author: BORDEN, J.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. ALLAN A. CRYSTAL, COMMISSIONER OF REVENUE SERVICES FEDERAL DEPOSIT INSURANCE CORPORATION v. JAMES E. MEEHAN, COMMISSIONER OF REVENUE SERVICES
    (SC 16079)
    McDonald, C. X, and Borden, Norcott, Palmer and Callahan, Js.

      Argued September 22
    officially released December 28, 1999

      William H. Narwold, with whom were Jaclyn C. Tañer, pro hac vice, Charles D. Ray and, on the brief, Ann S. DuRoss, pro hac vice, and Colleen Boles, pro hac vice, for the appellants (plaintiff in each case).

      Paul M. Scimonelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendant in each case).

      Janet C. Spegele and Michael E. Malamut, pro hac vice, filed a brief for the Connecticut Business and Industry Association as amicus curiae.
   Opinion

BORDEN, J.

The issue in this joint appeal concerns the scope of de novo review of a deficiency tax assessment pursuant to General Statutes § 12-237. The plaintiff in both cases, the Federal Deposit Insurance Corporation (FDIC), as receiver of New Connecticut Bank and Trust Company, N.A., and of New England Savings Bank (New England), appeals from the judgments of the trial court, following a joint trial, dismissing certain counts of the FDIC’s complaints in both cases for lack of subject matter jurisdiction. The FDIC had appealed to the trial court, pursuant to § 12-237, from certain deficiency assessments imposed by the defendant, the commissioner of revenue services (commissioner), pursuant to General Statutes § 12-233, and challenged administratively by the banks pursuant to General Statutes § 12-236. The common basis of the trial court’s dismissals, with respect to the claims asserted in those counts, was that because the banks had not filed amended returns and claims for refunds pursuant to General Statutes § 12-225 (b) (l), intertwined principles of sovereign immunity and exhaustion of administrative remedies deprived the court of subject matter jurisdiction over those counts. The FDIC claims that the scope of de novo review afforded by § 12-237 provided the court with subject matter jurisdiction over the counts of the complaints in question. We conclude that, under the circumstances of this case, the failure of the banks to have filed amended returns and claims for refunds pursuant to § 12-225 (b) (1) did not deprive the trial court of jurisdiction to consider the FDIC’s claims. We therefore reverse the judgments of dismissal of the trial court.

The legal background, facts and procedural history are undisputed. Since 1979, corporate taxpayers such as the banks, in general, have been required to include as gross income, for purposes of the state’s corporation business tax; General Statutes §§ 12-213 through 12-242i; interest income received from federal, state and local bonds, as well as from other securities and obligations. Moreover, under the corporation business tax, although a deduction is permitted for interest expenses incurred in holding bonds the income from which is taxable under the federal income tax, no such deduction is permitted for such expenses incurred in holding bonds the income from which is exempt from tax under the federal income tax. In 1996, this court, in D.A. Pincus & Co. v. Meehan, 235 Conn. 865, 880, 670 A.2d 1278 (1996), concluded that such diverse treatment did not violate the equal protection clauses of the federal and state constitutions. Furthermore, in contrast to the general taxability under the state corporation business tax of the income from federal, state and local bonds, from 1979 until 1995, the state, pursuant to various specific statutes, exempted from gross income under the state corporation business tax the interest income earned from certain Connecticut state and local bonds.

It is also undisputed that, until 1991, CBT was a federally chartered national bank qualified to do business in this state and subject to the state corporation business tax. CBT owned federal and municipal bonds during the tax years of 1983 through 1987. In its tax returns for the tax years 1983 through 1985, the first audit period, CBT included in gross income the interest earned from the federal and municipal bonds that it held, and deducted its interest expenses incurred in buying and holding such bonds. After auditing CBT’s 1983, 1984 and 1985 tax returns, the commissioner, in August, 1988, sent CBT audit workpapers showing a proposed tax recalculation of $2,112,532, plus interest. Following an informal conference with the commissioner, CBT received from the commissioner revised first audit workpapers adjusting the proposed tax recalculation to $2,175,329, plus interest. The audit results were based on the commissioner’s disallowance of the deduction taken by CBT for interest expenses related to the federally tax exempt municipal bonds. CBT made a partial payment of $3,000,000 on the tax recalculation for the first audit period. CBT also made a claim for a refund of that payment, and preserved its rights to protest further and to appeal any and all audit adjustments. Thereafter, in September, 1991, the commissioner sent the FDIC, which by then had become the receiver of CBT, a determination letter.

Meanwhile, the commissioner also audited CBT’s 1986 and 1987 tax returns, the second audit period, and issued a proposed tax recalculation indicating that CBT owed additional taxes for the second audit period, also based on disallowance of the interest expense deduction taken by CBT in connection with holding the federally tax exempt municipal bonds. In November, 1988, CBT made a partial payment of $1,800,000 on the second audit period tax recalculation. This payment also was made under protest with a claim for a refund of the payment, together with a preservation of CBT’s right to protest and to appeal any tax adjustment. In June, 1990, the commissioner issued a billing notice for the second audit period to CBT for the assessment of $1,594,231, plus interest.

Pursuant to § 12-236, CBT requested a hearing and a correction of the two deficiency tax assessments. Thereafter, in September, 1991, the commissioner sent the FDIC, as receiver for CBT, a determination letter notifying it that the request for a correction was denied, and that the commissioner had determined that CBT owed an additional $386,817 for the second auditperiod. In October, 1991, pursuant to § 12-237, the FDIC filed its appeal in the present case to the trial court from the two deficiency assessments.

Until 1993, New England was a state chartered, federally insured bank that was subject to the state corporation business tax. New England owned federal and municipal obligations during 1986. In its 1986 corporation business tax return, New England included in income the interest earned from the federal and municipal bonds that it held, and deducted its interest expenses incurred in buying and holding such bonds. In May, 1988, after auditing New England’s tax returns for the tax year 1986, the commissioner issued to New England a notice of assessment of an additional tax for 1986, in the amount of $17,654, plus interest, on the ground that New England improperly had deducted interest expenses incurred in holding the federally tax exempt municipal bonds.

Pursuant to § 12-236, New England applied for a hearing and a correction of the tax assessed. New England also made a protest payment of $21,773.28. Thereafter, the commissioner notified New England that its request for a correction was denied. In April, 1990, pursuant to § 12-237, New England filed its appeal in the present case to the trial court from the deficiency assessment.

The commissioner’s deficiency assessments against both CBT and New England were based on the disallowance of certain deductions taken by the banks for expenses related to municipal bond income. That type of income is exempt from federal taxation, but is taxable under our state corporate business tax. At the administrative level, the banks had claimed that the state’s different tax treatment of federally tax exempt bonds, such as municipal bonds, versus federally taxable bonds, such as corporate bonds, discriminated against holders of the former as against holders of the latter in violation of the equal protection clauses of the state and federal constitutions. We refer herein to this claim as the FDIC’s equal protection theory. Thus, the tax dispute arising out of the question of the validity of the banks’ equal protection theory was whether the banks had overstated their deductions against an aspect of their gross income, namely, municipal bond income, thereby understating their net income for purposes of the corporation business tax.

The FDIC's appeals in both cases were stayed pending the outcome of D.A. Pincus & Co. v. Meehan, supra, 235 Conn. 865. On January 30, 1996, this court released its decision in D.A. Pincus & Co., rejecting the equal protection theory.

Thereafter, the FDIC, with the permission of the trial court, Maloney, J., amended its complaints in both the CBT and New England cases to add a new theory challenging the deficiency assessments. Under this new theory, the FDIC claimed that the fact that the state taxes interest income on federal bonds while exempting from taxation interest income from certain state and municipal bonds; see footnote 7 of this opinion and accompanying text; violated the borrowing clause and the supremacy clause of the United States constitution, and the doctrine of intergovernmental tax immunity as codified by 31 U.S.C. § 3124. We refer herein to this claim as the FDIC’s intergovernmental tax immunity theory.

Under the intergovernmental tax immunity theory, the FDIC claims that, with respect to the federal bond interest income, the banks paid an invalid tax. Thus, under this theory, the question would be whether the banks had overstated their gross income by the total amount of the interest income on their federal bonds. In other words, in the amended complaints, the FDIC claimed that the understatement, if any, of their municipal bond income, resulting from the unjustified deductions for the interest expenses related thereto, was offset by the alleged overstatement of their federal bond income. The amounts of the alleged overpayments of the tax by the banks are far greater than the deficiency assessments against both banks. In its amended complaints, however, the FDIC did not seek a full refund of those alleged overpayments. Instead, the FDIC sought only a refund of the amount of the deficiency assessments that the banks had paid under protest. After a joint trial, the trial court, McWeeny, J., dismissed the counts related to the intergovernmental tax immunity theory. The court reasoned that the failure of the banks to have filed an amended return and claim for a refund pursuant to § 12-225 (b) (1); see footnote 6 of this opinion; based on the intergovernmental theory, deprived the court of subject matter jurisdiction over those counts. This joint appeal followed.

The parties do not dispute that “a tax appeal pursuant to § 12-237 affords a taxpayer a trial de novo.” Schlumberger Technology Corp. v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987). The dispute between the parties relates to the scope and meaning of de novo review of the FDIC’s challenge under § 12-237 to the commissioner’s deficiency assessments. The FDIC claims that, by virtue of the de novo standard of review applied under § 12-237, the court had subject matter jurisdiction over the counts that were based on the intergovernmental theory. We agree.

There is no question, and the FDIC does not contend otherwise, that if it were seeking, based on the intergovernmental theory, a refund of the amounts of corporation business taxes that the banks allegedly had overpaid for the years in question, their failure to follow the procedures set forth in § 12-225 (b) (1) would deprive the court of subject matter jurisdiction over such a claim. Section 12-225 (b) (1) provides in relevant part: “Any company which fails to include in its return items of deduction or includes items of nontaxable income or makes any other error in such return may, within three years from the due date of the return, file with the commissioner an amended return, together with a claim for refund of taxes overpaid as shown by such amended return. Failure to file a claim within the time prescribed in this section constitutes a waiver of any demand against the state on account of overpayment. ...” Section 12-225 “establishes an administrative request for a refund as the prescribed avenue of relief that the [FDIC was] required to follow in order to take advantage of the state’s limited waiver of its sovereign immunity. 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). When an adequate administrative remedy exists at law, a litigant must exhaust it before the Superior Court will obtain jurisdiction over an independent action on the matter.” (Internal quotation marks omitted.) Owner-Operators Independent Drivers Assn. of America v. State, 209 Conn. 679, 686-87, 553 A.2d 1104 (1989). Thus, intertwined principles of sovereign immunity and exhaustion of administrative remedies would require that any claim for a refund of taxes allegedly overpaid, based on the intergovernmental theory, be preceded by a timely amended return and claim for such a refund pursuant to § 12-225. Id., 686.

In the present case, however, the FDIC does not claim such a refund. Instead, it seeks to regain the amounts paid under protest in response to the commissioner’s deficiency assessments. The more narrow question posed by this case, therefore, is whether the FDIC may utilize the same legal theory that would have underlain such a claim for a refund, not for the purpose of seeking a refund of the taxes that the banks paid, but in order to offset additional taxes in the form of deficiency assessments imposed by the commissioner. We conclude that the FDIC may do so.

First, our precedents on the scope of de novo review of tax determinations counsel that the court has jurisdiction over the FDIC’s claims based on the intergovernmental theory. In Schlumberger Technology Corp. v. Dubno, supra, 202 Conn. 421, we held that the de novo scope of review of a tax appeal from an administrative tax proceeding included a legal claim that “did not entirely track the discretionary nature of the petitions that [the plaintiff] had filed at the administrative level . . . .” Moreover, we referred to this inconsistency between the claim made at trial pursuant to § 12-237 and the claim made at the administrative level as a “procedural impropriety”; id., 421-22; rather than a defect of subject matter jurisdictional dimension.

In Konover v. West Hartford, 242 Conn. 727, 734-35, 699 A.2d 158 (1997), we addressed the scope and meaning of de novo review in a municipal property tax appeal under General Statutes § 12-117a. The property owner had appealed from the assessment of the municipal board of tax review to the trial court claiming that he had been overassessed. Id., 729-30. At trial, the town introduced evidence indicating that a portion of the properly owner’s land inadvertently had been omitted in the original assessment and, therefore, the board of tax review was not aware of the actual area of the land. Id., 731-33. This evidence would have suggested an original underassessment by the town that would have offset the overassessment claimed by the property owner. The trial court, however, in determining the fair market value of the property, declined to consider this evidence because it had not been presented to the board of tax review. Id., 734.

We reversed the trial court’s judgment, however, concluding that “[t]he scope of atrial court’s subject matter jurisdiction in such an appeal must encompass the power to consider any facts that are relevant to determining whether a taxpayer actually has been over-assessed.” Id., 741. We first discussed the well established principles of subject matter jurisdiction. “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. ... It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” (Internal quotation marks omitted.) Id., 740-41. We also explained that “[i]n a de novo proceeding, the trier of fact makes an independent determination of the matters on which the appeal was taken without regard for the action or decision of the lower tribunal.” Id., 741. This conclusion was not altered by the fact that the particular evidence of underassessment had not been presented to the board of tax review. Id., 742.

Thus, the reasoning of Schlumberger Technology Corp. and Konover rested on two related factors, namely, that in de novo tax appeals under § 12-117a and § 12-237: (1) the court’s subject matter jurisdiction includes the power to consider all factors relevant to the determination of the tax liability in question; and (2) that consideration is independent of the action or decision at the administrative tribunal. We conclude that this reasoning governs the present case as well.

In this case, the judicial determination of the FDIC’s tax liability involved the question of whether it owed additional amounts of the corporation business tax for the years in question, over and above what already had been paid regarding that tax. The trial court’s subject matter jurisdiction under § 12-237 included the power to consider all factors relevant to the determination of that additional tax liability. Although the legal basis of the FDIC’s claims for refunds of the deficiency assessments differed from the bases of the assessments and from what it claimed at the administrative level, the ultimate question presented to the trial court was, nevertheless, whether the FDIC owed an additional amount of its corporation business tax. In addition, the court was required to arrive at that judicial determination independently of the action or decision of the administrative tribunal from which the tax appeal was taken. De novo review in this context means, therefore, that the trial court was not confined to the particular legal theory underlying the resistance to the deficiency assessments that was asserted administratively.

Second, the trial court was “[v]ested with full power, under § 12-237, to ‘grant such relief as may be equitable’ . . . .” Schlumberger Technology Corp. v. Dubno, supra, 202 Conn. 422. Section 12-225 (b) (1) provides that if a company “includes items of nontaxable income or makes any other error in [its] return [it is required], within three years from the due date of the return, [to] file with the commissioner an amended return, together with a claim for refund of taxes overpaid as shown by such amended return . . . [and that the] [¶] allure to [do so] constitutes a waiver of any demand against the state on account of overpayment. ...” Thus, § 12-225 (b) (1) provides the requisite administrative procedure for “a claim for refund of taxes overpaid . ...” In the present case, however, the FDIC does not seek such refunds. It seeks only the additional corporate business taxes involved in the deficiency assessments. Therefore, although the banks, by not timely following the provisions of § 12-225 (b) (1), forfeited their right to seek refunds, based on the intergovernmental theory, of the allegedly unjustified taxes that they voluntarily had paid, it is consistent with principles of equity to permit them to avail themselves of that theory, if valid, to regain the additional taxes imposed by the deficiency assessments that they had paid under protest.

Finally, we see no difference between the language of the tax appeal statute involved in Konover and § 12-237. Section 12-117a empowers the trial court to hear and determine appeals taken by taxpayers “aggrieved by the action of the board of tax review . . . [and] to grant such relief as to justice and equity appertains . . . .” In similar- fashion, § 12-237 empowers the trial court to hear and determine appeals taken by taxpayers “aggrieved because of any order, decision, determination or disallowance of the Commissioner . . . [and to] grant such relief as may be equitable . . . .” Although the language of the two statutes is not identical, we perceive no textual reason why the scope and meaning of the de novo tax appeal under § 12-117a explicated in Konover should not apply equally to a de novo tax appeal under § 12-237.

The commissioner argues that the intergovernmental tax immunity theory properly could have been raised only by filing an amended tax return pursuant to § 12-225 (b) (1). According to the commissioner, the trial court had no subject matter jurisdiction because the absence of amended returns represents a failure to exhaust those administrative remedies upon which the waiver of sovereign immunity is predicated.

For this proposition, the commissioner relies on our decision in Owner-Operators Independent Drivers Assn. of America v. State, supra, 209 Conn. 680, in which the plaintiffs sought to recover taxes paid for fuel identification decals by an independent plenary action without first pursuing statutorily provided administrative remedies. We concluded in that case that recourse to the available administrative remedies was a prerequisite to the statutory waiver of sovereign immunity and, therefore, to the trial court’s jurisdiction, and we affirmed the dismissal by the trial court. Id., 690.

The commissioner’s reliance on Owner-Operators Independent Drivers Assn. of America, is misplaced for two reasons. First, in the present case, the FDIC’s failure to file amended returns did not represent a failure to exhaust the administrative remedies provided by § 12-225 (b) (1) because, as we have explained, the FDIC did not seek tax refunds. Contrary to the commissioner’s suggestion, the difference between seeking a refund of taxes voluntarily paid and seeking to regain amounts paid under protest pursuant to a deficiency assessment over and above that payment, is not a “linguistic sleight of hand.” Although they both may rest on the same legal theory, the relief sought under each would be different. The administrative procedure provided for by § 12-225 (b) (1) applies only to the former, and not the latter.

Second, unlike the plaintiffs in Owner-Operators Independent Drivers Assn. of America, the banks in the present case did pursue the available administrative remedies for challenging a deficiency assessment, and the appeals were filed in the trial court pursuant to statute. The banks followed the provisions of § 12-236, and the commissioner does not claim otherwise, albeit they did not raise the intergovernmental theory in those administrative proceedings. Section 12-237 provides for an appeal after “any order, decision, determination or disallowance of the Commissioner . . . .” The commissioner issued “orders” assessing deficiencies and made “determinations” not to return the protested payments.

The commissioner also argues, in reliance on Altray Co. v. Groppo, 224 Conn. 426, 440, 619 A.2d 443 (1993), that the “plenary review that the statutes authorize for tax appeals; Kimberly-Clark Corporations. Dubno, 204 Conn. 137, 144-45, 527 A.2d 679 (1987); presupposes an underlying administrative determination of fact.” Therefore, the commissioner asserts, consideration of the intergovernmental theory “would not have been a de novo review; it would have constituted an initial determination of a tax assessment, the authority for which has been vested by the legislature in the commissioner, not the courts.”

It is true that, in Altray Co. v. Groppo, supra, 224 Conn. 440, in which we reversed the trial court’s judgment rejecting the taxpayer’s claim for a refund, we noted in framing the remand that the record did not reflect the required administrative factual determination of the amount of the refund claimed, and that, therefore, a “remand to the commissioner is the appropriate course in the absence of such an administrative determination.” The tax appeal under § 12-237 in Altray Co., however, was from the commissioner’s disallowance of the taxpayer’s amended return and claim for refund, pursuant to § 12-225 (b) (1), and in such an administrative proceeding the statute specifically provides that in his disallowance the commissioner shall set forth his “findings of fact and the basis of disallowance . . . .” We already have discussed why, in our view, this proceeding is not governed by § 12-225 (b) (1).

The judgments dismissing the counts in each complaint for lack of subject matter jurisdiction are reversed and the cases are remanded for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 12-237 provides: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the Commissioner of Revenue Services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford, which shall be accompanied by a citation to the Commissioner of Revenue Services to appear before said court. Such citation shall be signed by the same authority, and such appeal shall be returnable at the same time and served and returned in the same manner, as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut, with surety to prosecute Hie appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. Said comt may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the Treasurer to pay the amount of such relief, with interest at the rate of eight per cent per annum, to the aggrieved taxpayer. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands; and, upon all such appeals which may be denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       On January 6,1991, the United States Comptroller of the Currency, acting pursuant to 12 U.S.C. § 191, declared Connecticut Bank and Trust Company, N.A., insolvent and, pursuant to 12 U.S.C. § 1821 (c) (2), appointed the FDIC as its receiver. The FDIC, pursuant to 12 U.S.C. § 1821 (n), caused a new nationally chartered banking association to be created, namely, New Connecticut Bank and Trust Company, N.A. On July 13, 1991, the Comptroller, pursuant to 12 U.S.C. § 1821 (n) (12) and (c) (2), appointed the FDIC as receiver of New Connecticut Bank and Trust Company, N.A. As receiver, the FDIC succeeded to all assets and liabilities of that bank by operation of law, including the claim for the return of protested tax payments that has become the subject of the present case. We refer herein to both Connecticut Bank and Trust Company, N.A., and New Connecticut Bank and Trust Company, N.A., as CBT.
      On May 21, 1993, in Shulansky v. New England Savings Bank, Superior Court, judicial district of New London, Docket No. CV930526879S (May 21, 1993), the FDIC was appointed receiver of New England and was ordered to wind up its business affairs. The FDIC, pursuant to 12 U.S.C. § 1812 (c) (3) (A), executed an acceptance of the appointment as receiver. As receiver, the FDIC succeeded to all assets and liabilities of New England by operation of law, including the claim for the return of protested tax payments that has become the subject of the present case.
      For the sake of simplicity, we refer herein to the FDIC as the party that filed the two tax appeals in the trial court. We refer herein to CBT and New England collectively as the banks.
      Pursuant to Practice Book § 63-4 (4), the FDIC filed a joint appeal from the judgments of the trial court to the Appellate Court, and we transferred the joint appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       In the CBT case, the trial court rendered judgment on the merits in favor of the defendant, the commissioner of revenue services, as to the first, second and t hird counts of the amended complaint, and dismissed the fourth, fifth and sixth counts. In the New England case, the trial court rendered judgment on the merits in favor of the defendant, the commissioner of revenue services, as to the first count of the amended complaint, and dismissed tire second, third and fourth counts. The FDIC does not challenge the respective judgments on the merits. Thus, only the propriety of the trial court's dismissals of the respective counts in the two amended complaints is involved in this appeal.

       General Statutes § 12-233 provides: “The commissioner shall, (1) in the case of a return on which an operating loss is not reported, within three years after the due date for the filing of such return or within three years after the date on which such return was received by him, whichever period expires later, or (2) in the case of a return on which an operating loss is reported, within three years after the due date or the date of receipt by the commissioner, whichever period expires later, of the return on which a carry-over of such loss is fully utilized or deemed fully utilized because such loss is not available for deduction in any subsequent income year, examine it and, in case any error is disclosed by such examination, shall, within thirty days after such disclosure, notify the taxpayer thereof. When it appears that any part of the deficiency for which a deficiency assessment is made is due to negligence or intentional disregard of the provisions of this part or regulations promulgated thereunder, there shall be imposed a penalty equal to ten per cent of the amount of such deficiency assessment, or fifty dollars, whichever is greater. When it appeal’s that any part of the deficiency for which a deficiency assessment is made is due to fraud or intent to evade the provisions of this part or regulations promulgated thereunder, there shall be imposed a penalty equal to twenty-five per cent of the amount of such deficiency assessment. No taxpayer shall be subject to more than one penalty under this section in relation to the same tax period. Any decision rendered by any federal court holding that a taxpayer has filed a fraudulent return with the Director of Internal Revenue shall subject the taxpayer to the penalty imposed by this section without the necessity of further proof thereof, except when it can be shown that the return to the state so differed from the return to the federal government as to afford a reasonable presumption that the attempt to defraud did not extend to the return to the state. Within thirty days of the mailing of such notice, the taxpayer shall pay to the commissioner, in cash or by check, draft or money order drawn to the order of the Commissioner of Revenue Services, any additional amount of tax shown to be due by the corrected return or shall be paid by the State Treasurer, upon order of the Comptroller, any amount shown to be due it by such corrected return. The failure of the taxpayer to receive any timely mailed notice required by this section shall not relieve him of the obligation to pay the tax assessed under the terms of this part or any interest or penalties thereon. When, before the expiration of the time prescribed in this section for the examination of the return or the assessment of the tax, both the commissioner and the taxpayer have consented in writing to such examination or assessment after such time, the return may be examined and the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. The commissioner may also in such a case waive the statute of limitations against a claim for refund by such taxpayer.”

       General Statutes § 12-236 provides: “Any taxpayer, aggrieved by the action of the commissioner or his authorized agent in fixing the amount of any tax, penalty or interest provided for by this part, may apply to the commissioner, in writing, within sixty days after the notice of such action is delivered or mailed to it, for a hearing and a correction of the amount of the tax, penalty or interest so fixed, setting forth the reasons why such hearing should be granted and the amount in which such tax, penalty or interest should be reduced. The commissioner shall promptly consider each such application and may grant or deny the hearing requested. If the hearing is denied, the applicant shall be notified thereof forthwith. If it is granted, the commissioner shall notify the applicant of the time and place fixed for such hearing. After such hearing the commissioner may make such order in the premises as appears to him just and lawful and shall furnish a copy of such order to the applicant. The commissioner may, by notice in writing, at any time within three years after the date when any return of any taxpayer has been due, order a hearing on his own initiative and require the taxpayer or any other individual whom he believes to be in possession of relevant information concerning the taxpayer to appear before him or his authorized agent with any specified books of account, papers or other documents, for examination under oath.”

       General Statutes § 12-225 (b) (1) provides: “Any company which fails to include in its return items of deductions or includes items of nontaxable income or makes any other error in such return may, within three years from the due date of the return, file with the commissioner an amended return, together with a claim for refund of taxes overpaid as shown by such amended return. Failure to file a claim within the time prescribed in this section constitutes a waiver of any demand against the state on account of overpayment. The commissioner shall, within one hundred eighty days of the receipt of such claim, determine whether such claim is valid and, if so, the commissioner shall notify the State Comptroller of the amount of such refund and the State Comptroller shall draw an order on the State Treasurer in the amount thereof for payment to such company. If the commissioner determines that such claim is not valid, either in whole or in part, he shall mail notice of the proposed disallowance in whole or in part of the claim to the company which notice shall set forth briefly the commissioner’s findings of fact and the basis of disallowance in each case decided in whole or in part adversely to the claimant. Sixty days after the date on which it is mailed, a notice of proposed disallowance shall constitute a final disallowance except only for such amount as to which the company has filed, as provided in subdivision (2) of this subsection, a written protest with the commissioner. For the purposes of computing any refund due or adjusting net income as a result of the inclusion of income, the taxation of which by the state of Connecticut is prohibited by federal law, including the Constitution of the United States, as applied, no expenses related to such income shall be deducted in computing net income under this chapter.”

       These bonds included the following: Municipal Housing Finance Assistance Bonds, issued pursuant to chapter 137a of the General Statutes, exempt pursuant to General Statutes § 8-312; Bradley Bonds, issued pursuant to General Statutes §§ 15-101k through 15-101p, exempt pursuant to General Statutes § 15-101o (a); Connecticut Higher Education Supplemental Loan Authority Bonds, issued pursuant to chapter 187b of the General Statutes, exempt pursuant to General Statutes § 10a-236; Infrastructure Bonds, issued pursuant to General Statutes §§ 13b-74 through 13b-77, exempt pursuant to General Statutes § 13b-77 (a); and Municipal Resource Recovery Bonds, issued pursuant to chapter 103b of the General Statutes, exempt pursuant to General Statutes § 7-273mm (a).
      In 1995, the state repealed the corporation business tax exemptions for the interest on these bonds. See General Statutes c. 208b. The repeal does not affect the tax years in question in the present case.

       Presumably, the difference between the amount of this payment, and of all other payments discussed herein, and the amounts claimed by the commissioner pursuant to the audits, is accounted for by the amounts of interest accumulated since the tax years in question.

       Thereafter, the FDIC was substituted as the plaintiff. See footnote 2 of this opinion.

       Under General Statutes § 12-217 (a) (1) (A), only items that are deductible under federal income tax law are deductible under the state corporate business tax. The federal government does not tax the income on municipal bonds and, therefore, does not recognize deductions for expenses incurred in connection with such bonds. Unlike the federal government, however, Connecticut does tax at least some municipal bonds. Therefore, under the state corporation business tax, there is no deduction for expenses incurred in connection with municipal bonds.

       U.S. Const., art. I, § 8.

       U.S. Const., art. VI, cl. 2.

       The FDIC offered evidence at trial that CBT had paid at least $12,173,443 in taxes on income from the interest on federal obligations for the tax years from 1983 through 1987, and that New England had paid at least $186,093 in taxes for the tax year 1986.

       General Statutes § 12-117a provides: “Any person, including any lessee of real property whose lease has been recorded as provided in section 47-19 and who is bound under the terms of his lease to pay real property taxes, claiming to be aggrieved by the action of the board of tax review or the board of assessment appeals, as the case may be, in any town or city may, within two months from the date of the mailing of notice of such action, make application, in the nature of an appeal therefrom, with respect to the assessment list for the assessment year commencing October 1, 1989, October 1, 1990, October 1, 1991, October 1, 1992, October 1, 1993, October 1, 1994, or October 1, 1995, and with respect to the assessment list for assessment years thereafter, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the applicant a bond or recognizance to such town or city, with surety, to prosecute the application to effect and to comply with and conform to the orders and decrees of the court in the premises. Any such application shall be a preferred case, to be heard, unless good cause appears to the contrary, at the first session, by the court or by a committee appointed by the court. The pendency of such application shall not suspend an action by such town or city to collect not more than seventy-five per cent of the tax so assessed or not more than ninety per cent of such tax with respect to any real property for which the assessed value is five hundred thousand dollars or more, and upon which such appeal is taken. If, during the pendency of such appeal, a new assessment year begins, the applicant may amend his application as to any matter therein, including an appeal for such new year, which is affected by the inception of such new year and such applicant need not appear before the board of tax review or board of assessment appeals, as the case may be, to make such amendment effective. The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable, and, if the application appears to have been made without probable cause, may tax double or triple costs, as the case appears to demand; and, upon all such applications, costs may be taxed at the discretion of the court. If the assessment made by the board of tax review or board of assessment appeals, as the case may be, is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and any costs awarded by the court, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and any costs awarded by the court. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and any costs awarded by the court. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”

       The commissioner does not claim, and the trial court did not decide, that the failure of the banks to raise the intergovernmental theory pursuant to § 12-236 deprived the trial court of subject matter jurisdiction over the FDIC’s claims. The commissioner claims only, and the trial court solely decided, that the failure of the banks to file amended returns and claims for refunds pursuant to § 12-225 (b) (1) had that effect.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TIMOTHY SHASHATY
    (SC 16088)
    Borden, Norcott, Katz, Sullivan and Peters, Js.

      Argued September 28
    officially released December 28, 1999

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Debra Collins, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Timothy Shashaty, was charged by a substitute information with escape in the first degree in violation of General Statutes § 53a-169 (a) (l), and interfering with an officer in violation of General Statutes § 53a-167a (a). The state alleged that the defendant had escaped from a correctional institution and interfered with a police officer who had helped return him to custody. Before trial, the court granted the defendant’s request to represent himself. Thereafter, the trial court granted the defendant’s motion for standby counsel. On the day before voir dire was to begin, the court informed the defendant that he would remain shackled during jury selection and trial. After a jury trial that began on November 19,1997, and ended on December 22, 1997, the jury returned a verdict of not guilty of escape in the first degree and guilty of interfering with an officer. The court rendered judgment in accordance with the jury’s verdict. The defendant appealed from the judgment of conviction to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

The jury reasonably could have found the following facts. On October 12,1996, the defendant was incarcerated at the Brooklyn Correctional Institution. At approximately 7:30 p.m. on that date, the defendant fled from the prison by scaling two fences topped with razor wire. Connecticut State Trooper Eric Dency was dispatched to the prison in response. On his way to the prison, Dency saw the defendant walking on the eastbound side of Route 6 with a blood soaked sweatshirt wrapped around one of his hands. Dency pulled over to the side of the road, exited his cruiser, told the defendant that he was under arrest and ordered him to the ground. The defendant resisted being handcuffed and, while Dency was attempting to pat him down, the defendant pushed Dency away and began to run. Dency eventually caught the defendant and, with the help of two correction officers who subsequently had arrived at the scene, handcuffed the defendant. The defendant was then transported to a hospital for treatment and later was returned to the custody of the department of correction.

Although the defendant admitted at trial that he escaped from prison on October 12, 1996, and that he fled from a state trooper who confronted him during his escape, he raised the defenses of necessity and entrapment, upon which the jury was instructed. These defenses were based upon the defendant’s claims that he had been the victim of threats, retaliation and an assault by another inmate that had been instigated by various state officials associated with the judicial district of Ansonia-Milford. The defendant testified that certain state officials had been so embarrassed by the defendant’s prior successful pro se defense, in 1994, against a charge of sexual assault in the first degree, that they had initiated a campaign of retaliation and harassment directed at the defendant and his girlfriend.

The defendant claimed that such retaliation included: setting up him and his girlfriend for arrest on the charge for which he had been convicted and incarcerated when he fled from prison; having him assaulted by another inmate or inmates while he was incarcerated; ordering the destruction or alteration of documents that were favorable to his defense; interfering with his access to the Superior Court; and sending letters to him in prison, threatening him with physical harm and action against his girlfriend should he continue to seek legal redress for the wrongs that he attributed to various state employees. Additional facts will be provided as necessary.

On appeal, the defendant claims that his state and federal constitutional rights to a fair trial and self-representation were violated, requiring a reversal and dismissal of his conviction, or alternatively, a reversal of his conviction and a new trial. The defendant argues that his rights were violated because: (1) the trial court improperly restricted his ability to contact potential witnesses and an investigator while he was conducting his pro se defense; (2) the trial court improperly forced him to rely upon standby counsel to obtain legal research materials; (3) officials of the department of correction read and destroyed his legal materials; (4) the trial court effectively invalidated his waiver of counsel by denying him access to legal materials and confidential communication with witnesses and an investigator; and (5) the trial court abused its discretion in requiring him to remain in leg shackles during trial. We disagree with the defendant’s claims and affirm the judgment of the trial court.

I

CONTACT OF POTENTIAL WITNESSES AND AN INVESTIGATOR

The defendant asserts that his state and federal constitutional rights to self-representation and a fair trial were violated by the manner in which the trial court restricted his ability to contact potential witnesses and an investigator in preparation of his defense. The following additional facts are necessary to resolve this issue.

On December 18, 1996, approximately one month after the trial court granted the defendant the right to proceed pro se, the defendant moved for an order granting him the right to make legal telephone calls to “contact private investigators, witnesses, and [obtain] material need[ed] in preparation of [his] defense.” The court denied the motion. A similar motion was denied on May 6, 1997. On September 17, 1997, the defendant made a motion for standby counsel, which was granted the following day. On September 18,1997, the trial court ordered in the defendant’s mittimus that he be allowed to call standby counsel or an investigator. The next day, during the first day of jury selection, the trial court again ordered in the mittimus that the defendant be allowed to call standby counsel and an investigator, but refused to order that he be allowed to contact witnesses directly.

On October 16, 1997, still during voir dire, the trial court ordered in the mittimus that the defendant be provided with “[two telephone] calls of [a] legal nature per day . . . .” On December 5, 1997, the department of correction (department) moved to vacate or modify, inter alia, the foregoing order. On December 11, 1997, at a hearing to consider that motion, Glenn Marrus, a correctional counselor at the prison at which the defendant was incarcerated at the time of trial, testified in support of the motion. Marrus testified that, under department directives, each inmate is allowed two legal telephone calls per month, not including incoming telephone calls from an inmate’s attorney. Marrus testified that, since October 20, 1997, prison personnel had placed eighty-four telephone calls for the defendant. Marrus further testified that complying with the court’s order had caused him to neglect other duties, and that other inmates had begun to complain about the preferential treatment afforded the defendant.

In further support of its motion, the department offered to transfer the defendant to a correctional facility located near standby counsel and to allow the defendant nearly unlimited personal contact visits with standby counsel. In response to this offer, the defendant expressed concern over his ability to contact his private investigator directly if the court were to vacate its existing order. The defendant argued that requiring him to work through standby counsel in order to contact his private investigator, who was contacting witnesses on the defendant’s behalf, would violate his federal constitutional right to represent himself. The court rejected the defendant’s argument.

Counsel for the department responded to this discussion by stating that he did not realize that the defendant had been using his “legal [telephone] calls,” granted pursuant to the trial court’s order of October 16, 1997, to contact a private investigator. Department counsel further noted that he did not believe that such telephone calls were privileged. At no point, however, did the department state that it actually had recorded any such telephone calls.

The court agreed with the department that telephone calls to a private investigator from an inmate are not privileged and granted the department’s motion to vacate the order on the conditions that the department transfer the defendant to a facility located near standby counsel and that the defendant be allowed virtually unlimited private access to standby counsel. The court denied the defendant’s request to order department officials to ensure that the defendant be allowed direct contact with the private investigator if the investigator were to come and see the defendant in prison. The court found that it would be improper for it to “micromanage” the department, and that whether such contact would be allowed would be a matter to be resolved by the defendant and the department.

The defendant argues that the trial court violated his right to self-representation by restricting his ability to contact potential witnesses and an investigator. We distill three distinct arguments from the defendant’s brief in support of this claim. The defendant maintains that the court impaired his right to protect his trial strategy from disclosure to the state, interfered with his telephonic access to his investigator and improperly required him to rely on standby counsel for investigatory purposes.

A

The defendant broadly asserts that all incarcerated, pro se defendants have a state and federal constitutional right to contact witnesses and investigators in a manner that protects their trial strategy from disclosure to the state. The defendant did not clearly articulate this claim at trial, but seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Without deciding the hypothetical question as to whether all incarcerated, pro se defendants have such a right, we conclude that the defendant in this case has failed to demonstrate how the manner in which the trial court restricted his ability to contact witnesses and an investigator resulted in the disclosure of his trial strategy to the state. Under Golding, “the alleged constitutional violation [must] clearly [exist] and [must have] clearly deprived the defendant of a fair trial . . . .’’Id., 240. Thus, because the defendant has failed even to assert that his trial strategy was disclosed to the state, the constitutional violation does not clearly exist, and the defendant cannot prevail on this component of his claim. See id., 239-40.

B

The defendant also argues that the trial court violated his state and federal constitutional right to represent himself by vacating the order in the mittimus granting him the right to make unrecorded telephone calls to his investigator during his trial. We reject this argument.

We briefly summarize three relevant facts with respect to this claim. First, there was testimony, at a hearing to consider the department’s motion to vacate or modify, inter alia, the trial court’s prior order authorizing the defendant to call standby counsel and an investigator, that prison personnel had placed eighty-four telephone calls for the defendant over an approximately two month period, during which the defendant was able to have privileged contact with his investigator. Second, although the defendant argues that “[t]he trial court effectively held” that the defendant was required to rely on standby counsel to coordinate the investigation of the defendant’s case, there is nothing in the record to suggest that the defendant’s private investigator was prevented from personally visiting the defendant in prison. Third, although the defendant raises in his brief a number of potential problems that might arise from requiring an incarcerated, pro se defendant to rely on standby counsel to contact an investigator, the record in this case does not reveal that the defendant’s right to self-representation was hindered as a result of the trial court’s ruling.

There is no legal support for the proposition that a defendant’s right to self-representation is violated under such circumstances. Rather, the record must show that the defendant has been deprived of the “organization and content of his own defense . . . .” McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). The record does not indicate how the trial court’s decision to grant the department’s motion to vacate the order granting the defendant privileged telephonic access to his investigator impaired the defendant’s control over his defense. Therefore, we conclude that the trial court’s decision to vacate its prior order did not violate the defendant’s right to self-representation.

C

Finally, the defendant argues that “[t]he trial court violated [his] right to represent himself by forcing him to rely on [standby counsel], mid-trial, to contact witnesses and coordinate [the] investigation of his case.” We reject this argument as well.

We briefly summarize the facts relevant to this claim. In contrast to telephonic access to an investigator, the record does not reveal that the defendant ever was granted privileged telephonic access to potential witnesses. Nor does the record indicate that the defendant ever asked the trial court for privileged telephonic contact with any named witnesses. Finally, the court’s decision to vacate its prior order granting the defendant privileged telephonic contact with an investigator did not necessarily cause him to “rely on [standby counsel], mid-trial, to contact witnesses . ...” As stated previously in this opinion, there is nothing in the record to suggest that the defendant’s private investigator, who allegedly was contacting witnesses, was prevented from personally visiting the defendant in prison.

The defendant conceded at oral argument before this court that he does not have a constitutional right, while incarcerated, to make unlimited telephone calls to anyone he claims to be a potential witness. Instead, the defendant argued that his right to self-representation requires that a trial court, sua sponte, instruct the defendant to develop a list of potential witnesses to be telephoned so that the court can rule on the appropriateness of each request. We find no support for such a proposition.

The defendant’s constitutional right to self-representation requires that he have “actual control over the case he chooses to present to the jury.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 855, 661 A.2d 539 (1995), quoting McKaskle v. Wiggins, supra, 465 U.S. 178. We fail to see how a constitutional requirement that a trial court instruct the defendant to develop a list of potential witnesses to be telephoned is consistent with preserving the defendant’s “ ‘actual control’ ” over the case. State v. Day, supra, 855. Rather, “although [a defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of that respect for the individual which is the lifeblood of the law.” (Internal quotation marks omitted.) Id., 821. Therefore, the defendant’s right to self-representation was not violated by the trial court’s refusal to grant him privileged telephonic access to potential witnesses.

II

OBTAINING LEGAL RESEARCH MATERIALS

The defendant next claims that the trial court violated his state constitutional right to represent himself by forcing him to rely on standby counsel to obtain legal research materials. The following additional facts are necessary to resolve this claim.

On July 16, 1997, the trial court ordered that the defendant’s “mittimus should indicate that he is to be provided reasonable access to law materials and law library.” On July 24, 1997, the trial judge noted that he “had previously ordered that [the defendant] be provided reasonable access to a law library. I’m clarifying that to say that he’s to be provided reasonable access to the law research center, which is the facility available to him.” On December 11,1997, at a hearing to contest, inter alia, that “the defendant be given access to the resource area ... on a more frequent basis than any other inmate,” Marrus testified that the defendant made use of the law research center twelve times. The trial court noted at the December 11, 1997 hearing that, on “the type of issues in the trial itself . . . there’s been plenty of time to prepare.” The court then stated: “I’m going to rescind all of the orders and . . . accept the [department’s] offer that [standby counsel] be given unlimited access [to you] and that you do research that way.”

The transcript does not reveal that the defendant objected to the trial court’s requirement that, from that point in the trial forward, he conduct his legal research through standby counsel. Thus, as the defendant did not clearly articulate this claim at trial, he seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. For reasons we discuss hereinafter, however, we hold that the trial court’s use of standby counsel to ensure that the defendant had access to legal materials did not violate the defendant’s right to self-representation under the state constitution.

It is clear that the defendant’s federal constitutional right to self-representation was not violated by the trial court’s use of standby counsel to provide the defendant with access to legal materials. In Spates v. Manson, 644 F.2d 80 (2d Cir. 1981), the court concluded: “[T]he right to represent oneself in criminal proceedings is protected by the Sixth Amendment .... But this right does not carry with it a right to state-financed library resources where state-financed legal assistance is available.” (Citation omitted.) Id., 85. The court suggested that standby attorneys could be used to provide pro se defendants with legal assistance and that this assistance is adequate under the federal constitution. See id., 84-85.

As we stated previously in this opinion, we generally have interpreted the state and federal constitutions as providing essentially equivalent protections with respect to a defendant’s right to self-representation. See footnote 9 of this opinion. For example, in State v. Day, supra, 233 Conn. 813, a case in which the defendant’s right to self-representation under both the state and federal constitutions was at issue; see id., 823; we considered the role of standby counsel “within the general constitutional landscape”; id., 853; and did not perform a separate analysis of the defendant’s right to self-representation under the state constitution as distinct from his federal constitutional right. See generally id., 820-30. Likewise, in this case, we consider the defendant’s right to self-representation under both the state and federal constitutions to be equivalent.

Furthermore, Spates is consistent with our conclusion in Day that an active role for standby counsel does not necessarily violate a pro se defendant’s right to self-representation. Id., 854. In Day, we noted that “[n]o absolute bar on standby counsel’s unsolicited participation is appropriate .... [T]he primary focus must be on whether the defendant [has] a fair chance to present his case in his own way.” (Internal quotation marks omitted.) Id., 854-55, quoting McKaskle v. Wiggins, supra, 465 U.S. 176-77.

In this case, the trial court’s decision to require the defendant to rely on standby counsel for access to legal materials during part of the trial did not deprive the defendant of his “ ‘fair chance to present his case in his own way.’ ” State v. Day, supra, 233 Conn. 855. Therefore, no constitutional violation clearly exists; State v. Golding, supra, 213 Conn. 240; and the defendant cannot prevail on his second claim.

Ill

REVIEW AND DESTRUCTION OF THE DEFENDANT’S LEGAL MATERIALS

The defendant next claims that “the review and destruction of his legal materials, mid-trial, by the [department violated his state and federal constitutional rights to a fair trial.” Specifically, the defendant claims that three pieces of evidence, “which at one point in the case seemed to have existed,” vanished while in the custody of the state or the department: (1) an envelope allegedly containing evidence of threats from state officials that the defendant claims had disappeared when he was transferred, midtrial, between correctional facilities; (2) a letter from the office of the state’s attorney in the judicial district of Ansonia-Milford to the office of the state’s attorney in the judicial district of Windham requesting copies of documents in the defendant’s file; and (3) several envelopes that the defendant allegedly had with him when he was arrested after fleeing from prison. The state contested the existence of any of these alleged pieces of evidence.

As evidenced by the following examples, the trial court was not persuaded that such evidence had ever existed. In addressing the defendant concerning the alleged missing envelope containing threatening letters, the court stated: “Well, I understood what you said but there’s been no evidence other than your own statement.” In addressing the defendant concerning the alleged correspondence between the two state’s attorney’s offices, the court stated: “I know what you claim. I am telling [the prosecuting state’s attorney that] if there is any fax from Windham to Milford or from Milford to Windham concerning you to produce it. . . . If they say there is none, there’s nothing more I can do.” Finally, in response to the defendant’s allegations of missing envelopes that were seized from him at the time of his arrest, the court stated: “I do not think there is a threshold showing of destruction of evidence.”

In the absence of any basis for finding that any state official reviewed or destroyed the defendant’s evidence, the defendant’s claim relating to missing evidence is unreviewable. The defendant’s reliance on his own testimony that such review and destruction did occur and the limited evidence he presented to prove these facts are insufficient to sustain his constitutional challenge. “Ordinarily it is not the function of this court or the Appellate Court to make factual findings, but rather to decide whether the decision of the trial court was clearly erroneous in light of the evidence and pleadings in the whole record. . . . Conclusions of fact may be drawn on appeal only where the subordinate facts found [by the trial court] make such a conclusion inevitable as a matter of law ... or where the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision.” (Citations omitted; internal quotation marks omitted.) State v. Reagan, 209 Conn. 1, 8-9, 546 A.2d 839 (1988). We cannot say, from a review of the record, that the subordinate facts presented by the defendant require the conclusion that, as a matter of law, such review and destruction of his legal documents occurred. Therefore, the defendant’s claim fails because there is no factual basis for it. See State v. Satchwell, 244 Conn. 547, 562, 710 A.2d 1348 (1998) (claims that lack findings of fact in record are unreviewable).

IV

CONDITIONAL WAIVER OF COUNSEL

The defendant next claims that his waiver of counsel was conditioned on his right to have unrecorded telephonic access to an investigator and witnesses and access to legal materials necessary to prepare his defense. This claim is unreviewable because there is no evidence in the record that the defendant’s waiver was conditioned on any of the aforementioned items. See id. Thus, we decline to consider the hypothetical question posed by the defendant concerning whether a defendant’s waiver of counsel properly may be conditioned on access to witnesses, an investigator or legal materials.

V

SHACKLING ORDER

The defendant’s final claim is that the trial court abused its discretion by requiring him to remain in leg shackles during trial in violation of his state and federal constitutional rights to self-representation and a fair trial. The following additional facts are necessary to resolve this issue.

On September 18, 1997, the day before voir dire began, the trial court warned the defendant that he would remain in leg shackles during jury selection and trial, but that the courtroom would be rearranged to prevent the jury from seeing them. The defendant took exception to wearing the shackles dining trial. At the time the trial court made the shackling order, there was evidence in the record that the defendant was on trial for escape from a correctional institution. In addition, when the defendant allegedly escaped from prison, he had been incarcerated for failure to appear in court on a previous charge.

Voir dire began on September 19, 1997. After the defendant asked the first venireperson whether the presence of shackles on the defendant would affect the venireperson’s impartiality, the court again informed the defendant that it was willing to make every effort to ensure that the jury could not see the defendant’s shackles. The court also noted that the defendant had a right to voir dire each potential juror on the effect of leg shackles. The court noted, however, that, if the defendant, himself, was going to inform the jury of the shackles, the court was not going to try and hide from the jury the fact that the defendant was shackled. Upon the resumption of voir dire, the defendant continued to ask each venireperson if the presence of shackles would affect his or her impartiality. It appears that the defendant remained shackled throughout the proceedings.

The defendant filed a posttrial motion on November 2, 1998, asking the trial court to articulate the basis for its shackling order. On November 12, 1998, the state filed a response to the defendant’s motion for articulation, in which tire state claimed that it had proffered a report, during an off-the-record chambers conference, detailing an incident in which the defendant, while incarcerated on a previous charge, “physically restrained a nurse and repeatedly threatened her with a pair of scissors.” The state claimed that the defendant’s standby counsel was present at that conference, but there is no suggestion in the record that the defendant attended the conference. In its articulation, which was filed November 16,1998, the court noted that it believed leg restraints were necessary because the defendant was on trial for escape after having been convicted of failure to appear, and that both the sheriffs and correction officials regarded the defendant as “high risk.” Subsequently, on November 23, 1998, the defendant filed a motion for rectification to confirm whether a chambers conference on the shackling issue had occurred. The trial court responded on December 2, 1998, with an order that provided: “While such a conference probably took place, the court ... did not base its decision on shackling ... on such a conference.”

The defendant argues that the trial court violated his state and federal constitutional rights to self-representation and a fair trial by requiring him to remain in leg shackles during the trial. The state argues, inter alia, that this claim is unreviewable because, by informing the jury that he was wearing shackles, the defendant himself caused the harm of which he now complains. We do not agree that the defendant waived this claim.

“We have long held that a party cannot ordinarily claim error in the action of the trial court which he [or she] has induced.” (Internal quotation marks omitted.) State v. Sirimanochanh, 224 Conn. 656, 663, 620 A.2d 761 (1993). The defendant in this case, however, did not induce the trial court, through his own actions taken before the court, to order him to wear the shackles. Thus, the defendant’s decision to alert jurors to the fact that he was wearing shackles cannot serve to waive his claim that the shackling order violated his constitutional rights. Thus, the cases cited by the state in its brief, such as State v. Kenney, 53 Conn. App. 305, 327, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999), and State v. Edge, 47 Conn. App. 743, 748-49, 707 A.2d 1271, cert. denied, 244 Conn. 919, 714 A.2d 7 (1998), are inapposite because the defendant in each of those cases instigated the legal action that was the source of the harm of which he subsequently complained. See, e.g., id., 748 (where defendant made and argued for motion for judgment of acquittal in front of jury, court’s denial of that motion in jury’s presence did not constitute ground for constitutional challenge). In contrast, the trial court’s decision in this case to order that the defendant remain shackled was not instigated by any legal action taken by the defendant; rather, the court’s decision preceded it. Therefore, because the defendant’s decision concerning how best to respond to the court’s shackling order cannot serve as the basis for a waiver of his claim, his claim is reviewable.

Both parties recognize that “[t]he standard under which we review [the] claim made by the defendant is whether the trial court abused its sound discretion in refusing to order the restraints removed State v. Williams, 195 Conn. 1, 8, 485 A.2d 570 (1985). “The trial court’s discretion on the issue of shackling is broad.” (Internal quotation marks omitted.) State v. Woolcock, 201 Conn. 605, 615, 518 A.2d 1377 (1986). Practice Book § 42-46 (a) provides in relevant part that “[reasonable means of restraint may be employed if the judicial authority finds such restraint reasonably necessary to maintain order. . . ,” Moreover, “[a] trial judge has a duty to do what may be necessary to prevent escape . . . .” (Internal quotation marks omitted.) State v. Woolcock, supra, 614. Therefore, we hold that the trial court did not abuse its discretion in ordering the defendant, who was on trial for escaping from prison and who had been incarcerated on a failure to appear charge, to remain shackled during his trial. Thus, the defendant’s right to a fair trial was not violated by the trial court’s shackling order.

Furthermore, although the defendant argues that the trial court’s shackling order violated his right to self-representation, in addition to his right to a fair trial, the defendant’s decision to proceed pro se does not vitiate the trial court’s ability to “employ a reasonable means of restraint upon a defendant if, exercising its broad discretion in such matters, the court finds that restraints are reasonably necessary under the circumstances.” (Internal quotation marks omitted.) State v. Tweedy, 219 Conn. 489, 505, 594 A.2d 906 (1991). In addition, there has been no showing that the shackles denied the defendant “actual control over the case he [chose] to present to the jury.” (Internal quotation marks omitted.) State v. Day, supra, 233 Conn. 855. Therefore, the shackling order did not violate the defendant’s right to self-representation.

The defendant also contends that his constitutional rights to represent himself and to a fair trial were violated because the trial court failed, in violation of what is now Practice Book § 42-46, to place its reasons for the shackling order on the record when the order was made. Although the trial court placed its reasons on the record in a posttrial articulation, the defendant argues that this attempt by the trial court to cure its error was insufficient to eliminate the prejudice that he had suffered. The defendant argues, and we agree, that one of the reasons for requiring the trial court to place its reasons on the record is to allow the defendant the opportunity to respond to the trial court’s reasons for the shackling order. See State v. Tweedy, supra, 219 Conn. 507; State v. Woolcock, supra, 201 Conn. 616.

The defendant further argues that, although the trial court stated in its posttrial articulation that it relied upon information from the sheriffs and correction officials that the defendant was “high risk,” these officials never made a statement on the record as to the reasons for their assessment. Therefore, the defendant argues, he was never given a chance to respond to this information. Indeed, from our review of the record, it does not appear that the defendant was given an opportunity to respond to any information offered by the sheriffs or correction officials before the trial court ordered him to remain shackled during trial. Although the trial court may “consider other information not in evidence, including official records, information supplied by [correction] officers and attorneys, and facts generally known within the limits of its jurisdiction . . . [s]uch information or knowledge . . . should be placed on the record outside the presence of the jury and the defendant given the opportunity to respond to that information.” (Citations omitted; internal quotation marks omitted.) State v. Tweedy, supra, 219 Conn. 507.

Irrespective of the trial court’s failure to allow the defendant to respond to the sheriffs’ and correction officials’ determination that the defendant was “high risk,” however, the trial court placed ample reasons on the record to justify the shackling. In light of the fact that the defendant was being incarcerated on a failure to appear charge and was being tried for escape in the first degree, it would not have been an abuse of discretion for the trial court to order the defendant shackled, even in the absence of any information supplied by the sheriffs or correction officials. Therefore, the trial court’s failure to allow the defendant to respond to the sheriffs’ and correction officials’ information, even though improper, was harmless, and did not violate the defendant’s rights to self-representation or a fair trial.

Finally, the defendant argues that “[i]f the [shackling] order was affected by a chambers conference at which [the defendant] was not present, it is tainted by a per se violation” of his right to self-representation. The trial court, however, expressly stated in its order of December 2,1998, that it “did not base its decision on shackling . . . on such a conference.” Therefore, we need not consider whether it would be a violation of the defendant’s constitutional right to self-representation had the shackling order been affected by such a conference.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-169 (a) provides in relevant part: “A person is guilty of escape in the first degree (1) if he escapes from a correctional institution . . . .”

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       The sixth amendment, to the United States constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” The United States Supreme Court, has held that “the right to self-representation ... is thus necessarily implied by the structure of the [sixth amendment].” Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
      Article first, § 8, of the constitution of Connecticut, also guarantees the right to self-representation by providing: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel

       Although the defendant argues that the manner in which the trial court restricted his telephonic access to an investigator violated his right to a fair trial, as distinct from his right to self-representation, the defendant has failed to brief this claim. The defendant provides no legal analysis for his argument and cites no authorities to support it. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Dumas, 54 Conn. App. 780, 794, 739 A.2d 1251 (1999); see also Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). Therefore, we decline to review this portion of the defendant’s claim.

       The defendant’s jury selection, trial and sentencing took place over a four month period, from September, 1997, to January, 1998.

       The defendant concedes in his brief that the department did not record the calls that he had made to his investigator prior to the December 11, 1997 hearing.

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant acknowledges the hypothetical nature of his argument in his reply brief. In discussing the potential monitoring of his telephone calls by prison personnel, the defendant notes that, “[w]hile testimony and findings would be useful,” the issue “is not whether the [department actually interfered with his trial strategy, but the potential for abuse under the existing regulations.” (Emphasis added.) Golding, however, requires that the constitutional violation clearly exist. State v. Golding, supra, 213 Conn. 240. Therefore, the defendant cannot prevail under Golding on claims that merely involve the potential for abuse. See id.

       The defendant clearly articulated his federal constitutional claim before the trial court. He did not clearly articulate a state constitutional claim, however. Therefore, he now seeks to prevail under Golding. In order to prevail on astate constitutional challenge under Golding, “the alleged constitutional violation [must] clearly [exist] and [must have] clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 240. As the defendant acknowledges in his brief, we have “interpreted the federal and state constitution^] as providing essentially equivalent protections” with respect to a defendant’s right to self-representation. Cf. State v. Day, 233 Conn. 813, 820-21, 661 A.2d 539 (1995); State v. Townsend, 211 Conn. 215, 218 n.1, 558 A.2d 669 (1989). For reasons we discuss hereinafter, we conclude that the defendant’s federal constitutional right to self-representation was not violated. Therefore, no state constitutional violation clearly exists, and the defendant’s claim under the state constitution also must fail. See State v. Golding, supra, 240.

       The defendant clearly articulated this federal constitutional claim before the trial court. To the extent that the defendant intends to raise a state constitutional claim by writing in his brief that his “right to represent himself’ was violated, this claim fails for reasons identical to those provided in footnote 9 of this opinion.

       Practice Book § 42-46 provides: “(a) Reasonable means of restraint may be employed if the judicial authority finds such restraint reasonably necessary to maintain order. If restraints appear potentially necessary and the circumstances permit, the judicial authority may conduct an evidentiary hearing outside the presence of the jury before ordering such restraints. The judicial authority may rely on information other than that formally admitted into evidence. Such information shall be placed on the record outside the presence of the jury and the defendant given an opportunity to respond to it.
      “(b) In ordering the use of restraints or denying a request to remove them, Ute judicial authority shall detail its reasons on the record outside the presence of the jury. The nature and duration of the restraints employed shall be those reasonably necessary under the circumstances. All reasonable efforts shall be employed to conceal such restraints from the view of the jurors. Upon request, the judicial authority shall instruct the jurors that restraint is not to be considered in assessing the evidence or in the determination of the case.”

       Practice Book § 42-46 (b) provides in relevant part: “In ordering the use of restraints or denying a request to remove them, the judicial authority shall detail its reasons on the record outside the presence of the jury. . . .”

       A second reason for placing the trial court’s reasons on the record is to ensure that appellate review is possible. See State v. Tweedy, supra, 219 Conn. 506. In this case, the trial court’s posttrial articulation provides an adequate record for appellate review of the trial court’s reasons for the shackling order.