On December 19, 2019, the Kentucky Supreme Court found in favor of the state of Ohio on its motion to dismiss a suit brought by a taxpayer in Kentucky state court against the State of Ohio. The taxpayer received an assessment for Ohio commercial activity tax (CAT) from the Ohio Department of Taxation, based on its sales of goods that were delivered to Ohio addresses. The taxpayer protested the assessment with the Ohio State Tax Commissioner. One month after filing its protest with Ohio, the taxpayer brought suit against the State of Ohio and the Ohio State Tax Commissioner in Greenup Circuit Court in Kentucky, seeking a declaratory judgment that it was not subject to the Ohio CAT, monetary relief under 42 U.S.C. § 1983 for forced collection of taxes not owed, and a determination under Kentucky law that it would be inequitable to require the taxpayer to defend an action in a foreign state. Ohio filed a motion to dismiss the complaint based on sovereign immunity, qualified immunity, comity, lack of personal jurisdiction, and failure of the taxpayer to exhaust administrative remedies. After the circuit court denied Ohio’s motion to dismiss, Ohio filed an appeal with the Kentucky Court of Appeals, and the Kentucky Supreme Court granted Ohio’s request for a transfer of its interlocutory appeal. The Kentucky Supreme Court reversed the trial court’s order denying Ohio’s motion to dismiss, holding that Ohio is protected by sovereign immunity against claims seeking declaratory as well as monetary relief; the Ohio State Tax Commissioner is immune from suit in his official capacity; and finally, based on principles of comity, the Kentucky Supreme Court dismissed the taxpayer’s claims against the Ohio State Tax Commissioner in his personal capacity. Ohio v. Great Lakes Minerals, Inc., Dkt. No. 2018-SC-000161-TG, 2019 WL 6971565 (Ky. Dec. 19, 2019).
