computation of the tax by the commissioner of revenue services shall be conclusive upon the state and all persons interested unless a hearing is held thereon as herein provided, in which case the decree of the probate court shall be conclusive upon the state and all persons interested unless an appeal is taken as provided for appeals from other decrees and orders of such court.”

       The defendant also claims that this court cannot reverse the ruling of the trial court unless we find that the Superior Court was clearly erroneous in ruling that the defendant treated the right to invade trust principal as nontaxable. Although it is true that the clearly erroneous standard is applicable when a factual finding of the trial court is challenged; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); there is no issue of fact in this case. The Superior Court’s determination that the defendant did not concede the taxability of the right to invade trust principal is relevant only if this taxability issue is one that falls within the meaning of “concessions of taxability” in General Statutes § 12-359 (b).

       On Schedule 3 (Summary of Taxable Estate) of the defendant’s succession tax return, the defendant was required to provide the amount of various types of property included in the gross taxable estate. These amounts are listed in a column labeled “value or amount conceded taxable.” The net taxable estate is determined by subtracting from the gross taxable estate deductions for expenses such as attorneys’ fees, funeral expenses, and debts of the deceased. See General Statutes § 12-350.

       We need not decide, on the present record, whether the reported amounts of the various deductions from the gross taxable estate under General Statutes § 12-350 are “valuations” or “concessions of taxability” within the meaning of General Statutes § 12-359 (b). It is sufficient for this case to hold that the commissioner need not object under § 12-359 (b) when he does not dispute the amount reported as the gross taxable estate.

       By treating the right to invade the trust principal as not taxable, the defendant allocated a greater portion of the trust to the son and a lesser portion to himself than the commissioner did.

       Although it is true that the taxpayer must make a preliminary calculation of the succession tax since the succession tax is due when the return is filed; G. Wilhelm, Connecticut Estates Practice Death Taxes (2d Ed.) § 80, p. 180; this calculation is not binding on the commissioner since it is the commissioner who has official responsibility for calculating the succession tax under General Statutes § 12-367 (a).


author: Covello, J.

text:
    State of Connecticut v. Jeffrey J. Dontigney
    (13693)
    Peters, C. J., Callahan, Covello, Hull and Borden, Js.
    Argued May 29
    decision released July 17, 1990

      Ira B. Grudberg, with whom was Steven J. DeFrank, for the appellant (defendant).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Covello, J.

This is the defendant’s appeal from his conviction, after a jury trial, of one count of the crime of murder in violation of General Statutes § 53a-54a. The issues on appeal are: (1) whether the trial court properly admitted evidence of an out-of-court experiment concerning the distance from the gun to the victim at the time of firing; and (2) whether the trial court properly admitted into evidence photographs of the experimental targets and a chart summarizing the test results. We conclude that the evidence was properly admitted and, therefore, affirm the conviction.

The jury could reasonably have found the following: On August 7,1987, Meriden police and emergency personnel found Linda Bernard, the defendant’s ex-wife with whom he was again living, lying face-up on a bed with a severe gunshot wound to her head. A bullet had entered the left temple region and exited the rear right side of the head. A .357 magnum pistol was resting upside down in her right hand. She died two days later. The defendant admitted being on the premises at the time of the shooting.

The defendant, who did not testify at trial, told the police that the victim had committed suicide with a .357 magnum pistol. There was also evidence that the defendant had a motive arising out of an earlier argument.

On February 10,1989, the jury convicted the defendant of murder in violation of § 53a-54a. On March 31, 1989, the trial court, Corradino, J., sentenced the defendant to thirty-three years imprisonment.

As part of its case-in-chief, the state introduced the testimony of Henry Lee, chief criminalist and director of the Connecticut state police forensic science laboratory. Over objection, Lee gave his opinion as to the distance of the gun, when fired, from the head of the victim. Lee based his opinion on the results of experiments conducted with the murder weapon. The experiment consisted of firing the identical type of ammunition used in the shooting at cheesecloth targets placed at various distances from the target. Lee testified that when a gun is fired, powder residue and other material is propelled out of the barrel, and either sticks to or falls off the target. He further testified that different patterns are produced when the gun is fired from different distances from the target. By comparing the patterns produced during the experiment with the powder marks found on the victim, Lee concluded that the weapon had been fired from a distance of between six and forty-two inches from the victim’s head. In addition to Lee’s testimony, the court admitted into evidence photographs of each of the cheesecloth targets and a chart summarizing the test results.

The defendant argues that the trial court erred in admitting Lee’s opinion because the test conditions were not substantially similar to conditions prevailing at the actual shooting. The defendant further argues that because the test did not accurately recreate the actual shooting, the photographs of the cheesecloth targets and the chart of the test results were misleading. We disagree.

I

In general, “ ‘[t]he determination of the qualification of an expert is largely a matter for the discretion of the trial court,’ ” and will be disturbed only if there has been an abuse of discretion. Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973), quoting Coffin v. Laskau, 89 Conn. 325, 329, 94 A. 370 (1915). The defendant here does not challenge Lee’s qualifications as an expert, but rather the accuracy of his experiment. In State v. Castagna, 170 Conn. 80, 90, 364 A.2d 200 (1976), this court affirmed the trial court’s decision admitting into evidence results from a powder residue experiment. “ ‘The results of a test to determine the distance from which a homicide weapon had been fired may be shown if the test was conducted under conditions substantially similar to those involved in the commission of the crime. . . . However, if the conditions are materially different, the results of the test will be excluded.’ ” Id., quoting F. Wharton, Criminal Evidence (13th Ed.) § 629, pp. 247-48. As we stated in Castagna, “ ‘[wjhether the test conditions were sufficiently similar is a question for the trial judge in his discretion to resolve, and his ruling will not be disturbed unless there has been an abuse of such discretion.’ ” State v. Castagna, supra, quoting F. Wharton, supra, p. 249; State v. Vennard, 159 Conn. 385, 395-96, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971). The defendant argues that while the weapon and ammunition used in the test were the same as in the actual shooting, the cheesecloth target was significantly different in adhesive quality and texture from human skin and, therefore, the test conditions were not substantially similar. Several jurisdictions have excluded evidence of test results based on the character of the target surface. In People v. Cohen, 50 N.Y.2d 908, 911, 409 N.E.2d 921, 431 N.Y.S.2d 446 (1980), the court held that the state failed to demonstrate that a target consisting of a live rabbit was substantially similar to human skin. In State v. Bass, 186 La. 139, 153, 171 So. 829 (1936), the court excluded evidence based on cardboard targets in the absence of testimony that the test was made under substantially similar condiditons. See also Rowe v. State, 120 Fla. 649, 655-56, 163 So. 22 (1935); McLendon v. State, 90 Fla. 272, 280-81, 105 So. 406 (1925); Epperson v. Commonwealth, 227 Ky. 404, 409-10, 13 S.W.2d 247 (1929); State v. Allison, 330 Mo. 773, 779-81, 51 S.W.2d 51 (1932); People v. Fiori, 123 App. Div. 174, 187, 108 N.Y.S. 416 (1908); State v. Justus, 11 Or. 178, 185, 8 P. 337 (1883); Morton v. State, 71 S.W. 281, 282 (Tex. Crim. App. 1902).

Courts in other jurisdictions, however, have admitted evidence from powder residue experiments where expert testimony demonstrates that the target material was substantially similar to human skin. For example, in People v. Spaight, 92 App. Div. 2d 734, 735, 461 N.Y.S.2d 118 (1983), the court admitted the results of tests using cotton targets when the “expert testified that the size of the powder residue pattern on the victim’s skin would not vary because of the material used as a target in the test.” The court in State v. Brooks, 16 Wash. App. 535, 540, 557 P.2d 362 (1976), admitted into evidence the results of firing tests when the state’s expert “testified that the paper targets used possessed] an ability to retain powder tatooing . . . in a manner very similar to human skin.” See also Thrawley v. State, 153 Ind. 375, 382, 55 N.E. 95 (1899); State v. Asbell, 57 Kan. 398, 407-408, 46 P. 770 (1896); Cooper v. State, 61 Okla. Crim. 318, 322-23, 67 P.2d 981 (1937); Irby v. State, 18 Okla. Crim. 671, 685, 197 P. 526 (1920); State v. Gruber, 150 Wash. 66, 73, 272 P. 89 (1928).

“ ‘ “In determining whether there has been an abuse of [the court’s broad] discretion [in admitting disputed evidence], the ultimate issue is whether the court could reasonably conclude as it did.” ’ ” State v. Wood, 208 Conn. 125, 130-32, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988), quoting DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972). Lee testified that the target surface does not affect the powder pattern and that the pattern left on cheesecloth would approximate that left on human skin. He further noted that cheesecloth patterns were the same as those produced on pigskin, the substance that most closely approximates human skin. On the basis of Lee’s testimony, the trial judge could reasonably have concluded that cheesecloth targets produced results substantially similar to human skin for the purposes of the test. Because the trial court could reasonably have decided that the test conditions were not materially different from the actual conditions, the trial court did not abuse its discretion in admitting the results of the experiment and Lee’s opinion based on it. While there may be some differences between the test material and human skin, “ ‘[t]he extent to which the conditions differ may be considered by the jury in determining the weight of such evidence.’ ” State v. Castagna, supra, 90; see also State v. Johnson, 442 So. 2d 193, 196 (Fla. 1983) (any differences between the test material and human skin went to the weight of the evidence, not admissibility); Irby v. State, supra, 685.

II

The defendant next argues that the trial court should have excluded the photographs of the cheesecloth targets and the expert’s chart of the test findings because they were deceptive and speculative.

“ ‘It is a general rule . . . that where [a] photograph is shown to be a faithful representation of what it purports to reproduce, it is admissible as an appropriate aid to the jury in applying the evidence . . . .’’’ State v. DeForge, 194 Conn. 392, 397, 480 A.2d 547 (1984), quoting People v. Durrant, 116 Cal. 179, 213, 48 P. 75 (1897). A trial judge’s admission of a photograph will not be overturned absent clear abuse of its broad discretionary powers.. State v. DeForge, supra, 396-97.

The defendant objected to the photographs because the underlying experiment was carried out under conditions materially different from the actual conditions. Having concluded that the trial court could reasonably have found the test conditions substantially similar to the actual conditions, we further conclude that the trial court properly admitted the photographs representing the results of the experiment.

The defendant further argues that a chart prepared by Lee explaining his test results was misleading. Generally, illustrative evidence “maybe received if, in the opinion of the trial court, it will assist the jury in understanding an expert’s testimony.” State v. Marino, 152 Conn. 85, 99, 203 A.2d 305, cert. denied, 380 U.S. 943, 85 S. Ct. 1025, 13 L. Ed. 2d 962 (1964). The defendant argues that the chart prepared by Lee explaining his test results should have been excluded because it was based on conditions significantly different from those at the location of the crime. As noted above, however, .the trial court was justified in finding that the experimental conditions were not materially different and, therefore, it was not an abuse of discretion to admit the chart.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-54a. MURDER DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”