author: STREIT, Justice.

text:
    Mary EGGIMAN, Appellant, v. SELF-INSURED SERVICES CO., and R.H. Hummer, Jr., Inc., Appellees.
    No. 05-0246.
    Supreme Court of Iowa.
    July 28, 2006.

      Wallace L. Taylor, Cedar Rapids, for appellant.
    Larry G. Gutz and Brian J. Fagan of Moyer & Bergman, P.L.C., Cedar Rapids, for appellees.
   STREIT, Justice.

A woman suffering from clinical obesity alleges the company processing claims on behalf of her health insurance plan made misrepresentations that led her to obtain treatment not covered by the plan. Mary Eggiman filed the present action against her husband’s employer, R.H. Hummer, Jr., Inc., and Self-Insured Services Company (SISCO), the claims processor for the health insurance plan. Hummer and SIS-CO filed a motion for summary judgment. This motion argued the denial of benefits was proper because Eggiman failed to obtain pre-authorization for the surgery. The motion also argued the misrepresentation claim against SISCO was improper because SISCO was not a fiduciary under the Employee Retirement Income Security Act (ERISA). 29 U.S.C. §§ 1001, et seq. (2000). The district court found as a matter of law it was proper to deny benefits based on Eggiman’s failure to obtain pre-authorization. The court also concluded SISCO was not an ERISA fiduciary and therefore could not be found liable for any allegedly misleading statements made to Eggiman. The court of appeals affirmed the district court ruling. On further review, we vacate the decision of the court of appeals and reverse the portion of the district court order which found SISCO was not an ERISA fiduciary and therefore could not be liable for any misleading statements made to Eggiman.

I. Background Facts and Proceedings

Eggiman suffers from clinical obesity. In 2001, her physician recommended she consider gastric bypass surgery. Eggi-man is insured through her husband’s employer, R.H. Hummer, Jr., Inc., a trucking firm. Hummer utilized a self-insured health and medical plan (hereinafter “Hummer Health Plan”) as a benefit for its employees. The Hummer Health Plan is governed by a “plan document” detailing the benefits, rights, and privileges of covered individuals. In essence, the plan document explains when the plan will pay or reimburse all or a portion of covered expenses. SISCO marketed and sold this plan to Hummer. SISCO is also the “claims processor” for the plan. Through a service agreement between SISCO and Hummer, SISCO contractually agreed to perform various functions related to the administration of the plan. Healthcorp, Inc., SISCO’s sister company underneath the same corporate umbrella, is listed in the plan document as the “review organization.”

The Hummer Health Plan provides the following conditions for the coverage of a gastric bypass procedure:

26. Charges for services in connection with surgical treatment of morbid obesity will be considered Eligible Expenses, subject to the following conditions:
a. A second concurring opinion is required prior to the surgical procedure; and
b. Pre-authorization is required. Coverage is subject to the following guidelines:
a. Body weight must be at least 200% of the optimal weight.
b. The covered individual must have been considered morbidly obese by a Physician for at least five (5) years prior to the date surgical treatment is sought.
c. Non-surgical methods of weight reduction must have been attempted under a Physician’s supervision for at least a three (3) year period immediately prior to the date surgical treatment is sought.

On April 23, 2001, a health insurance review specialist hired by Eggiman’s physician sent a letter to SISCO requesting a review and authorization for the gastric bypass surgery. Among other things, the physician’s health insurance review specialist informed SISCO that Eggiman weighed 283.8 pounds and was 132.8 pounds overweight.

On May 14, 2001, the physician’s health insurance review specialist received a letter from Cottingham & Butler (hereinafter “C & B”) denying “eligibility” because the following criteria had not been met:

(1) Eggiman’s weight was less than 200% of her optimal weight, (2) there was no documentation from a physician indicating she had been morbidly obese for at least five years, (3) there was no documentation of at least three years of unsuccessful physician supervised weight-loss plans, and (4) there was no second surgical opinion.

On June 5, 2001, Eggiman received a letter from C & B, signed HealthCorp, Inc., informing her that “hospitalization cannot be certified due to” insufficient information. Eggiman called SISCO and spoke with a representative about what information was still needed for certification.

On June 15, 2001, the physician’s health insurance review specialist received another letter from C & B. This letter stated the following criteria had been met: (1) Eggi-man was considered morbidly obese by a physician for at least the previous five years, and (2) non-surgical methods of weight reduction had been attempted under a physician’s supervision for at least a three year period prior to the date of the proposed surgery. However, the letter denied “eligibility” because a second surgical opinion had not- been obtained and Eggiman’s weight was only 188% of her ideal weight. There is no indication this letter was sent to Eggiman.

On the same day, Eggiman received a letter from C & B, signed HealthCorp. Inc., that stated:

[Mary Eggiman] has been pre-certi-fied for a GASTRIC BYPASS FOR OBESITY by HealthCorp, the managed care company selected by your employer. At this time a date has not been established for the procedure. Health-Corp should be notified ... when a date is confirmed.
The physician, SISCO, and the hospital have been notified of your certification. IT DOES NOT GUARANTEE PAYMENT.
Healthcorp’s certification process evaluates the appropriate length of hospital stay and/or the appropriateness of services provided. Please be advised that the determination of your benefits will be decided by the rules within your company’s health plan document. Any reimbursement is based on the services that were provided, the participant’s eligibility and the plan limitations.

(Emphasis in original.)

On July 24, 2001, Eggiman received another letter from C & B, signed by Health-Corp. Inc. The letter stated the following:

This letter is to notify you that your upcoming hospitalization, listed above, has been precertified. The length of stay precertified is an anticipated length of stay. If additional days are medically appropriate, the length of stay will be increased.
You will receive a “final certification” letter after your discharge from the hospital. The final letter will include all days certified for this hospitalization.
Healthcorp’s certification process determines the medical appropriateness of hospitalization and/or services provided. The final determination of continued hospitalization is the decision of the attending physician. The final determination of benefits will be made by SIS-CO. Any reimbursement is based on the medical appropriateness of services provided, participant’s eligibility, and plan limitations.
The admitting physician, SISCO, and the hospital have been notified of your precertification. This precertification provided by Healthcorp satisfies the requirements of your employer’s admission review process.

(Emphasis added.) This letter contained language indicating the final determination of benefits would be made by SISCO. Eg-giman had received similar letters from SISCO and the bills were always paid.

The surgery was performed on July 30, 2001. Eggiman had a second surgery on August 14, 2001 to repair a leak in the surgical incision from the first surgery. She was also “precertified” by HealthCorp for this second surgery.

On September 11, 2001, Eggiman received a letter from C & B indicating both surgeries were not covered under the plan because “all items” were not satisfied. Specifically, the letter stated her body weight was not 200% of her optimal weight and a concurring secondary surgical opinion had not been obtained. In addition, in direct conflict with the letter sent on June 15, the letter stated a physician had not considered her morbidly obese for at least five years prior to the date of surgery, and there was no record of non-surgieal weight reduction attempted under a physician’s supervision for the three year period immediately prior to the surgery.

Eggiman filed the present action on October 12, 2003 against both Hummer and SISCO claiming she was denied medical and health care benefits to which she was entitled under the Hummer Health Plan. Hummer and SISCO filed a motion for summary judgment. The motion pointed out that “pre-certification” and “pre-au-thorization” were two separate concepts under the Hummer Health Plan. While Eggiman was “pre-certified,” she was never “pre-authorized” and therefore failed to meet the criteria set forth in the plan. The motion also argued SISCO should be dismissed from the lawsuit because it did not qualify as an ERISA fiduciary and therefore was not liable to Eggiman.

Eggiman resisted the motion, claiming she had complied with all of the requirements demanded of her prior to the surgery. She also indicated she was never told she was not pre-authorized for the surgery until after the surgery was complete. She also argued SISCO’s representations and actions led her to believe the procedure was covered. The district court concluded no genuine issue of material fact remained as to her coverage under the terms of the plan. The court found as a matter of law it was proper to deny benefits for the surgery because Eggiman failed to obtain pre-authorization. The court further found SISCO held no fiduciary responsibility to Eggiman, as contemplated under ERISA, and SISCO therefore could not be found liable for any allegedly misleading statements it made to Eggiman. The district court made no ruling on whether the statements were, or were not, misleading.

Eggiman appealed and the court of appeals affirmed the district court’s ruling. The court of appeals noted Eggiman did not “specifically contest” the district court’s conclusion that it was proper to deny benefits based on Eggiman’s failure to obtain pre-authorization. Eggiman conceded her appeal was based on the position she had a valid ERISA claim because of the misleading statements made by SIS-CO. The court of appeals found this misrepresentation issue was not properly preserved for appellate review. We granted Eggiman’s application for further review.

II. Scope of Review

Summary judgment is proper only when the record shows no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The court must view the record in the light most favorable to the nonmoving party. Lloyd v. Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004). In deciding whether there is a genuine issue of material fact, the court should also afford the nonmoving party every legitimate inference the record will bear. Smidt v. Porter, 695 N.W.2d 9, 14 (Iowa 2005). Our review of a summary judgment ruling is for correction of errors at law. Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005).

III. Merits

The district court made an adverse ruling on Eggiman’s coverage claim. It concluded there was no factual dispute with regard to the approval Eggiman was required to obtain before the surgery and it was therefore proper to deny benefits based on her failure to obtain pre-authori-zation. Eggiman does not contest this finding on appeal. Instead, she argues she has a valid ERISA claim because SISCO’s misleading statements erroneously caused her to believe she would be covered under the plan. We therefore proceed to analyze her misrepresentation claim.

A. Misrepresentation

1. Error Preservation

Although not argued by either party, the court of appeals determined Eg-giman’s misrepresentation claim was not preserved for appellate review. It is a fundamental doctrine of appellate review that issues must ordinarily be raised and decided by the district court before we will decide them on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998). In order to preserve error for appeal, the party who raised an issue that was not ruled upon must file a motion requesting a ruling.

The court of appeals concluded there was no ruling on the misrepresentation issue and Eggiman failed to file a motion requesting such a ruling. We disagree. The district court expressly addressed Eggiman’s misrepresentation argument in its ruling. The district court said:

Plaintiff argued at hearing that the representations and actions of SISCO led both plaintiff and the health care provider to believe that the procedure was covered. Plaintiff asserted she was “encouraged” by [a SISCO claims representative] to go ahead with the surgery, leading plaintiff to believe the surgery was covered.... Finally, Plaintiff argued that SISCO is a fiduciary in this matter.

Later, the district court stated:

The Court turns to the issue of whether SISCO is a fiduciary and, therefore, is liable to [plaintiff], ERISA provides a cause of action for a fiduciary’s misrepresentation of health plan coverage. To establish a breach of fiduciary duty, Plaintiff must prove SISCO is an ERISA fiduciary.

(Emphasis added.) The district court then determined, based on the terms in the service agreement between Hummer and SISCO, SISCO was not an ERISA fiduciary. Because SISCO was not an ERISA fiduciary, the court determined SISCO did not have a fiduciary responsibility to Eggi-man.

Although the court did not address whether SISCO’s letters were actually misleading, it did rule on Eggiman’s misrepresentation claim by concluding SISCO had no fiduciary duty to Eggiman. As discussed below, fiduciary status was a preliminary requirement for Eggiman’s misrepresentation claim. Eggiman was not required to file a motion asking the court to hypothecate whether it would have found the statements misleading had it determined SISCO was an ERISA fiduciary. Indeed, it would have been improper for the court to do so. See Wickey v. Muscatine County, 242 Iowa 272, 287, 46 N.W.2d 32, 40 (1951) (holding Iowa courts decline to issue opinions on nonjusticiable issues). Therefore the misrepresentation issue was adequately preserved for our review.

2. Cause of Action

Eggiman argues SISCO’s allegedly misleading statements caused her to have the surgery because she erroneously believed she would be covered under the Hummer Health Plan.

Our analysis begins with the cause of action as established under ERISA. ERISA was enacted to

protect ... the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.

29 U.S.C. § 1001(6). In keeping with this design, ERISA imposes several fiduciary duties on certain entities. Specifically, 29 U.S.C. § 1104(a)(1), which governs fiduciary duties, provides in relevant part:

a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims ....

Several courts have held that misleading communications to plan participants regarding plan administration (i.e. eligibility under a plan or the extent of benefits under a plan) support a claim for breach of fiduciary duty. Berlin v. Mich. Bell Tel. Co., 858 F.2d 1154,1163 (6th Cir.1988); see also Peoria Union Stock Yards Co. Ret. Plan v. Penn Mut. Life Ins. Co., 698 F.2d 320, 326 (7th Cir.1983) (“Lying is inconsistent with the duty of loyalty owed by all fiduciaries and codified in [29 U.S.C. § 1104].”); Rosen v. Hotel & Rest. Employees & Bartenders Union, 637 F.2d 592, 600 n. 11 (3d Cir.1981) (holding a fiduciary is under a duty to communicate material facts to a plan beneficiary); Muenchow v. Parker Pen Co., 615 F.Supp. 1405, 1417 (W.D.Wis.1985) (stating “ERISA supplies plaintiffs a remedy for the wrong [of misrepresentation by fiduciaries] alleged in their complaint”); Disk 65, UAW v. Harper & Row Publishers, Inc., 576 F.Supp. 1468, 1480 (S.D.N.Y.1983) (precluding summary judgment on claim fiduciary breached its fiduciary duties by failing to provide the plan participants with information necessary to make an informed decision). The first step in such a claim is proof the person supplying the misleading information qualifies as an ERISA fiduciary. Ince v. Aetna Health Mgmt., Inc., 173 F.3d 672, 674 (8th Cir.1999); Greenblatt v. Prescription Plan Servs. Corp., 783 F.Supp. 814, 820 (S.D.N.Y.1992).

3. ERISA Fiduciary

An entity is an ERISA fiduciary if it performs fiduciary functions. Bd. of Trustees of the W. Lake Superior Piping Indus. Pension Fund v. Am. Benefit Plan Adm’rs, Inc., 925 F.Supp. 1424, 1433 (D.Minn.1996) (recognizing the status of a person providing administrative services to an ERISA plan is not determined by the person’s title, label, or designation, but rather by whether the person performs or has been assigned functions that fall within the scope of 29 U.S.C. § 1002(21)(A)). ERISA provides a person is an ERISA fiduciary if:

(i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting • management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.

29 U.S.C. § 1002(21)(A) (emphasis added).

Because ERISA was enacted to protect participants in employee benefits plans, courts give the term “fiduciary” a liberal construction to maintain the remedial purpose of ERISA. Am. Fed’n of Unions v. Equitable Life Assurance Soc’y, 841 F.2d 658, 662 (5th Cir.1988). In essence, so long as SISCO exercised discretionary authority over the management of the Hummer Health Plan or had discretionary authority or responsibility in the plan’s administration, then SISCO qualifies as an ERISA fiduciary for the purposes of Eggiman’s claim. See 29 U.S.C. § 1002(21)(A).

The district court concluded, as a matter of law, SISCO was not an ERISA fiduciary because the duties set forth in the service agreement between Hummer and SISCO did not give SISCO a fiduciary responsibility with regards to Eggiman. The court also concluded SISCO did not utilize any discretionary authority.

We find such a conclusion was, at best, premature. Eggiman has produced evidence that could lead a fact finder to conclude SISCO’s actions made it an ERISA fiduciary. Eggiman points out that SIS-CO or its parent company drew up the terms of the benefits plan and made all the decisions and exercised all of the authority and discretion in determining whether her claim was approved or denied.

In Brock v. Self, 632 F.Supp. 1509,1519-21 (WD.La.1986), a Louisiana district court found a pension plan service company, its chief executive officer, and an employee managing its pension and profit-sharing plan servicing operations were all ERISA fiduciaries because they had, among other things, helped to design the plan, provided all of the documents and materials necessary to establish the plan, and had admitted responsibility to amend the plan to conform to ERISA requirements.

While the service agreement between Hummer and SISCO states SISCO was to “provide assistance in the preparation of plan documents and plan amendments” at Hummer’s request, testimony from Ronald Hummer, Jr., the owner of R.H. Hummer, Jr., Inc. indicates SISCO did much more than “provide assistance.” Mr. Hummer testified that SISCO devised and prepared the entire plan with little or no input from him. The only input Mr. Hummer had in the plan was the dollar amount of the deductible paid by Hummer. There is an obvious conflict between the plan’s rendition of who drafted the plan and Ronald Hummer’s testimony about who drafted the plan; therefore, taking the facts in the light most favorable to the nonmoving party, there is a reasonable inference that SISCO designed the plan and provided all materials necessary to establish the plan.

There is also enough evidence to support a reasonable inference that SISCO had the authority to exercise its own discretion to determine whether Eggiman’s claim was covered. According to the Department of Labor, a person or entity is not considered an ERISA fiduciary even though the person or entity processes claims and makes recommendations to others for decisions with respect to plan administration. 29 C.F.R. § 2509.75-8, D-2 (2005). However, in the present case, there is enough evidence for a reasonable person to conclude SISCO did much more than merely process claims and make recommendations. While the plan document gave Hummer the authority “to control and manage the operation and administration of the Plan,” and the “sole authority and responsibility to review and make final decisions on all claims,” it also stated “Hummer may delegate responsibilities for the operation and administration of the plan.” Hummer made such a delegation in the service agreement with SISCO. The agreement held SISCO was to provide “claims administration” and “shall ... [m]ake claim payment decisions, except when specifically directed by the Employer.” This delegation of power arguably gave SISCO some discretionary authority over Eggiman’s claim.

Beyond the authority listed in the service agreement, the testimony from Ronald Hummer, the correspondence from HealthCorp, and SISCO’s actions in processing Eggiman’s claim also point towards discretionary authority. In his deposition, Ronald Hummer repeatedly stated that SISCO made the decision whether to approve or deny claims. He stated, “I don’t make that judgment call. We hired SISCO to do that.” It was Ronald Hummer’s understanding that he, as the employer, had “no say-so in how [the plan] was administrated.” Likewise, in the July 24 letter to Eggiman, Health-Corp told Eggiman “[t]he final determination of benefits will be made by SIS-CO.” (Emphasis added.) The present record does not indicate SISCO ever asked Ronald Hummer whether Eggi-man’s claim should be pre-authorized, approved, or disapproved. These decisions were apparently all made by SISCO itself.

SISCO’s argument that the court should find, as a matter of law, SISCO did not have discretionary authority because Hummer held the ultimate authority to approve or deny all claims is not persuasive. In American Federation of Unions v. Equitable Life Assurance Society, an administrator was held to be a fiduciary because he was empowered to investigate, process, resolve, and pay claims to members of an ERISA fund. 841 F.2d at 662-63. The court concluded those functions qualified “as discretionary control respecting management of a plan or its assets within the meaning of § 1002(21)(A).” Id. at 663. The court stated, “[the administrator’s] fiduciary status was not diminished by the trustees’ final authority to grant or deny claims and approve investments. The term fiduciary includes those to whom some discretionary authority has been delegated.” Id. (emphasis added). Even though Hummer possessed the ultimate authority to approve or deny Eggiman’s benefit claim, Eggiman has produced enough evidence to suggest some discretionary authority had been delegated to SISCO and SISCO acted for the purposes of Eggiman’s claim, as an ERISA fiduciary.

IV. Conclusion

We do not disturb the district court’s conclusion that it was proper to deny benefits based on Eggiman’s failure to obtain pre-authorization. However, we reverse the decision which found, as a matter of law, SISCO owed no fiduciary responsibility to Eggiman. As once stated by the United States Court of Appeals for the Fourth Circuit:

Even in cases where the judge is of the opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of it being presented.

Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.1951). Based on the present record, a reasonable fact finder could conclude Hummer drafted the health plan and, despite Ronald Hummer’s testimony to the contrary, held all the authority and exercised all discretion to approve or deny .claims. On the other hand, a reasonable fact finder could conclude SISCO’s actions went far beyond merely processing claims and making recommendations. The fact finder might conclude SISCO sold the plan to Hummer as a full service plan but then wrote the plan document so as to shield itself from ERISA fiduciary status.

When two legitimate, conflicting-inferences are present at the time of ruling upon the summary judgment motion, the court should rule in favor of the nonmoving party. See Daboll v. Hoden, 222 N.W.2d 727, 733 (Iowa 1974) (“If reasonable minds could draw different inferences and reach different conclusions from the facts, even though undisputed, the issue must be reserved for trial.”). In this case, the court balanced and weighed the evidence to reach an ultimate decision on the merits of the case. As noted above, the court’s role at the time of summary judgment was to determine whether a rational trier of fact could conclude SISCO was an ERISA fiduciary, not to make an ultimate decision on the merits of the case. Because reasonable minds could draw different inferences from the conflicting set of facts in this case, the district court’s decision to find against Eggiman on this motion for summary judgment was erroneous. We therefore vacate the decision of the court of appeals and reverse the district court’s decision in part and remand for further proceedings.

DECISION OF COURT OF AP- ‘ PEALS VACATED; DISTRICT COURT ORDER REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

      . C & B is the parent company of SISCO and HealthCorp. All correspondence pertinent to this claim was sent on C & B stationery. This stationery listed the names SISCO and HealthCorp under the name C & B.

      . "Pre-certification” is described in the plan as a "mandatory utilization review requirement ... required for all scheduled Hospital admissions and Outpatient services.... Pre-certification determines that services received are Medically Necessary.” On the other hand, the term "pre-authorization” was listed as a requirement for gastric bypass surgery, but it was not defined or otherwise described in the plan.

      . SISCO's argument that it had no discretionary authority because it was bound to follow the terms and criteria set forth in the Hummer Health Plan is not dispositive at the summary judgment level. As stated in Protocare of Metropolitan N.Y., Inc. v. Mutual Association Administrators, Inc., 866 F.Supp. 757, 762 (S.D.N.Y.1994), ''[a] person who has no power to make any decisions on plan policy, interpretations, procedures or practices, but who applies the rules determining eligibility for participation or benefits in the plan is not a fiduciary.” (Internal quotations and citations omitted; emphasis added.) While the plan document sets forth the criteria for benefits, Hummer’s testimony was that SISCO wholly designed the plan and was hired to make all decisions on whether to approve or deny benefit claims. Therefore, taking the facts in the light most favorable to the non-moving party, we cannot find that SISCO had "no power to make any decisions.” See id.

      . Although we do not conclude, as a matter of law, that SISCO was an ERISA fiduciary, we do conclude there is enough evidence in the record for a rational trier of fact to conclude that SISCO was a fiduciary with respect to the Plan.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Thomas P. FRERICHS, Respondent.
    No. 06-0003.
    Supreme Court of Iowa.
    July 28, 2006.

      Charles L. Harrington and Laura M. Roan, Des Moines, for complainant.
    Clemens A. Erdahl of Nidey, Peterson, Erdahl & Tindal, Cedar Rapids, for respondent.
   WIGGINS, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (Board) filed a complaint alleging Thomas P. Frerichs violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers in handling a legal matter. The Grievance Commission (Commission) found the Board had proved the allegations of the complaint and recommended we suspend Frerichs’ license to practice law for six months. We agree with the Commission that Frerichs’ conduct violated numerous rules of the Iowa Code of Professional Responsibility for Lawyers; however, we disagree with its recommended sanction and suspend Frerichs’ license to practice law in this state indefinitely with no possibility of reinstatement for three months.

I. Scope of Review.

This court reviews attorney disciplinary proceedings de novo. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Honken, 688 N.W.2d 812, 815 (Iowa 2004). We consider the factual findings and disciplinary recommendations of the Commission in deciding the matter. Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa 2005). Ethical violations must be proven by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Williams, 675 N.W.2d 530, 531 (Iowa 2004).

II. Background Facts and Proceedings.

The Board filed a complaint against Frerichs consisting of two counts alleging various violations of the Iowa Code of Professional Responsibility for Lawyers. Fre-richs filed an answer admitting and denying various parts of the complaint. The Commission held a hearing at which Fre-richs testified. At the hearing, the Board’s and Frerichs’ exhibits were admitted by agreement of the parties. One of the exhibits contained a stipulation by the parties to certain facts, ethical violations, and prior disciplinary action against Fre-richs.

On our de novo review, we find Frerichs represented a client who had been personally served with a notice of forfeiture. The Iowa Code provides such a party must file a claim opposing forfeiture within thirty days of service in order to avoid forfeiture of the subject property to the State. Iowa Code § 809A.16(1) (2001). Frerichs filed an answer and claim of exemption on the client’s behalf thirty-three days after personal service of the notice. On September 17, 2002, the district court held the forfeiture hearing in Butler County. Frerichs did not move for a continuance of the hearing nor did he appear in person or by telephone. The client appeared in person. Judge Bryan McKinley presided over the hearing. The matter proceeded to hearing and Judge McKinley dismissed the client’s claim as untimely under section 809A.16(1).

Frerichs filed a motion to set aside the court’s ruling. In the motion, he stated:

This matter was set for hearing on September 17, 2002. On September 16, 2002, Mr. Frerichs’ office advised the County Attorney that Mr. Frerichs would be in trial in Black Hawk County on September 17, 2002, but would ask the trial judge for permission to participate in this hearing by telephone.
The presiding judge in Black Hawk County denied Mr. Frerichs’ request to leave the courtroom to participate in this hearing. Furthermore, Mr. Frerichs was not allowed to leave the courtroom until the noon break, at which time he immediately called his office and advised that he had not been allowed to participate in the hearing by telephone.

■ Upon receipt of the motion, Judge McKinley made inquiry of Black Hawk County District Court Judge James Coil, who had presided over the Black Hawk County trial on September 17. Judge Coil indicated by letter to Judge McKinley that Frerichs never made a request to leave the courtroom and Frerichs was allowed to leave the courtroom before the noon break. Prior to the hearing on the motion, Judge McKinley forwarded a copy of Judge Coil’s letter to Frerichs. At the hearing, Fre-richs corrected the inaccuracies of his motion in open court. The court accepted the correction and did not rely on the inaccuracies in overruling the motion.

The Board filed a complaint. Frerichs did not accept delivery of the Board’s initial notice of complaint. After the Board personally served the complaint on Fre-richs, Frerichs failed to respond to the Board’s initial notice of complaint. The Board sent another notice to Frerichs by restricted certified mail. The postal service returned that notice as unclaimed. The Board then notified Frerichs by ordinary mail of the consequences of his failure to respond to the Board’s notice and sent a copy of the Board’s second notice informing him he had ten days to respond. Although late, Frerichs finally responded to the complaint.

Frerichs testified before the Commission as to his version of the events that led up to him filing the motion that contained the inaccuracies. He stated he was approximately number fourteen on the jury trial list in Black Hawk County for trials to begin on Tuesday. On that same Tuesday, he was scheduled to be in Butler County at the forfeiture hearing. On the preceding Friday, Frerichs became aware he was getting closer to the number one trial setting but it was not an immediate concern to him. On Monday afternoon, it became an immediate concern and Fre-richs and/or his assistant attempted to contact the county attorney’s office in Butler County to advise it of his conflict. Fre-richs also stated on Tuesday morning he attempted to call the Butler County clerk’s office in hopes of contacting the judge scheduled to be in that county on that date, but he was advised to call back. Frerichs left instructions with his assistant to contact the Butler County judge and explain his absence. Frerichs proceeded with the Black Hawk County trial.

Later that day, Frerichs had another conversation with his assistant regarding the matter. This conversation led his assistant to believe Frerichs had attempted to leave the trial in order to make a call to Butler County but had been denied such authority by the presiding judge. After this conversation, Frerichs instructed his assistant to draft the motion. Frerichs only made a cursory review of the motion, signed it, and filed it. While he acknowledges having assumed responsibility for the motion, Frerichs continues to deny making the statements to his assistant that misrepresented his attempts to leave the courtroom to call Butler County and he denies having been aware such misrepresentations were included in the motion at the time of its filing.

Even with this explanation, we agree with the Commission’s finding that Fre-richs knowingly filed a motion containing false representations and did not recant his position until after Judge Coil provided a written explanation of the facts to Judge McKinley.

III. Ethical Violations.

The Commission found Frerichs’ conduct constituted a violation of Iowa Code of Professional Responsibility for Lawyers DR 1 — 102(A)(1) (providing a lawyer shall not violate a disciplinary rule), DR 1-102(A)(4) (providing a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (providing a lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1-102(A)(6) (providing a lawyer shall not engage in any other conduct that adversely reflects on the fitness to practice law), DR 6-101(A)(3) (providing a lawyer shall not neglect a client’s legal matter), and DR 7-102(A)(5) (providing in the representation of a client, a lawyer shall not knowingly make a false statement of law or fact).

We agree with the Commission’s finding that Frerichs’ conduct violated DR 1-102(A)(1), DR 1-102(A)(4), DR 1-102(A)(5), DR 1-102(A)(6), and DR 6-101(A)(3). See Iowa, Supreme Ct. Attorney Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684-85 (Iowa 2006) (finding these very same violations where the attorney neglected three estate matters, neglected a real estate matter, misrepresented matters to the court and a client, and failed to respond to complaints sent by the Board).

We also agree with the Commission’s finding that Frerichs’ conduct violated DR 7-102(A)(5). In discussing DR 7-102(A)(5), we have stated:

[L]awyers find themselves in disciplinary proceedings for a variety of reasons. Sometimes it is evil intent that gets a lawyer into trouble; sometimes it is merely a failure to recognize the significance of action deliberately taken. Here that failure led [the attorney] to knowingly make a false statement of fact on a document filed for public record.

Comm, on Prof'l Ethics & Conduct v. O’Donohoe, 426 N.W.2d 166, 168-69 (Iowa 1988); see also Comm, on Prof'l Ethics & Conduct v. Hurd, 325 N.W.2d 386, 389-90 (Iowa 1982) (explaining DR 7-102(A)(5), in conjunction with DR 1-102(A)(1) and DR 1-102(A)(4), means “a lawyer should conduct himself in his professional capacity with honesty and truthfulness, and should avoid statements or actions that are calculated to deceive or mislead”).

IV. Sanction.

The Commission recommended Frerichs’ conduct warrants a suspension of his license to practice law for six months; however, “the matter of sanction is solely within the authority of this court.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sloan, 692 N.W.2d 831, 833 (Iowa 2005). In determining the sanctions a lawyer must face as a result of his or her misconduct, we have stated:

The goal of the Code of Professional Responsibility is “to maintain public confidence in the legal profession as well as to provide a policing mechanism for poor lawyering.” When deciding on an appropriate sanction for an attorney’s misconduct, we consider “the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and [the court’s] duty to uphold the integrity of the profession in the eyes of the public.” We also consider aggravating and mitigating circumstances present in the disciplinary action.

Honken, 688 N.W.2d at 820 (alteration in original) (citations omitted). In this case, Frerichs’ conduct consisted of neglecting a client’s legal matter, making a misrepresentation to the court, and failing to respond to the Board.

Precedents in attorney discipline cases involving neglect are of little value and we must consider each case on an individual basis. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 683 N.W.2d 549, 553 (Iowa 2004). “While neglect alone ordinarily deserves a sanction ranging from a public reprimand to a six-month suspension, neglect compounded by other misconduct requires us to impose a more severe sanction than when neglect is the only violation.” Walker, 712 N.W.2d at 685.

An aggravating factor present in this record is a recanted misrepresentation to the court. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rauch, 650 N.W.2d 574, 578 (Iowa 2002) (finding a lawyer’s violation of a disciplinary rule “is seriously aggravated by his misrepresentation to the court”). Another consideration is that although Frerichs admits to most of the disciplinary rule violations and he acknowledges some responsibility for the misrepresentations in the motion, he still appears to attempt to shift the blame for his actions to his assistant who authored the motion, which does not reflect well on his fitness to practice law. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa 1999). Finally, it is significant that Fre-richs’ actions caused harm to his client by his failure to file a timely response to the notice of forfeiture. See Honken, 688 N.W.2d at 821.

A mitigating factor in this record is Frerichs’ battle with depression. Problems such as depression may influence our approach to discipline, but such issues are considered personal problems of the lawyer that do not excuse the misconduct. Id. at 821-22. We also consider Frerichs’ attempts to address his depression through therapy and medication. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Erbes, 604 N.W.2d 656, 658-59 (Iowa 2000) (noting an attorney’s efforts to face his depression in determining the appropriate sanction).

Finally, we must consider Frerichs’ previous disciplinary problems. See Comm, on Prof'l Ethics & Conduct v. Nadler, 467 N.W.2d 250, 254 (Iowa 1991) (stating prior disciplinary action taken against a lawyer is considered in determining the proper discipline). In September 1998, the Board admonished Frerichs for failing to provide a timely response to the Board’s initial notice of complaint. In March 2001, the Board admonished Frerichs for his failure to appear at a hearing. In May 2004, we accepted the Board’s public reprimand of Frerichs for failing to cure a default resulting in dismissal of his client’s appeal. In September 2005, we accepted the Board’s public reprimand of Frerichs for failing to cure a notice of default resulting in dismissal of his client’s appeal, even though the client did not want to pursue the appeal. There the Board noted Fre-richs owed a duty to the court and opposing counsel to file a voluntary dismissal promptly rather than relying on the dismissal to occur by default. Finally, in November 2003, we suspended Frerichs’ license to practice law for four months for “charging an unethical and illegal fee, neglect, and failure to cooperate with the Board.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Frerichs, 671 N.W.2d 470, 478 (Iowa 2003).

The neglect and subsequent misrepresentation that is the subject of this complaint occurred in 2002. The only disciplinary actions preceding Frerichs’ conduct were the 1998 and 2001 admonitions. Accordingly, we impose a three-month suspension based on Frerichs’ single act of neglect, his misrepresentation, and his failure to respond to the Board’s inquiries. See Walker, 712 N.W.2d at 684-86 (finding neglect of four legal matters, misrepresentations to the court and a client, and failure to respond to the Board required a six-month suspension where clients were harmed and attorney suffered from depression); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Daggett, 653 N.W.2d 377, 379-82 (Iowa 2002) (finding neglect of one legal matter, making a misrepresentation to the court, and failing to respond to the Board required a sixty-day suspension where attorney was experiencing depression, attorney had a previous public reprimand, and a client was harmed); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293-96 (Iowa 2002) (finding neglect of two legal matters, a misrepresentation to the court, and failure to timely respond to the Board required a sixty-day suspension where attorney suffered from depression); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hohenadel, 634 N.W.2d 652, 653-57 (Iowa 2001) (finding neglect of two legal matters as well as misrepresentations to the court and clients required a four-month suspension where the clients were harmed, attorney had prior public reprimand, and attorney suffered from alcoholism for which he sought treatment); Comm, on Prof'l Ethics & Conduct v. Horn, 480 N.W.2d 861, 862-63 (Iowa 1992) (finding neglect of one legal matter, misrepresentations to a client, and failure to cooperate with the committee required a six-month suspension where attorney had prior suspension); Comm, on Profl Ethics & Conduct v. Horn, 379 N.W.2d 6, 7-10 (Iowa 1985) (finding failure to cooperate with the committee, neglect of one legal matter, and misrepresentations to the decedent’s daughter and her attorney required a three-month suspension).

Therefore, we suspend Frerichs’ license to practice law indefinitely with no possibility of reinstatement for three months.

Y. Disposition.

We suspend Frerichs’ license to practice law in this state indefinitely with no possibility of reinstatement for three months. The suspension applies to all facets of the practice of law. See Iowa Ct. R. 35.12. Upon any application for reinstatement, Frerichs must establish that he has not practiced law during the suspension period and he has in all ways complied with the requirements of Iowa Court Rule 35.13. In his application for reinstatement, Fre-richs must provide this court with an evaluation by a licensed health care professional verifying his fitness to practice law. Before obtaining this evaluation, Frerichs shall submit the name of the proposed evaluator and the nature of the evaluation to the Board for its prior approval. Fre-richs shall also comply with the notification requirements of Iowa Court Rule 35.21. We tax the costs of this action to Frerichs pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Brian J. PETERSON, a Minnesota Attorney, Registration No. 85625.
    No. A05-646.
    Supreme Court of Minnesota.
    July 27, 2006.
    See also, 658 N.W.2d 875; 660 N.W.2d 419.
   OPINION

PER CURIAM.

This attorney discipline case arises out of a petition and a supplementary petition filed by the Director of the Office of Lawyers Professional Responsibility (OLPR) against respondent Brian J. Peterson alleging numerous violations of the Minnesota Rules of Professional Conduct. We granted the director’s request for temporary suspension based on the alleged misconduct. After a hearing, the referee concluded that Peterson had violated Minn. R. Prof. Conduct 1.7(b), 14 Minn.Stat. 1391-92 (2004) (amended June 17, 2005, eff. Oct. 1, 2005) (conflict of interest), Minn. R. Prof. Conduct 8.4(b) (commission of a criminal act), and Minn. R. Prof. Conduct 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The referee recommended that Peterson be disbarred. We conclude that disbarment is the appropriate discipline.

Peterson was admitted to practice law in Minnesota on October 1, 1976. He has a history of professional discipline. Peterson has been admonished for professional misconduct connected with his representation of six separate clients. He was previously suspended by this court on December 21, 2000. In re Peterson, 620 N.W.2d 29, 30 (Minn.2000). That suspension was based on Peterson’s misconduct in fabrication of a homestead waiver and in filing an attorney’s lien against the client’s homestead without obtaining a validly executed waiver of the homestead exemption. Id. The director filed another petition for disciplinary action alleging that, while suspended, Peterson filed an attorney’s lien against a client’s homestead using a fabricated waiver of the homestead exemption. The referee appointed by this court in that matter agreed with the director, and we affirmed the referee’s conclusion that Peterson committed misconduct and that the misconduct warranted suspension. In re Peterson, 658 N.W.2d 875, 875 (Minn.2003). Peterson and the director entered into an agreement stipulating the conditions for Peterson’s reinstatement, and we then ordered Peterson’s reinstatement to the practice of law with supervised probation for a two-year period. In re Peterson, 660 N.W.2d 419, 420 (Minn.2003).

The majority of the allegations contained in the petition and supplementary petition for disciplinary action currently before us arise from Peterson’s actions while acting as attorney in fact for his client, Mildred Johnson, an elderly widow. In 1994, Johnson retained Peterson to prepare her will, and in August 2000 Johnson designated Peterson as her attorney in fact. In December of 2002, Johnson fell in her apartment, fracturing her pelvis. As a result of this injury, Johnson was admitted to the Maranatha Care Center (MCC), where she was diagnosed with moderate dementia. At the hearing, Johnson’s physician opined that, from the time of Johnson’s admission to MCC, Johnson was unable to make decisions regarding her health care or finances and that Johnson would not be able to return to her assisted-living facility.

Soon after Johnson’s admission to MCC, Peterson decided to engage in a “spend down” of Johnson’s assets in order to make her eligible for government medical assistance. In January of 2003, Peterson estimated that Johnson had roughly $100,000 in assets, an estimate he based on a 1995 inventory of Johnson’s property. Because Peterson was suspended from the practice of law at that time, he retained Donald Fraley, an attorney for whom Peterson was currently working as a legal assistant, to “protect [Johnson’s] interests.”

In connection with the spend down, Peterson made a variety of purchases with Johnson’s assets. On January 20, 2003, Peterson purchased a 1998 Nissan Infiniti 130 for $10,018.38. He and Johnson were both listed on the title to the vehicle. Peterson testified that when he purchased the Infiniti he believed that $4,500 was the maximum vehicle exemption for the purposes of a medical assistance application. Soon after he purchased the Infiniti, Peterson testified that he was informed by a Hennepin County employee that there was no maximum vehicle exemption and that “You can buy a $40,000 car as far as we’re concerned. There’s no limit as long as you use it to do things for her.” Peterson further testified that based on this information he wrote a check to Johnson for the purchase price of the Infiniti, removed Johnson’s name from the title, and began looking for a more expensive vehicle for Johnson to purchase as part of the “spend down.”

Peterson, acting as Johnson’s attorney in fact, next purchased a 2003 Acura 3.5RL for $37,350.00. Peterson and Johnson were again both listed on the title, which Peterson testified was done for insurance purposes because Johnson did not have a valid driver’s license. Other purchases made on Johnson’s behalf as part of the spend down included the purchase of Thomas Moser furniture, Seasonal Concepts furniture, sculptures, and a sound system with a subwoofer. In addition, Peterson attempted to establish a pooled trust which he testified was intended to shelter Johnson’s remaining assets.

Hennepin County received Peterson’s first application for medical assistance, made on behalf of Johnson, on January 31, 2003. While Johnson’s application was initially approved, medical assistance benefits were eventually denied on the basis of Johnson’s ownership of the Acura. Peterson, through Fraley, appealed this denial, but later dropped the appeal and, on May 13, 2003, purchased the Acura from Johnson for $27,300. Peterson’s second application for medical assistance was received by Hennepin County on September 19, 2003. Hennepin County Adult Protection subsequently brought a petition for conser-vatorship, and a guardian/conservator was appointed for Johnson by early 2005. On January 10, 2005, Peterson was convicted of violating Minn.Stat. § 297B.10(a) (2004) (evasion of sales tax on motor vehicles) in connection with his purchase of the Acura from Johnson.

On March 31, 2005, the director filed the present petition for revocation of probation and further disciplinary action. The director alleged that Peterson had violated Rule 1.7(b), Minn. R. Prof. Conduct 1.5(a) (unreasonable fees), Minn. R. Prof. Conduct 1.8(c) (conflict of interest), Minn. R. Prof. Conduct 3.4(c) (disobey obligation under rules of tribunal), Minn. R. Prof. Conduct 5.5 (unauthorized practice of law), rule 8.4(b), rule 8.4(c), and Minn. R. Prof. Conduct 8.4(d) (conduct prejudicial to the administration of justice). In a supplementary petition, the director also alleged a violation of Minn. R. Prof. Conduct 1.15(a) (safekeeping of client funds) and rule 8.4(c).

After a hearing, the referee concluded that Peterson had violated rules 1.7(b) and 8.4(b) in connection with his purchase of the Acura from Johnson. In addition, the referee concluded that Peterson violated rule 8.4(c) through omissions made in Johnson’s two applications for medical assistance. The referee found Peterson’s history of professional discipline to be an aggravating factor and recommended that Peterson be disbarred. Peterson appeals to this court, disputing the referee’s findings, conclusions, and recommendation. The director argues the referee’s recommended discipline is appropriate, but asserts that the referee erred in failing to find that Peterson committed additional acts of misconduct.

I.

Peterson ordered a transcript of the referee’s hearing. Therefore, under rule 14(e), Rules on Lawyers Professional Responsibility (RLPR), the referee’s findings and conclusions of law are not binding on this court. In re Wentzell, 656 N.W.2d 402, 405 (Minn.2003). Generally, “this court will not reverse the findings and conclusions of the referee in a disciplinary hearing unless they are clearly erroneous.” In re Reiter, 567 N.W.2d 699, 701 (Minn.1997). We must be “ ‘left with the definite and firm conviction that a mistake has been made’ ” before determining a referee’s findings to be clearly erroneous. Wentzell, 656 N.W.2d at 405 (quoting In re Strid, 551 N.W.2d 212, 215 (Minn.1996)).

A.

Peterson’s first challenge is to the referee’s conclusion that Peterson’s May 2003 purchase of the Acura from Johnson violated rule 1.7(b). The referee based this legal conclusion on his finding that Peterson purchased the Acura “for his personal use for less than fair market value.” This finding was based in large part on the testimony of Richard Hibbing, a used car sales manager at Buerkle Acura. Hibbing, whose testimony the referee found credible, testified that the Acura in question would have had a retail sale value of at least $34,000 in May of 2003. Hibbing further testified that the Acura’s value in a private sale would have been $32,000 to $33,000 and that the auction or trade-in value would be $31,000 to $32,000. Hib-bing concluded that a person who paid $27,300 for the Acura in question in May of 2003, as did Peterson, paid less than fair market value for the vehicle and stated “we call it stealing a car in the car business.”

Before this court, Peterson challenges the referee’s conclusion by arguing that there is no evidence to show that he had reason to believe that the $27,300 he paid for the Acura was not a fair price. Peterson arrived at the sale price after obtaining trade-in offers from two car dealerships. Peterson stated that he “presumed that the offers [he] got were [the dealers’] best offers” and that he asked the dealers “what’s the most you can allow me on this vehicle, assuming a trade on a new [Acura] MDX.” Peterson also argues that he believed he was paying a fair price based on his compliance with the request of Richard Newstrom, a Hennepin County employee involved with applications for medical assistance, who requested that Peterson submit a written estimate of value from a dealer to Hennepin County before purchasing Johnson’s Acura. The director argues that Peterson’s intent to pay less than a fair price for Johnson’s Acura can be inferred from the circumstances.

It is evident from the circumstances of Peterson’s purchase of Johnson’s Acura that Peterson knew or should have known that he was paying less than fair market value for the Acura. Peterson testified that he had purchased Acura vehicles in the past and, when obtaining estimates on the value of the Acura, he presented the car as a potential trade-in to dealerships. Because Peterson knew or should have known that he was paying less than fair market value, Peterson cannot have reasonably believed that his representation of Johnson in connection with his purchase of Johnson’s Acura would not be adversely affected by his own financial interests. Consequently, the referee did not clearly err in concluding that Peterson violated rule 1.7(b).

B.

The referee concluded that Peterson violated rule 8.4(b) when he failed to pay motor vehicle tax on his purchase of Johnson’s Acura for himself. This conclusion was based on Peterson’s conviction under Minn.Stat. § 297B.10(a). Since the district court found Peterson guilty pursuant to this statute, the court necessarily found that Peterson acted “with intent to defeat or evade the tax.” Minn.Stat. § 297B.10(a). As Peterson acknowledges, in disciplinary proceedings “[a] lawyer’s criminal conviction in any American jurisdiction * * * [is] conclusive evidence that the lawyer committed the conduct for which the lawyer was convicted.” Rule 19(a), RLPR. Despite this, Peterson continues to argue that he did not know that his purchase of the Acura from Johnson was a taxable transaction, and he implies that the circumstances surrounding his conviction demonstrate that he did not violate rule 8.4(b). Peterson’s knowledge that the transaction was taxable is an implicit element of a section 297B. 10(a) violation, and “attorneys may not avoid the consequences of criminal conviction by attempting to relitigate the issue of guilt or innocence in subsequent disciplinary proceedings.” In re Dvorak, 554 N.W.2d 399, 402 (Minn.1996). Because Peterson was convicted of intentional evasion of a tax, the referee did not clearly err in concluding that Peterson committed a criminal act which reflects adversely on Peterson’s “honesty, trustworthiness, or fitness as a lawyer in other respects.” Rule 8.4(b).

C.

Peterson’s remaining challenges to the findings and conclusions of the referee concern the referee’s conclusion that Peterson violated rule 8.4(c) through omissions he made on Johnson’s applications for medical assistance. Peterson admits that he did not disclose all of Johnson’s existing assets on either application, but, with regard to each of the omitted assets, he maintains that: (1) the medical assistance application did not inquire about the asset, (2) he believed he did not need to disclose the asset, or (3) he was unaware of the existence of the asset. Consequently, Peterson argues that it was clearly erroneous for the referee to conclude such nondisclosure was “conduct involving dishonesty, fraud, deceit or misrepresentation” in violation of rule 8.4(c). The director argues that the referee’s findings and conclusion on this subject are well supported by the record and far from clearly erroneous.

The first medical assistance application submitted by Peterson was received by the county on January 31, 2003, and the date January 28, 2003, appears next to Peterson’s signature. The application, which requested assistance beginning on February 1, 2003, disclosed the existence of the following assets: (1) a U.S. Bank checking account, (2) an annuity, (3) a pension, (4) Social Security payments, and (5) an “auto.” The referee found that Peterson did not disclose the following assets on the application: (1) the 1998 Nissan Infiniti, (2) the 2003 Acura, (3) the Pooled Trust Agreement, (4) a Twin Cities Federal (TCF) account, (5) an “IDS account,” (6) an American Enterprise annuity, and (7) “the balance of the approximately $108,000 in assets known by [Peterson] to be in existence at the time of the Medical Assistance application.” Peterson does not appear to dispute that these assets were not disclosed, but instead argues that the referee clearly erred in concluding such omissions formed a basis for a violation of rule 8.4(e).

While the propriety of some of these omissions may be open to dispute, the referee’s conclusion that Peterson vio-lated rule 8.4(c) when he submitted the first application for medical assistance is not clearly erroneous. We base this conclusion on Peterson’s omission of the American Enterprise annuity on the application. The medical assistance application clearly asks applicants to list all annuities owned by the applicant. Peterson’s testimony indicates that he received and read Johnson’s January statement for her TCF checking account. On this statement was an automated deposit of $409.04 described as “Am Enterprise^] Ann Payout.” Peterson testified that he thought “Ann Payout” meant “annual payment”; this apparently was his explanation for his nondisclosure of the American Enterprise annuity on the application. The referee did not find this explanation credible. Given Peterson’s knowledge of the TCF statement at the time of the first application, and given that the referee did not credit Peterson’s explanation, the referee did not clearly err in concluding that nondisclosure of this annuity constituted conduct involving “dishonesty, fraud, deceit or misrepresentation.” Rule 8.4(c).

• The second medical assistance application submitted by Peterson was received by Hennepin County on September 19, 2003, and the date August 22, 2003, appears next to Peterson’s signature. With the exception that an “auto” was no longer listed as one of Johnson’s assets, the second application disclosed the same assets as those disclosed on the first application. The referee found that Peterson did not disclose the following assets on the second application: (1) the pooled trust, (2) the furniture and art work purchased by Peterson with Johnson’s funds, and (3) the full balance of Johnson’s U.S. Bank account. With the exception of the balance of the U.S. Bank account, Peterson does not contest that he failed to disclose these assets. He does, however, contest the referee’s conclusion that such nondisclosure constitutes a violation of rule 8.4(c).

Based on Peterson’s failure to disclose the pooled trust, the referee did not clearly err in concluding that Peterson violated rule 8.4(c) when he submitted the second application. On January 30, 2003, Peterson, acting on behalf of Johnson, signed a “pooled trust agreement” which attempted to establish an irrevocable trust with Johnson as its beneficiary. Both Peterson’s and the director’s expert witnesses testified that the agreement did not create an effective pooled trust. Between the time of Peterson’s first and second applications for medical assistance, Peterson appears to have made substantial transfers of money in and out of the trust. The referee found that the pooled trust had a balance of $20,640.59 on September 2, 2003, and neither the director nor Peterson challenges this finding as erroneous.

Peterson admits he never disclosed this trust on his applications for medical assistance, but maintains that he believed he did not have to disclose this trust because it was an exempt asset. He further argues that the referee credited this belief. A careful reading of the referee’s findings, however, indicates that the referee did not find this belief credible. In his findings, the referee stated that:

[Peterson] believed he did not have to disclose the existence of the Pooled Trust account on the fust or second medical assistance application from information he received from reading the State Medical Manual. [Peterson] reviewed the State Medical Manual and believed from this manual that he did not have to list any exempt assets as assets in any of the Medical Assistance Application [sic]. * * * It was [Peterson’s] belief that the Pooled Trust was an excludable asset when applying for Medical Assistance.
The evidence demonstrates that [Peterson] had knowledge of a substantial amount of assets that he did not disclose on the second Medical Assistance Application. Further, the Referee does not find credible [Peterson’s] explanation that he did not believe he was legally obligated to disclose such assets because they are exempt.

(Emphasis added.) Reading the relevant findings together, it becomes apparent that the referee did not credit Peterson’s testimony concerning his belief that he did not have to disclose exempt assets, including the pooled trust. Beyond citations of CLE materials and provisions of the State Medicaid Manual that do not directly deal with disclosure, referenced in Peterson’s affidavit, this “belief’ was the only evidence Peterson offered as a basis for his nondisclosure of the trust. Peterson’s own expert witness, along with the expert witness for the director, testified that such a trust must be disclosed, and the medical assistance application form specifically asks if the applicant owns any trusts and if any transfers of the applicant’s assets have been made to a trust in the past five years. In light of this evidence that disclosure of the trust was required and given the referee’s finding that Peterson’s explanation for his nondisclosure of exempt assets — including the trust — was not credible, the referee did not clearly err in concluding that Peterson engaged in “conduct involving dishonesty, fraud, deceit or misrepresentation” when he submitted the second application.

II.

While the director argues that the referee’s findings of misconduct offer a more than sufficient basis for the recommended disbarment of Peterson, the director also argues that the referee clearly erred in failing to find three additional instances of misconduct. Peterson argues that he acted properly throughout the events underlying these instances of alleged misconduct.

A.

The director first challenges the referee’s conclusion that “[t]he Director has failed to prove by clear and convincing evidence * * * [that Peterson] violated Minnesota Rule of Professional Conduct 1.15(a).” The director argues that Peterson’s handling of Johnson’s funds violated rule 1.15(a) on two occasions, and that such violations also breached rule 8.4(c).

1. Misappropriation of $26,865 in May 2008.

According to Moser’s billing records, after Peterson paid an initial deposit of $32,760, Peterson’s outstanding balance for the Moser furniture ordered on Johnson’s behalf was $38,400. On May 13, 2003, Peterson wrote check number 1036 in the amount of $38,365 from one of Johnson’s bank accounts to the account of Peterson’s family partnership. On the memo line of that check Peterson wrote “Furniture repay (charged on Visa).” As of May 13, 2003, Peterson had charged $12,000 of the outstanding Moser bill on his personal credit card. Peterson testified that he thought Moser was going to charge him for the entire outstanding balance in one transaction, and that he only discovered later that only $12,000 could be charged to his credit card in one transaction. The referee appears to have credited this testimony. The referee found that Peterson eventually spent the remaining funds on artwork purchased as part of the “spend down.” The director argues that Peterson only had a claim or entitlement to $12,000 at the time he wrote check number 1036, and therefore misappropriated $26,365.

The referee’s conclusion that the director had failed to prove by clear and convincing evidence that Peterson violated rule 1.15(a) is clearly erroneous in light of the referee’s factual findings. While the referee found that Peterson eventually spent the entire $38,365 on behalf of Johnson, the artwork purchased on Johnson’s behalf was not purchased until after the balance of the Moser furniture order was cancelled in September 2003. This leaves several months during which Peterson held, without entitlement, $26,365 of Johnson’s money in a personal account. This constitutes a violation of rule 1.15(a).

2. Misappropriation of $6,275 in September 2003.

After the balance of the Moser furniture order was canceled at the request of Peterson’s wife, Peterson received a refund check from Moser in the amount of $6,275. Peterson deposited this money into one of his personal accounts. Peterson testified that he deposited such money to cover storage costs of Johnson’s property, but he admitted that at the time of the deposit of the refund, Johnson only owed him half of the check’s amount. According to Peterson, the remainder of the check constituted prepayment of “future storage costs.” The director argues that the referee clearly erred in not concluding that this prepayment of storage fees violated rule 1.15(a). Since Peterson, by his own testimony, admitted that he placed Johnson’s money in his personal account before he had a claim of right to it, the referee clearly erred in not concluding that Peterson’s retention of the entire refund check violated rule 1.15(a).

B.

In the petition for revocation of probation and further disciplinary action, the director alleged that Peterson violated rules 8.4(b)-(c) through his purchase of the 1998 Infiniti from Johnson. The alleged violation was based on Peterson’s failure to report the transaction as a sale and his consequent failure to pay state sales tax. While the referee found that Peterson did not engage in self-dealing when he purchased the Infiniti from Johnson, the referee made no conclusion concerning whether the transaction violated Rules 8.4(b)-(c). The director argues that the referee’s failure to find that the purchase of the Infiniti from Johnson violated rules 8.4(b)-(c) was clearly erroneous.

To violate rule 8.4(b), the Infiniti purchase must constitute a criminal act reflecting adversely on Peterson’s fitness as a lawyer; to violate rule 8.4(c), the transaction must entail conduct that involved dishonesty, fraud, deceit, or misrepresentation. When Peterson initially purchased the Infiniti, he and Johnson were both listed on the vehicle’s title (an action that Peterson testified was taken for insurance purposes). Despite the presence of his name on the title, Peterson testified that Johnson was the owner of the vehicle. In the transaction at issue, Peterson paid Johnson for the Infiniti and then removed Johnson’s name from the title. Peterson does not argue that this is not a taxable transaction, and there is no evidence that Peterson paid any sales tax to the state when he purchased the Infiniti from Johnson. But Peterson maintains that he did not know this transaction was taxable and that he sought and acted' according to advice obtained from an employee of the Department of Motor Vehicles.

The director argues that because the referee failed to credit this explanation in regard to Peterson’s failure to pay tax when he purchased the Acura from Johnson, we should assume the referee did not credit this explanation for Peterson’s failure to pay sales tax on the Infiniti. But, as Peterson notes, there are differences between the two transactions which could lead the referee to credit Peterson’s testimony concerning the transfer of the title of the Infiniti from Johnson to Peterson. For example, when Peterson purchased the Infiniti, his name was on the title both before and after the purchase. When Peterson purchased the Acura from Johnson, his name was removed and the title was transferred to a Peterson family partnership. In addition, it appears that no “Affidavit to Correct the Ownership Record of a Motor Vehicle” was submitted when Peterson purchased the Infiniti while such an affidavit was submitted when he purchased the Acura. These differences could impact the referee’s determination regarding whether, when purchasing the Infiniti, Peterson acted dishonestly or in a criminal manner that reflected adversely on his fitness to practice. Given that “we give great deference to a referee’s findings * * * especially in cases where the referee’s findings rest on disputed testimony or in part on respondent’s credibility, demeanor, or sincerity,” Wentzell, 656 N.W.2d at 405, the referee did not clearly err in failing to find that Peterson violated rules 8.4(b)-(c) by failing to pay sales tax when purchasing Johnson’s Infiniti.

III.

The final issue before us is what discipline is appropriate in this case. While a referee’s recommendation for discipline carries great weight, we have final responsibility for determining the appropriate discipline. In re Edinger, 700 N.W.2d 462, 467 (Minn.2005).

After finding Peterson’s disciplinary history to be an aggravating factor, the referee recommended that Peterson be disbarred. The director agrees that disbarment is warranted. Peterson, who argues that his only act of misconduct was being convicted of tax evasion in conneetion with the Acura purchase, requests reinstatement to the practice of law.

“Disciplinary sanctions for professional misconduct are imposed to protect the public and the judicial system, and to deter future misconduct.” In re Crandall, 699 N.W.2d 769, 771 (Minn.2005). In determining the appropriate sanction for attorney misconduct, we consider four factors: “ ‘1) the nature of the misconduct, 2) the cumulative weight of the violations of the rules of professional conduct, 3) the harm to the public, and 4) the harm to the legal profession.’ ” In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004) (quoting In re Singer, 541 N.W.2d 313, 316 (Minn.1996)). While we look to similar cases for guidance, sanctions are determined on a case-by-case basis after examining the acts of misconduct and considering both aggravating and mitigating circumstances. Wentzell, 656 N.W.2d at 408.

Peterson points to Dvorak as a similar case to which we should look when determining the appropriate discipline. In Dvorak, the attorney received a public reprimand as a sanction for the attorney’s guilty plea to the misdemeanor of filing a false tax return. 554 N.W.2d at 401, 403-04. When determining the appropriate discipline, we stated that we would “look to the circumstances surrounding a criminal conviction to see whether a lesser disciplinary sanction is appropriate.” Id. at 404. In examining the circumstances surrounding Dvorak’s conviction, we noted that there appeared to be selective prosecution of Dvorak and that the prosecution accepted her plea to a misdemeanor because of difficulties in proving “outright fraud.” Id. Peterson appears to analogize his conviction for evasion of sales tax to Dvorak’s conviction — he maintains his innocence and argues that he only agreed to submit the case on stipulated facts to avoid prosecution of his wife. But Dvorak is easily distinguished from this case because it involved a conviction occurring in another state and authorities in that state had already determined that no suspension was warranted as a consequence. 554 N.W.2d at 403-04 (noting that “[w]here an attorney has been sanctioned by disciplinary authorities in his or her home state for misconduct occurring in that state, we look first to that state’s determination of the appropriate sanction”).

We consider the severity of Peterson’s misconduct and the aggravating factor of his prior disciplinary history when determining the appropriate discipline. In this case, Peterson committed the following acts of misconduct: (1) engaging in self-dealing when purchasing a client’s property, (2) intentional evasion of state sales tax, (3) making dishonest omissions on two applications for medical assistance, and (4) misappropriation of client funds on two occasions. Peterson has been admonished for professional misconduct connected with his representation of at least six separate clients, and we have determined on two prior occasions that Peterson’s misconduct warranted suspension. We conclude that the appropriate discipline in this case is disbarment. Therefore, we order that Brian J. Peterson be, and hereby is, disbarred.

GILDEA, J., took no part in the consideration or decision of this case.

      . Peterson used the term “spend down” to indicate the sheltering of Johnson's assets pri- or to her application for medical assistance.

      . The OLPR brought a separate petition for disciplinary action against Fraley for his representation of Johnson. Fraley and the director entered into a stipulation under which Fraley agreed to allow the allegations in the petition to be deemed admitted and he and the director jointly recommended a 90-day suspension as the appropriate discipline. We suspended Fraley indefinitely with no possibility of reinstatement for 90 days. In re Fraley, 709 N.W.2d 624, 625 (Minn.2006).

      . This rule provides, in relevant part:
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited *  * by the lawyer's own interest, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected; and
      (2) the client consents after consultation.
      Minn. R. Prof. Conduct 1.7(b), 14 Minn.Stat. 1391-92 (2004) (amended June 17, 2005, eff. Oct. 1, 2005).

      . It is professional misconduct for a lawyer to:

      (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
      Minn. R. Prof. Conduct 8.4(b).

      . It is professional misconduct for a lawyer to:

      le) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
      Minn. R. Prof. Conduct 8.4(c).

      . The exact amount in the pooled trust is somewhat difficult to determine because the trust was maintained as part of Fraley’s client trust account and apparently no distinction was made between funds held by Fraley connected with his legal representation of Johnson and funds held pursuant to the "pooled trust agreement.”

      . The text of the rule is as follows:
      (a) All funds of clients or third persons held by a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable interest-bearing trust accounts as set forth in paragraphs (d) through (g). No funds belonging to the lawyer or law firm shall be deposited therein except as follows:
      (1) funds of the lawyer or law firm reasonably sufficient to pay service charges may be deposited therein;
      (2) funds belonging in part to a client or third person and in part presently or potentially to the lawyer or law firm must be deposited therein.
      Minn. R. Prof. Conduct 1.15(a).

      . Peterson testified at the hearing that he paid approximately $33,000 to his credit card company in June 2003 toward what he believed were the outstanding furniture charges. The referee did not make any finding directly related to this testimony. But, even assuming this testimony is true, Peterson continued to hold a balance of approximately $5,000 of the $38,625 check in a personal account after he made the “furniture payments” to his credit card company. In the absence of any evidence of entitlement to the balance of the check, Peterson’s retention of the $5,000 (even if later spent on artwork purchased as part of the spend down) constitutes a violation of rule 1.15(a).

      . Given our standard of deference to the referee, we decline to hold that the referee clearly erred by not concluding that the two incidents of misappropriation also constituted violations of rule 8.4(c).


author: GILDEA, Justice.

text:
    PINEY RIDGE LODGE, INC., Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. A05-2387.
    Supreme Court of Minnesota.
    July 27, 2006.
    Michael C. Mahoney, Mahoney & Foster, Ltd., Wayzata, MN, for Appellant.
    Mike Hatch, Attorney General, James W. Neher, Assistant Attorney General, St. Paul, MN, for Respondent.
   OPINION

GILDEA, Justice.

Piney Ridge Lodge challenges, by writ of certiorari, the tax court’s dismissal of its appeal. Piney Ridge argues that its February 2005 appeal was timely because it had conversations with an audit supervisor in the Department of Revenue that preserved its right to formally appeal to the tax court. Because there is no evidence in the record indicating that Piney Ridge complied with the statutory procedures for formal or informal appeal, we hold that the tax court properly dismissed an appeal filed well after the 60-day appeal period.

Piney Ridge Lodge, a resort near Pine River, Minnesota, did not file corporate franchise tax returns for 1998, 1999, 2000, and 2001. Pursuant to statutory authority, the Commissioner of the Department of Revenue issued a Notice of Change in Tax to Piney Ridge on September 2, 2003 (Notice), assessing the past-due taxes. With penalties and accrued interest, the commissioner’s assessment totaled $211,057. The Notice stated that it was “an official order of the Commissioner of Revenue determining [Piney Ridge’s] corporate franchise tax liability for the tax periods” 1998, 1999, 2000, and 2001.

The Notice included information about how Piney Ridge could appeal the commissioner’s decision. The Notice provided: “If you disagree with this notice, you have 60 days from the notice date to appeal informally to the Department of Revenue or formally to the Minnesota Tax Court.” Regarding the option of an administrative appeal to the department, the Notice stated:

If you decide to appeal informally to the Department of Revenue, you must prepare a written appeal. Please include a copy of this notice. The appeal should include: your name, address and taxpayer ID number, taxable periods and the amount in question for each period; the items on the notice that you disagree with; a summary of the facts or law you are basing your appeal on; the date of your appeal and the signature of the person who prepared the appeal. Include any information or documentation to support your appeal, and mail it to the office and address listed below.
If you appeal to the Department and your appeal is denied in whole or in part, you will have an additional 60 days to appeal that denial to the tax court.

Sometime after its receipt of the Notice (the record does not disclose precisely when), Piney Ridge entered into conversations with an audit supervisor in the department. On or about December 9, 2004, the department sent Piney Ridge a document titled “Final Notice and Demand for Payment.” This document explained that the department was prepared to file a tax lien against Piney Ridge and to begin a collection action. It also encouraged Piney Ridge to explore an agreement regarding “payment terms” with the department.

On February 11, 2005, Piney Ridge filed a notice of appeal in the tax court. The commissioner moved to dismiss, arguing that because the appeal was filed after the end of the 60-day period for appeal, the tax court lacked jurisdiction to hear Piney Ridge’s appeal. The tax court agreed and dismissed the appeal.

The parties do not dispute the facts that are the basis for the tax court’s order dismissing Piney Ridge’s appeal. Accordingly, our sole task is to determine whether the tax court correctly applied Minnesota law, and our review is de novo. See MinmStat. § 271.10, subd. 1 (2004); Gonzales v. Comm’r of Revenue, 706 N.W.2d 909, 910-11 (Minn.2005); Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn.1998).

The tax system is entirely a statutory creation. State v. Bies, 258 Minn. 139, 149, 103 N.W.2d 228, 236 (1960). We have said that “[t]he legislature has * * * the power to fix the conditions under which [a] tax should be assessed and enforced, and therefore compliance with those conditions is essential if the remedy is not to be lost and the rights are not to cease to exist.” Id. We seek to avoid a forfeiture of the right to appeal when construing a statute, but we have held that statutory time limitations on administrative appeals similar to this one are “strictly construed,” and we have recognized that such time limits are “jurisdictional.” Kearns v. Julebte Originals Dress Co., 267 Minn. 278, 282,126 N.W.2d 266, 269 (1964). We have upheld a tax court dismissal of a challenge to an assessment brought outside statutory time limits. See Benigni, 585 N.W.2d at 54 (“[T]he tax court correctly dismissed Benigni’s claim contesting his 1995 assessments for lack of timeliness.”).

Minnesota law gives taxpayers two avenues for appealing the commissioner’s assessments. Taxpayers may file an appeal with the tax court “within 60 days after notice of the making and filing of an order of the commissioner of revenue.” Minn. Stat. § 271.06, subd. 2. Taxpayers also have the option of filing an administrative appeal with the department within 60 days. Minn.Stat. § 270C.35, subd. 4 (Supp. 2005). An administrative appeal results in a new order from the commissioner “determining] the validity, if any, in whole or part of the appeal.” Minn.Stat. § 270C.35, subds. 6, 8 (2004) (Supp.2005). Taxpayers have 60 days after the department issues an order resolving the administrative appeal to file an appeal with the tax court. Minn.Stat. § 270C.35, subd. 8 (noting that order issued in administrative appeal “is appealable to the Minnesota Tax Court under section 271.06”).

Piney Ridge filed its appeal with the tax court in February 2005 and it purported to appeal from the document it received from the department in December 2004. Appeals to the tax court, however, may be taken only “from any official order of the commissioner of revenue.” Minn.Stat. § 271.06, subd. 1 (Supp.2005). The December 2004 document was not an order from the department that is subject to appeal. By its terms, it is merely a document informing Piney Ridge that the department is about to commence a collection action to recover the assessment the commissioner previously determined to be due.

The Notice, by contrast, tracks the language of the statute and specifically provides that it is an “official order of the Commissioner of Revenue.” Moreover, the subject of the appeal, as set forth in Piney Ridge’s “[ejxplanation of stated reasons for appeal,” was the commissioner’s assessment of delinquent corporate taxes for the years 1998, 1999, 2000 and 2001. This assessment is reflected in the Notice, which is dated September 2, 2003. Accordingly, under Minnesota law, Piney Ridge had 60 days after the Notice to either appeal the assessment to the tax court or file an administrative appeal with the department.

Piney Ridge makes no claim that it filed its appeal with the tax court within 60 days of its receipt of the Notice. Rather, Piney Ridge seems to argue that its discussions with an audit supervisor in the department and its submission of additional information to the department should be deemed to have tolled the time period for perfecting an appeal to the tax court. But the tax law does not provide that discussions or negotiations with the department suspend the appeal period. We note that the legislature has specifically provided for tolling during dispute resolution processes in other statutes. See, e.g., Minn.Stat. § 363A.28, subd. 3 (2004) (“The running of the one-year limitation period is suspended during the time a potential charging party and respondent are voluntarily engaged in a dispute resolution process * * *.”). There is no such tolling provision for tax disputes.

Piney Ridge’s conversations with the audit supervisor could be relevant to the question at hand if those conversations could be construed as an administrative appeal. But there is no merit to such an argument because both the statute and the notice clearly and unambiguously explain that an administrative appeal must be taken in writing. See Minn.Stat. § 270C.35, subd. 4. The record contains no such written appeal to the department.

Piney Ridge cites authority that ambiguous tax statutes should be construed in favor of the taxpayer. See Benda v. Girard, 592 N.W.2d 452, 455 (Minn.1999). But we find no ambiguity in the statutes at issue here. The administrative appeal statute states, “A taxpayer who wishes to seek administrative review must follow the procedures in subdivision 4,” and “the taxpayer must file a written appeal.” Minn. Stat. § 270C.35, subds. 2, 4. In the face of this clear language, we cannot construe oral conversations with an employee in the department to operate as an administrative appeal.

The rights granted and limitations governing administrative appeals are creatures of the legislature. While we are disinclined to divorce a taxpayer from its opportunity to appeal an assessment, there is simply nothing in the record that can be reasonably construed as an effort on Piney Ridge’s part to initiate an administrative appeal in accord with the requirements of the statute. There likewise is nothing in the record to suggest that the department engaged in deception or took some action that was designed to preclude Piney Ridge from pursuing an appeal. Accordingly, we hold that Piney Ridge did not perfect an administrative appeal.

We hold that the tax court did not err in dismissing Piney Ridge’s February 2005 appeal as untimely.

Affirmed.

      . The tax court's dismissal was premised on a determination that the 60-day time limit for tax court appeals provided in Minn.Stat. § 271.06, subd. 2 (2004), is jurisdictional. Under Minn. R. Civ. P. 12.08(c), courts have a duty to dismiss when they lack subject matter jurisdiction. See Minn.Stat. § 271.06, subd. 7 (2004) (stating that the rules of evidence and civil procedure shall govern in tax court proceedings).

      . The Notice, which Piney Ridge admitted it received and reviewed, explained these two options.

      . At the time the Notice of Change in Tax was sent to Piney Ridge, the Department of Revenue administrative review provisions were codified at Minn.Stat. § 289A.65 (2002); the review provisions were recodified as part of a 2005 code-simplification effort, at Minn.Stat. § 270C.35 (Supp.2005). See Act of June 2, 2005, ch. 151, art. 1, §§ 41, 115, 2005 Minn. Laws 1352, 1378-79, 1436.

      .Also, if an appeal is undertaken by the taxpayer and the commissioner fails to make a determination within six months, the taxpayer can appeal to the tax court. Minn.Stat. § 270C.35, subd. 9 (Supp.2005); see Lifer v. Comm’r of Revenue, No. 7417, 2002 WL 31084934, at *3 (Minn. T.C. Sept. 5, 2002) (finding that where no action was taken by the commissioner on taxpayers’ informal appeal for several months, taxpayers had not abandoned their appeal or lost the right to appeal to the tax court).

      . While the record does not include these documents, Piney Ridge asserted in its argument before the tax court that it prepared returns for the years in question and procured an audit of its finances, and submitted this information to the department as part of ongoing discussions with the audit supervisor.

      . In keeping with the statute’s indication that an appeal "need not be in any particular form," Minn.Stat. § 270C.35, subd. 4, the commissioner seems willing to consider any written effort to initiate an informal appeal by the taxpayer. See New Sunrise Beginnings, Inc. v. Comm'r of Revenue, No. 7478, 2003 WL 21729577, at *3 (Minn. T.C. July 3, 2003) (noting that the commissioner construed taxpayer’s letter, sent within appeal period and including relevant documentation, to be a request for an administrative appeal).

      . Piney Ridge does not contest the constitutionality of the statute.

      . We note that we have declined to extend, on grounds of equity, time limits that we have found to be jurisdictional. See Carlson v. Indep. Sch. Dist. No. 623, 392 N.W.2d 216, 223-24 (Minn.1986) (recognizing that equitable tolling was inapplicable in the context of the Minnesota Human Rights Act). We do not reach the question in this case of whether, as a matter of law, equitable tolling applies in the context of an appeal to the tax court. Rather, we decide that equitable tolling is simply not applicable as a factual matter on this record.