In McClain v. Sav-On Drugs, the Supreme Court today holds that consumers who assert they were incorrectly charged sales tax — technically, a sales tax reimbursement to the seller that pays the tax — cannot require the seller to demand a refund from the state. The court’s unanimous opinion by Justice Goodwin Liu declines to extend its 1974 decision authorizing a customer to sue when the state has already adopted specific rules to provide refunds to overpaying customers. Such a suit is a “judicially created remedy [that] is available only when the issue of taxability has already been resolved,” and even then “only rarely.” The court also concludes that the absence of that remedy here doesn’t violate the consumers’ due process rights nor does it effect an unconstitutional taking.

The court says aggrieved consumers are not without remedies because they can urge the state’s taxing authority to initiate an audit or a deficiency determination, or they can challenge in court the validity of any tax regulation.

Although all seven justices sign the court’s opinion, a majority of four issues its own concurrence. (That happens occasionally.) Authored by Justice Leondra Kruger (and signed by Justices Carol Corrigan and Ming Chin and pro tem Justice Kathleen O’Leary), the separate opinion cautions against treating as prerequisites to a lawsuit the pursuit of the alternate remedies mentioned in the court’s opinion, because taking those steps still might not be enough. Justice Kruger writes that “any cause of action to compel retailer refund suits will create a certain amount of tension with a statutory scheme that presumes goods are taxable [citation], and empowers the retailer to waive a potentially applicable tax exemption if it so chooses.”

The court affirms the Second District, Division Eight, Court of Appeal.