TAX FOUNDATION OF HAWAI'I, a Hawai'i non-profit corporation, on behalf of itself and those similarly situated, Plaintiff-Appellant,
STATE OF HAWAI'I, Defendant-Appellee.
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-16-0000462;
CIV. NO. 15-1-2020-10)
Alston and Lori King Stibb for appellant
Nakatsuji and Nathan S.C. Chee for appellee Michael A.
Lillyfor amicus curiae
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
Tax Foundation of Hawai'i challenges the State of
Hawai'i's implementation of Hawai'i Revised
Statutes (HRS) § 248-2.6 (Supp. 2015), which authorizes
the State to be reimbursed for its costs in administering a
rail surcharge on state general excise and use taxes on
behalf of the City and County of Honolulu. More specifically,
the issues on appeal are: (1) whether we lack jurisdiction
because this is a "controversy with respect to
taxes" under HRS § 632-1; (2) whether Tax
Foundation has standing to bring its challenge; (3) whether
the State violated HRS § 248-2.6 by retaining 10% of the
gross proceeds of the surcharge without calculating the
actual cost of administering the surcharge; and (4) whether
the State's application of HRS § 248-2.6 is
conclude that: (1) the circuit court had jurisdiction to hear
Tax Foundation's claims because its complaint was not a
"controversy with respect to taxes" within the
meaning of HRS § 632-1; (2) Tax Foundation has
standing; (3) the State did not violate HRS §
248-2.6 by retaining 10% of the gross proceeds of the
surcharge; and (4) the State's application of HRS §
248-2.6 does not violate the Hawai'i or United States
Constitutions. Accordingly, we vacate the circuit court's
order and judgment granting the State's motion to dismiss
for lack of jurisdiction, and remand this case to the circuit
court with instructions to grant the State's motion for
summary judgment on the merits.
2005, the legislature enacted Act 247, authorizing counties
to impose a surcharge of up to 0.5% on state general excise
and use taxes. 2005 Haw. Sess. Laws Act 247, §§ 3-4
at 770-72. The purpose of Act 247 was to allow counties to
levy surcharges "to fund public transportation
systems." Id., § 1 at 770. The county
surcharges are levied, assessed, collected, and otherwise
administered by the Department of Taxation (DOTAX).
Id., § 3 at 771. After collecting the
surcharge, DOTAX transmits the funds to the State Department
of Budget and Finance (Budget and Finance), which deposits
them into special accounts. Id., § 5 at 773.
After deducting and withholding costs as specified in HRS
§ 248-2.6,  Budget and Finance disburses the remaining
balance to each applicable county's Director of Finance.
Id., § 5 at 773.
Proceedings in the Circuit Court 
Tax Foundation's Complaint
October 21, 2015, Tax Foundation of Hawai'i (Tax
Foundation) filed a class action on behalf of all taxpayers
in the City and County of Honolulu. The complaint
alleged that after Act 247 was enacted, the City
and County of Honolulu enacted Ordinance 05-027, imposing a
surcharge on state general excise and use taxes (Honolulu
County surcharge). Tax Foundation asserted the following
about the surcharge. Honolulu is the only county to have
adopted such a surcharge. Budget and Finance has retained
of the Honolulu County surcharge amounts collected by DOTAX
since it was initially levied, and disbursed the remaining
90% to the City and County of Honolulu. During the fiscal
years ending June 30, 2012, 2013, 2014, and 2015, Budget and
Finance retained approximately $21.2, $19.3, $24.2, and $24.8
million, respectively, which went to the State general fund.
As of December 31, 2015, the cumulative total of the
State's surcharge withholdings was $177, 865, 487.24.
Foundation also alleged that the State violated HRS §
248-2.6(d) by retaining 10% of the City and County of
Honolulu's surcharge gross proceeds without calculating
the actual costs of administering it. Tax Foundation alleged that
the 10% retained by the State "grossly exceed[ed]"
the costs incurred to assess, collect, and dispose of the
Honolulu County surcharge funds. Tax Foundation further
alleged that City and County of Honolulu taxpayers were
required to pay a higher state tax than taxpayers of other
counties as a result of the State's failure to follow HRS
§ 248-2.6, that the State had violated the general laws
provision in Article VIII, § 1 of the Hawai'i
Constitution, and violated the equal protection clauses of
the Hawai'i and United States Constitutions.
Foundation sought declaratory, injunctive, and mandamus
relief. In Count I, Tax Foundation sought an "order
enjoining the State from continuing to violate"
constitutional provisions and injunctive relief in the form
of reimbursements, to the plaintiffs "and/or" the
City and County of Honolulu, of amounts "improperly kept
by the State." In Count II, Tax Foundation sought
"mandamus directing the State to follow HRS §
248-2.6(d), and deduct and withhold only the cost of
administering the Oahu surcharge and to pay the remaining
balance of the 10% county surcharge initially withheld to
The State's Motion to Dismiss
State filed a motion to dismiss the complaint, asserting: (1)
the circuit court lacked jurisdiction because HRS §
632-1 (1993) prohibits declaratory relief in
"'any controversy' with respect to taxes,"
(2) mandamus and injunctive relief was not warranted because
HRS §§ 40-35 (Supp. 2006) and 232-14.5 (Supp.
2006) provided adequate and exclusive remedies
for tax disputes in tax appeal court, and (3) Tax Foundation
lacked standing. Regarding the relief sought by Tax
Foundation, the State argued that "any taxpayer can pay
a tax under protest and file suit for a refund under section
40-35, HRS, or timely file a tax refund claim and appeal from
a denial of the refund claim to the Tax Appeal Court under
section 232-14.5, HRS."
Tax Foundation's Opposition to the State's
Motion to Dismiss
Foundation opposed the State's motion to dismiss, arguing
that the circuit court had subject matter jurisdiction
because its complaint did not challenge the assessment or
collection of taxes, but rather sought to correct mishandling
after assessment and collection of the Honolulu County
surcharge. Tax Foundation argued that the matter was not a
"tax controversy" or an attack on the State's
ability to collect taxes, and was instead an attempt to force
the State to comply with HRS § 248-2.6.
Foundation analogized to the ICA opinion in Hawaii
Insurers Council v. Lingle, where the ICA held that HRS
§ 632-1's prohibition on actions regarding taxes did
not apply because the plaintiff was not attempting to keep
the State from assessing and collecting taxes. 117
Hawai'i 454, 184 P.2d 769 (App. 2008), aff'd in
part and rev'd in part on other grounds, 120
Hawai'i 51, 201 P.3d 564 (2008).
Foundation also changed its position regarding the relief it
was requesting. Although Tax Foundation initially sought
reimbursement to itself "and/or" the City and
County of Honolulu in its complaint, in its opposition, it
stated that it "does not seek any refund for itself or
any other taxpayer." Tax Foundation argued that since it
did not seek a declaratory ruling as to its own liability for
taxes, and only sought to have the State pay its excess
surcharge withholdings to the City and County of Honolulu,
its claim did not belong in tax appeal court.
Foundation asserted that it had standing because it paid
general excise tax on income derived from fundraising that it
conducted to support its activities. As to the injury
suffered, Tax Foundation argued that if the State returned
the excess funds it had diverted to the City and County of
Honolulu, the Honolulu surcharge "could end
sooner." Tax Foundation argued that this injury was
traceable to the State's actions, and was redressable,
asserting that "the State could, if it chose, determine
the costs" of administering the Honolulu County
Motions for Summary Judgment
Foundation filed a motion for summary judgment, and argued,
inter alia, that the "plain and unambiguous
language of HRS § 248-2.6" supported its
interpretation, and that the State's reading of HRS
§ 248-2.6 is unconstitutional and forces the City and
County of Honolulu taxpayers to subsidize the rest of the
cross-motion for summary judgment, the State argued: (1) the
circuit court lacked jurisdiction over Tax Foundation's
claims, (2) HRS § 248-2.6 expressly requires that the
State retain 10% of the Honolulu County surcharge, (3)
retention of 10% does not violate the equal protection
clause, (4) retention of 10% is consistent with the general
laws provision of the state constitution, and (5) Tax
Foundation was challenging a "policy decision" and
should seek a statutory amendment from the legislature.
Hearing on the Motions
hearing on the various motions, the circuit court found that
Tax Foundation's complaint presented a controversy
arising out of a tax, and that it lacked jurisdiction over
the dispute based on HRS § 632-1, stating that HRS
§ 632-1 "broadly implies many controversies that
can arise out of a tax." Tax Foundation orally requested
leave to amend its complaint to clarify that the declaratory
relief it sought was not subject to HRS § 632-1's
prohibition against tax controversies. The circuit court
denied the request. The circuit court also determined that it
lacked authority to impose mandamus relief on another branch
of government. Thus, the circuit court granted the
State's motion to dismiss, and did not reach the issue of
whether Tax Foundation had standing. The court further ruled
that the cross-motions for summary judgment were moot.
circuit court subsequently filed its written order granting
the State's motion to dismiss. The order stated:
The court, having read the memoranda in support and in
opposition to the motion and the declarations filed
therewith, and having heard the arguments of counsel, and
based on the records and files herein and for good cause
shown, GRANTS Defendant STATE OF HAWAII'S Motion to
Dismiss Complaint Filed on October 21, 2015 (Filed on
November 10, 2015) for the reason that Plaintiff s claims for
relief are barred by section 632-1, Hawai'i Revised
Statutes, because Plaintiff's complaint constitutes or
involves "a controversy with respect to taxes," and
thus this court lacks subject matter jurisdiction.
Plaintiff's request for leave to amend their complaint
filed on October 21, 2015 is denied for the reason that the
Court has dismissed the Plaintiff s complaint.
The parties' cross motions for summary judgment filed on
January 21, 2016, and March 3, 2016, respectively are,
therefore moot, given the Court's decision to grant
Defendant's motion to dismiss the complaint.
Final judgment was entered on June 1, 2016.
Foundation timely appealed, seeking review of the circuit
court's judgment and order granting the State's
motion to dismiss. We granted Tax Foundation's subsequent
request to transfer the appeal to this court.
Tax Foundation's Opening Brief
Foundation raises three points of error. Tax Foundation
argues that the circuit court erred in: (1) granting the
State's motion to dismiss on the basis that it had no
jurisdiction because the complaint sought declaratory relief
involving a controversy with respect to taxes, (2) not
granting Tax Foundation's motion for summary judgment,
and (3) not allowing Tax Foundation the opportunity to amend
the first point of error, Tax Foundation argues "[t]his
is NOT a dispute over taxes." (Capitalization in
original). Tax Foundation asserts that its claim "arises
from, and involves, only what the State does
after the Surcharge has been assessed, collected,
and deposited into the State's coffers." (Emphasis
in original). Tax Foundation emphasizes the portion of HRS
§ 632-1 providing that controversies involving the
interpretation of statutes are not prohibited.Tax Foundation
argues that HRS § 632-1 allows a declaratory ruling on
the proper interpretation of HRS § 248-2.6 because such
declaratory relief would not affect the State's ability
to assess or collect the general excise tax or the Honolulu
Foundation also argues that the tax appeal court's
limited jurisdiction would not include the claims in its
complaint. HRS § 232-13 limits the jurisdiction of the
tax appeal court to determining "'the amount of
valuation or taxes, as the case may be, in
dispute[.]'" The liability for paying the general
excise tax or Honolulu County surcharge is undisputed;
therefore, Tax Foundation argues, the tax appeal court does
not have jurisdiction over this case.
the second point of error, Tax Foundation asserts that HRS
§ 248-2.6 is "clear and unambiguous[, ]" and
mandates that the State should retain only the costs it
incurs in administering the Honolulu County surcharge.
the third point of error, Tax Foundation argues that the
circuit court abused its discretion in not allowing it
"at least one opportunity to amend" its complaint.
Tax Foundation cites Hawai'i Rules of Civil Procedure
(HRCP) Rule 15(a) (2) and case law stating that in the
absence of an apparent or declared reason, such as undue
delay, bad faith, or dilatory motive, leave to amend should
be freely given.
Answering Brief, the State argues: (1) the circuit court
correctly dismissed the case for lack of subject matter
jurisdiction because it is a tax controversy under HRS §
632-1, (2) the circuit court correctly denied Tax
Foundation's request for mandamus relief, (3) Tax
Foundation does not have standing, (4) Tax Foundation
improperly argues the merits of the case, (5) the State
should prevail on the merits, and (6) the circuit court did
not abuse its discretion in denying Tax Foundation's oral
motion to amend its complaint. The State also argues that Tax
Foundation is "[a]sking the court to interfere with a
statute . . . [which] violates the separation of powers at
the heart of our system of government."
subject matter jurisdiction, the State argues that the plain
language of HRS § 632-1 supports dismissal, because HRS
§ 632-1 applies to "'any controversy with
respect to taxes'" instead of being limited to the
assessment or collection of taxes. The State asserts that
interpretations of the federal Declaratory Judgment Act and
Tax Anti-Injunction Act protect not just assessment and
collection, but "any activities that are intended to or
may culminate in the assessment or collection of
taxes[.]" The State argues that Tax Foundation's
lawsuit "may ultimately culminate in the
'collection' of the State's portion of the taxes
State also argues that this type of case belongs in tax
appeal court rather than in circuit court. The State argues
that the tax appeal court has jurisdiction to hear: (1)
"'taxpayer appeals from assessments'"
pursuant to HRS Chapter 232, (2) "'challenges to
taxes paid under protest'" pursuant to HRS §
40-35, (3) "'adverse rulings by the Director,
'" and (4) appeals from the denial of refund claims
by DOTAX pursuant to HRS § 232-14.5. The State also
argues that, even if the court finds that this case is not a
"controversy with respect to taxes," the circuit
court lacks jurisdiction because the tax appeal statutes in
HRS Chapter 232 provide a "'special form of
remedy' specific to tax cases" that must be followed
according to HRS § 632-1.
State argues that it is appropriate for an appellate court to
rule on the standing issue presented in the State's
motion to dismiss, asserting that standing is a
jurisdictional matter that the court must address as a
threshold matter. The State further asserts that Tax
Foundation does not satisfy the first and third prongs of the
Sierra Club v. Hawai'i Tourism Authority, 100
Hawai'i 242, 59 P.3d 877 (2002) (plurality opinion) test
the merits, the State argues that although "it would be
improper for this Court to decide this case on the merits
when the circuit court did not have an opportunity to address
the merits first[, ]" if this court decides to address
the merits, the State should prevail as a matter of law based
on the rules of statutory construction, legislative intent,
and principles of statutory interpretation.
Tax Foundation's Reply Brief
Reply Brief, Tax Foundation argues: (1) the circuit court had
jurisdiction pursuant to the ICA's decision in Hawaii
Insurers Council, (2) Tax Foundation has standing, (3)
the State misreads HRS § 248-2.6, (4) the State's
interpretation of HRS § 248-2.6 is not consistent with
the intent of the legislature, and (5) the circuit court
erred in not allowing Tax Foundation to amend its complaint
and amendment would not be futile.
Standards of Review
Existence of Jurisdiction and Dismissal for Lack of
existence of jurisdiction is a question of law that we review
de novo under the right/wrong standard." Lingle
v. Hawai'i Gov't Employees Ass'n, AFSCME,
Local 152, 107 Hawai'i 178, 182, 111 P.3d 587, 591
trial court's dismissal for lack of subject matter
jurisdiction is a question of law, reviewable de
novo." Casumpang v. ILWU, Local 142, 94
Hawai'i 330, 337, 13 P.3d 1235, 1242 (2000) (emphasis
removed) (citing McCarthy v. United States, 850 F.2d
558, 560 (9th Cir. 1988)).
Our review [of a motion to dismiss for lack of subject matter
jurisdiction] is based on the contents of the complaint, the
allegations of which we accept as true and construe in the
light most favorable to the plaintiff. Dismissal is improper
unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.
Casumpang, 94 Hawai'i at 337, 13 P.2d at 1242
(citations and quotation marks omitted).
issue of standing is reviewed de novo on appeal."
Mottl v. Miyahira, 95 Hawai'i 381, 388, 23 P.3d
716, 723 (2001) (citation omitted).
interpretation of a statute is a question of law reviewable
de novo." Peer News LLC v. City & Cty.
of Honolulu, 138 Hawai'i 53, 60, 376 P.3d 1, 8
review questions of constitutional law de novo,
under the right/wrong standard." State v.
Kalaola, 124 Hawai'i 43, 49, 237 P.3d 1109, 1115
(2010) (citation omitted).
appeal, the grant or denial of summary judgment is reviewed
de novo." First Ins. Co. of Hawai'i v.
A&B Properties, 126 Hawai'i 406, 413-14, 271
P.3d 1165, 1172-73 (2012) (citation omitted). Furthermore,
[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and inferences drawn therefrom in the light most
favorable to the party opposing the motion.
Id. (citation omitted) (brackets in original).
The Relief Requested by Tax Foundation Does Not Constitute a
Tax Refund Claim
first address whether the circuit court had subject matter
jurisdiction to adjudicate Tax Foundation's complaint.
The tax appeal court has exclusive jurisdiction over tax
refund claims. HRS §§ 232-13 and 232-14.5(a), (c).
HRS § 232-13 states that the jurisdiction of the tax
appeal court is limited to disputes about the "amount of
valuation or taxes." HRS § 232-14.5(a) provides
that a denial of a tax refund claim by DOTAX "may be
appealed by the filing of a written notice of appeal to a
board of review or the tax appeal court[, ]" and
subsection (c) provides that "this section shall apply
to tax refund claims for all taxes administered by the
department of taxation." The circuit court therefore
does not have jurisdiction over tax refund claims, and only
the tax appeal court may consider tax refund claims.
State argues that Tax Foundation seeks a tax reimbursement to
itself and class members, and as such, presents a tax refund
controversy over which the tax appeal court has exclusive
jurisdiction. Tax Foundation, however, now only seeks
reimbursement to the City and County of Honolulu. Initially,
Tax Foundation's complaint effectively sought a partial
tax refund by requesting reimbursement to itself, its class
members, "and/or" the City and County of Honolulu
of the allegedly improperly kept surcharge funds. However,
Tax Foundation later disclaimed any refund remedy for itself
and its class members in its opposition to the State's
motion to dismiss, leaving only the City and County of
Honolulu to recover. Therefore, taxpayer liability is not in
the tax appeal court's jurisdiction is limited to
determining "the amount of valuation or taxes, as the
case may be, in dispute[, ]" HRS § 232-13, and here
there is no dispute about any taxpayer's tax liability,
Tax Foundation cannot bring its claim before the tax appeal
court. Tax Foundation's dispute concerns only the
post-collection disposition of the surcharge funds.
Accordingly, the circuit court is not barred from hearing Tax
Foundation's claim based on HRS § 232-14.5.
HRS § 632-1 Does Not Bar Subject Matter Jurisdiction in
parties dispute whether the circuit court correctly dismissed
this case for lack of subject matter jurisdiction under HRS
§ 632-1, which prohibits declaratory judgment actions in
any "controversy with respect to
taxes[.]"Tax Foundation and the State make
arguments related to the portions of HRS § 632-1
In cases of actual controversy, courts of record, within the
scope of their respective jurisdictions, shall have power to
make binding adjudications of right, whether or not
consequential relief is, or at the time could be, claimed,
and no action or proceeding shall be open to objection on the
ground that a judgment or order merely declaratory of right
is prayed for; provided that declaratory relief may not
be obtained in any district court, or in any controversy with
respect to taxes, or in any case where a divorce or
annulment of marriage is sought. Controversies involving the
interpretation of deeds, wills, other instruments of writing,
statutes, municipal ordinances, and other governmental
regulations, may be so determined, and this
enumeration does not exclude other instances of actual
antagonistic assertion and denial of right.
HRS § 632-1 (emphasis added).
has held that HRS § 632-1's tax exclusion provision
prohibits declaratory relief in tax matters, in order to
"permit the government to assess and collect taxes
alleged to be due it without judicial interference."
Hawaii Insurers Council v. Lingle, 117 Hawai'i 454,
463, 184 P.2d 769, 778 (App. 2008) (citation and quotation
marks omitted), aff'd in part and rev'd in part
on other grounds, 120 Hawai'i 51, 201 P.3d 564
(2008). In Hawaii Insurers Council, an insurance
trade association challenged the constitutionality of a
statute that permitted the Director of Finance to transfer
funds from the Compliance Resolution Fund, into which
assessments imposed on insurers were deposited, to the
State's General Fund. Id. at 457, 184 P.3d at
772. The circuit court determined that it lacked jurisdiction
because the lawsuit violated the prohibition against
declaratory relief actions in tax controversies under HRS
§ 632-1. Id. at 458, 184 P.3d at 773. The ICA
determined that the transfer of funds operated as a tax, but
rejected the argument that the matter was a prohibited
"controversy with respect to taxes" under HRS
§ 632-1. Id. at 463, 184 P.3d at 778. The ICA
noted that HRS § 632-1 was amended in 1972 to mirror the
tax exclusion in the federal Declaratory Judgment Act, which
"prohibits declaratory relief in tax matters to permit
the government to assess and collect taxes alleged to be due
it without judicial interference." Id.
determined that the Insurers Council was not attempting to
keep the State from assessing and collecting taxes, but
rather challenging the transfer of proceeds on the ground
that they were unconstitutional taxes. Id. Because
the constitutional challenge did not interfere with the
government's assessment or collection of taxes, the ICA
concluded that the case was not a "controversy with
respect to taxes" within the meaning of HRS § 632-1
or HRCP Rule 57. Id.
previously indicated, HRS § 632-1 was amended in 1972 to
mirror the tax exception in the federal Declaratory Judgment
Act, 28 U.S.C. § 2201. 1972 Haw. Sess. Laws Act 89,
§ 1 at 338. We therefore turn to federal case law
interpreting the Declaratory Judgment Act's tax
Cohen v. United States, 650 F.3d 717, 719 (D.C. Cir.
2011), appellants argued that the refund procedure created by
the Internal Revenue Service for taxpayers to recoup money
from an illegal tax on phone calls was unlawful. The Court of
Appeals for the District of Colombia rejected a broad
interpretation of the Declaratory Judgment Act's tax
exclusion, which would have precluded all suits
"conceivably 'with respect to Federal
taxes.'" Id. at 730. The court looked to
the legislative history of the Declaratory Judgment Act,
which stated that "the orderly and prompt determination
and collection of Federal taxes should not be interfered
with." Id. (quoting S. Rep. No. 74-1240, at 11
(1935)). The court also considered precedent stating that the
interpretation of the Declaratory Judgment and
Anti-Injunction Acts was coextensive, and ultimately
determined that "'with respect to Federal taxes'
means 'with respect to the assessment or collection of
taxes.'" Id. at 727 (citing E. Kentucky
Welfare Rights Org, v. Simon, 506 F.2d 1278, 1284 (D.C.
Cir. 1974); Ecclesiastical Order of the ISM of AM, Inc.
v. I.R.S., 725 F.2d 398, 404-05 (6th Cir. 1984); In
re Leckie Smokeless Coal Co., 99 F.3d 573, 583-84 (4th
Cir. 1996); Perlowin v. Sassi, 711 F.2d 910, 911
(9th Cir. 1983); McCabe v. Alexander, 526 F.2d 963
(5th Cir. 1976); Tomlinson v. Smith, 128 F.2d 808,
811 (7th Cir. 1942)). Since the suit did not affect the
assessment or collection of the tax, the Declaratory Judgment
Act did not limit the court's jurisdiction. Id.
at 736; see also Direct Marketing Ass'n v.
Brohl, 135 S.Ct. 1124 (2015) (constitutional challenge
to statutory reporting requirements preceding the assessment
and collection of taxes was not barred).
persuaded by the D.C. Circuit Court's interpretation of
the federal Declaratory Judgment Act, and the reasoning of
the ICA. Accordingly, we adopt the ICA's holding in
Hawaii Insurers Council that declaratory relief may
be obtained in tax matters under HRS § 632-1 where such
relief does not interfere with the assessment or collection
relief may be obtained here because Tax Foundation's
claim does not interfere with the government's ability to
assess or collect either the general excise and use tax, or
the Honolulu County surcharge. A ruling in Tax
Foundation's favor would not impact DOTAX's ability
to assess or collect these taxes because Tax Foundation does
not dispute its liability to pay general excise and use tax,
or the Honolulu County surcharge. Tax Foundation contests
only the "administration and allocation" of the
Honolulu County surcharge after it is assessed and
this is not a "controversy with respect to taxes"
and the exclusionary provision does not apply because only
suits that would restrain the assessment and collection of
taxes fall within the scope of HRS § 632-1. The circuit
court therefore had jurisdiction and erred in dismissing on
TWO: TAX FOUNDATION HAS HRS ...