Walther v. Weatherford Artificial Lift Systems, Inc. , 2015 Ark. LEXIS 430 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CV-14-535
LARRY W. WALTHER, IN HIS Opinion Delivered June 4, 2015
OFFICIAL CAPACITY AS DIRECTOR,
ARKANSAS DEPARTMENT OF APPEAL FROM THE PULASKI
FINANCE AND ADMINISTRATION COUNTY CIRCUIT COURT, SIXTH
APPELLANT DIVISION
[NO. 60CV11-3290]
V.
HONORABLE TIMOTHY DAVIS
WEATHERFORD ARTIFICIAL LIFT FOX, JUDGE
SYSTEMS, INC.
APPELLEE AFFIRMED.
JOSEPHINE LINKER HART, Associate Justice
Appellant, Larry W. Walther, in his official capacity as the Director of the Arkansas
Department of Finance and Administration (ADFA), appeals from the order of the circuit court
finding that “proppants” are “equipment” under Arkansas Code Annotated section 26-52-402
(Repl. 2014) and thus exempt from taxation. We affirm the circuit court’s decision.
According to the circuit court’s order, appellee Weatherford Artificial Lift Systems, Inc.
(Weatherford) provided oil-field services that included hydraulic fracturing to the oil-and-gas
production industry in Arkansas. The proppants, which according to the circuit court’s order
are granular substances used in extracting natural gas from unconventional natural-gas
reservoirs such as the Fayetteville Shale in Arkansas, prevent rock fractures from closing when
used in connection with the hydraulic fracturing of new natural-gas wells. ADFA conducted
an excise-tax audit of Weatherford’s purchases and sales for the period of October 1, 2006,
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through July 31, 2009. ADFA’s assessment included $1,347,096.66 in gross-receipts tax and
interest. Weatherford paid the entire amount, including additional interest accrued, and then
brought this lawsuit to recover the amount paid. A trial was held to determine whether the
proppants were exempt from the gross-receipts tax.
The circuit court entered judgment in favor of Weatherford. The court concluded that
the proppants used by Weatherford are exempt because they constitute equipment as defined
by the statutes and ADFA’s own rules. Further, the circuit court found that ADFA’s Gross
Receipts Tax Rule GR-57(E)(5), which characterized proppants as nonexempt, was invalid
and unenforceable as applied in this case because it was contrary to applicable statutes and cases,
lacked a rational basis, violated the separation-of-powers provision of the Arkansas
Constitution, was arbitrary and capricious, and exceeded the regulatory authority of ADFA.
The circuit court concluded that Weatherford was entitled to judgment in the amount of
$1,356,440.60, with interest.
ADFA appeals. For its first point on appeal, ADFA maintains that proppants do not
constitute equipment. In sum, ADFA argues that proppants are not equipment because they
are not complex tools or devices, with continuing utility, that are used directly in the process
of extracting oil and gas, and further, proppants do not cause a recognizable and measurable
mechanical or chemical action to take place as a necessary and integral part of manufacturing,
without which oil-and-gas production would cease. ADFA’s second point on appeal is that the
circuit court erred in finding that Arkansas Gross Receipts Tax Rule GR-57(E)(5), which
characterized proppants as nonexempt, was invalid and unenforceable as applied to this case.
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Under our statutes, exempt from taxation are “[g]ross receipts or gross proceeds derived
from the sale of tangible personal property consisting of machinery and equipment used
directly in producing, manufacturing, fabricating, assembling, processing, finishing, or
packaging of articles of commerce at manufacturing or processing plants or facilities in the State
of Arkansas[.]” Ark. Code Ann. § 26-52-402(a)(1)(A). “Manufacturing” specifically includes
the extraction of oil and gas. Ark. Code Ann. § 26-52-402(b)(4). The statute exempts “only
the machinery and equipment as shall be used directly in the actual manufacturing or
processing operation at any time from the initial stage when actual manufacturing or processing
begins through the completion of the finished article of commerce and the packaging of the
finished end product.” Ark. Code Ann. § 26-52-402(c)(1)(A). Further, the word “directly”
is “used to limit the exemption to only the machinery and equipment used in actual
production during processing, fabricating, or assembling raw materials or semifinished materials
into the form in which such personal property is to be sold in the commercial market.” Ark.
Code Ann. § 26-52-402(c)(1)(B). The statute further defines the phrase “used directly,” as
“[m]achinery and equipment used in actual production,” including “machinery and equipment
that meet all other applicable requirements and which cause a recognizable and measurable
mechanical, chemical, electrical, or electronic action to take place as a necessary and integral
part of manufacturing, the absence of which would cause the manufacturing operation to
cease.” Ark. Code Ann. § 26-52-402(c)(2)(A)(i). This court has noted that the word
“equipment” has been referred to as an exceedingly elastic term, the meaning of which
depends on context, and has stated, “In sum, we believe it is clear that the General Assembly,
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by the use of the terms machinery and equipment, intended implements, tools or devices of
some degree of complexity and continuing utility.” Ragland v. Dumas, 292 Ark. 515, 520, 732
S.W.2d 118, 120 (1987); see also Weiss v. Chem-Fab Corp., 336 Ark. 21, 26, 984 S.W.2d 395,
397–98 (1999) (same).1
In its findings of fact, the circuit court concluded that the proppants at issue included
silica-sand proppants, cured and uncured resin coated proppants, and ceramic proppants, and
that all proppants were used in establishing new natural-gas wells in the Fayetteville Shale
during the audit period. The circuit court further noted that these Fayetteville Shale wells were
developed using modern horizontal-well and hydraulic-fracturing technologies that rely on the
proppants in order for the wells to be productive.
The court stated that the proppants used by Weatherford were selected by it to conform
to certain industry specifications and to meet the specific requirements of the type of reservoir
involved. The circuit court further noted that hydraulic fracturing created fractures in the
formation that surround the horizontal well bore, and that proppants are selected based on their
ability to form proppant packs to hold the fractures open when the hydraulic-fracturing fluids
are withdrawn and establish permanent channels through which natural gas flows from the
unconventional natural-gas reservoir at the production site through the well bore to the
surface. The court stated that proppants are necessary to extract the natural gas in the
Fayetteville Shale using the horizontal-well and hydraulic-fracturing technology.
1
In 2015, the statute was amended to provide that machinery and equipment “used
directly” in the manufacturing process included “[s]and and other proppants used to complete
a new oil or gas well or to re-complete, redrill, or expand an existing oil or gas well.” 2015
Ark. Act 1125, § 1.
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The circuit court concluded that the proppants, which form proppant packs, are used
directly to extract oil and gas in wells developed using horizontal-well and hydraulic-fracturing
technologies and have a continuing utility and extended useful life that corresponds to the
production life of each well. The circuit court also concluded that the proppants, which form
proppant packs, cause a recognizable and measurable mechanical action in holding fractures
open in order for the natural gas to flow from the unconventional reservoir to the surface. The
court also found that the proppants are reactive to each other to the extent that they form
proppant packs and therefore have an ancillary chemical action. The court noted that “[w]hite
silica sands selected and processed for use as proppants are less prone to failure than brown sand
because of the monocrystalline as opposed to polycrystalline structure, and are selected based
on their respective physical characteristics and ability to meet production requirements at the
well sites.” The court further noted that “[r]esin coated proppants and ceramic proppants are
also designed and selected for use based on their respective physical characteristics and
production requirements at the well sites.” The court found that “[p]roppants which form
proppant packs have a degree of complexity, possess continuing utility, and are not fully
integrated in another object.” The circuit court concluded that the “proppants are used directly
in manufacturing . . . as a necessary and integral part of the process, and their absence would
cause the manufacturing operation to cease.”
Tax-exemption cases are reviewed de novo on appeal, and the findings of fact of the
trial court are not set aside unless they are clearly erroneous. Weiss v. Bryce Co., LLC, 2009
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Ark. 412, at 3, 330 S.W.3d 756, 757.2 In Ragland, this court considered whether a contractor’s
gravel furnished to build temporary roads can be viewed as equipment used directly in the
process of extracting oil. Ragland, 292 Ark. at 520, 732 S.W.2d at 120. This court concluded
that “equipment” was defined as “implements, tools or devices of some degree of complexity
and continuing utility.” Id., 732 S.W.2d at 120. Applying this definition, the court rejected
the contention that the gravel at issue was equipment because the gravel “become[s] fully
integrated into a temporary road, the utility of which ends upon the termination of each
oil-extraction project.” Id. We note, however, that this court did not specify the degree of
complexity, only that there be “some degree of complexity.” Further, the gravel became
integrated into the road, not the oil-extraction project itself, and the utility of the road ended
at the conclusion of the project.
Subsequently, in Weiss v. Chem-Fab Corp., 336 Ark. 21, 984 S.W.2d 395 (1999), this
court held that chemicals used to manufacture aircraft parts constituted “equipment.” In
Chem-Fab, this court referred to the two-part definition established in Ragland and looked at
(1) whether the chemicals constituted “implements, tools or devices of some degree of
complexity” and (2) whether the chemicals had “continuing utility.” On the first point, the
court concluded that the chemicals were implements because they served as instruments or
tools to soften metal or to mill away excess metal. Moreover, the court determined that
2
While this court has previously stated that a taxpayer had to establish an entitlement
to an exemption from taxation beyond a reasonable doubt, in April 2009 the General
Assembly changed the standard of proof for the taxpayer to clear and convincing evidence.
See Weiss, 2009 Ark. 412, at 3–4, 330 S.W.3d at 757–58. We further note that in 2015, the
burden of proof was changed to a preponderance of the evidence. 2015 Ark. Acts 896, § 3.
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chemicals are, by their very nature, complex substances. The court also found that the
chemicals possessed “continuing utility” and therefore satisfied the second part of the test; the
chemicals were used directly in the process of manufacturing a number of different parts, and
the chemicals were not fully integrated into some other object, the utility of which was
confined to an individual project. Id. at 26–27, 984 S.W.2d at 398. Thus, in Chem-Fab, the
chemicals were equipment because they were used to manufacture a number of parts without
being integrated into the part.
In Bryce Co., LLC, the question posed was whether “stickyback tape” used in its
printing process constituted equipment. This court considered the two-part-equipment
definition set out in Ragland as well as the statutory requirement that the equipment be used
directly in the manufacturing or processing operation. In concluding that the stickyback tape
at issue was subject to the tax exemption, this court stated:
We conclude that the stickyback tape in the present case meets these
case-law-based criteria as well as the regulatory definition of equipment and the simple
statutory requirement that the alleged equipment be “used directly in the actual
manufacturing or processing operation.” § 26–52–402(c)(1)(A). As noted above, the
word “equipment” is “an exceedingly elastic term, the meaning of which depends on
context.” Ragland, 292 Ark. at 520, 732 S.W.2d at 120.
Here, the tape possesses some degree of complexity, as described by site
manager Swain, in that it is cross-hatched to permit proper airflow and of a specific
thickness and softness to provide for even printing. A given segment of tape is used
over as much as one million linear feet, and even though it must eventually be
discarded, it can be—and sometimes is—retained and reused for smaller printing jobs.
Finally, the statute declares that, for an item to be “used directly” in the manufacturing
process, it must “cause a recognizable and measurable mechanical, chemical, electrical,
or electronic action to take place as a necessary and integral part of manufacturing, the
absence of which would cause the manufacturing operation to cease.”
§26–52–402(c)(2)(A)(i). Without the stickyback tape, the mechanical process of
printing the polyethylene packaging could not be accomplished. Accordingly, we
conclude that the circuit court did not err in determining that the stickyback tape was
equipment that was exempt from sales taxes.
Bryce Co., LLC, 2009 Ark. 412, at 11–12, 330 S.W.3d at 761–62.
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Thus, in Bryce Co., LLC, the tape was deemed complex because of its physical
characteristics. Furthermore, the discarding of the tape did not mean that it was not
equipment, as the court noted its continuing utility over one million feet and its possible re-
use.
With this case law in mind, we turn to the merits. The evidence presented by
Weatherford supports the circuit court’s findings and refutes ADFA’s claims that proppants are
not equipment because they are not complex tools or devices, with continuing utility, that are
used directly in the process of extracting oil and gas, and do not cause a recognizable and
measurable mechanical or chemical action to take place as a necessary and integral part of
manufacturing, without which oil-and-gas production would cease. To summarize the
evidence from one witness, Weatherford established that proppants are used directly in the
process of extracting oil and gas by presenting testimony that proppants are used during each
stage of the hydraulic-fracturing process and that proppants are necessary to perform the type
of hydraulic fracturing that is performed in the Fayetteville Shale. Relating to complexity,
Weatherford also presented testimony that proppants are not just a load of sand that can be
picked up anywhere and used; rather, proppants are high-purity silica that is mined, washed,
and sized for consistency. In addition, Weatherford presented testimony that the physical
characteristics of the proppants are very important and are tested. As for continuing utility,
Weatherford presented testimony that the proppants are injected into a well and are used for
the life of the well, potentially several years, and that while the proppants remain in the well
during and after use, they are not absorbed into the rock formation. With regard to the
mechanical action, Weatherford presented testimony that the proppants change the direction
of the flow of the gas in the well and increase the speed of the flow. Further, Weatherford
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presented additional testimony from another witness that the proppants produce a physical and
mechanical action by preventing the fracture from closing and by directing the flow of the gas;
possess a certain degree of complexity; have a continuing utility for the life of a well; and do
not become part of the well itself. The same witness testified that without proppants,
production would cease in the Fayetteville Shale. Given this evidence, we cannot say that the
trial court clearly erred in concluding that the proppants in the present case were equipment.
ADFA’s second point on appeal is that the circuit court erred in finding that Arkansas
Gross Receipts Tax Rule GR-57(E)(5), which characterized proppants as nonexempt, is
invalid and unenforceable as applied to this case. However, as explained above, there is
sufficient evidence to affirm the trial court’s finding that proppants are equipment. An
administrative regulation cannot be contrary to a statute. Pledger v. C.B. Form Co., 316 Ark.
22, 30, 871 S.W.2d 333, 337 (1994). Therefore, we affirm the trial court’s finding that Rule
GR-57(E)(5) is invalid and unenforceable as applied in this case because it is contrary to the
applicable statutory provisions. Thus, we need not address the circuit court’s remaining reasons
for finding the rule invalid and unenforceable.
Affirmed.
HANNAH, C.J., and DANIELSON and WYNNE, JJ., dissent.
ROBIN F. WYNNE, Justice, dissenting. I believe the majority errs in failing to
acknowledge the presumption in favor of the taxing power of the state, and I would reverse.
Therefore, I respectfully dissent.
Prior to Act 300 of 2014, the statute at issue in this case, Arkansas Code Annotated
section 26-52-402, did not include sand and other proppants in its list of items that constituted
machinery and equipment specifically exempted from the gross-receipts tax. It did provide,
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“The Director of the Department of Finance and Administration may promulgate rules and
regulations for the orderly and efficient administration of this section.” Ark. Code Ann.
§ 26-52-402(d). The Director promulgated Arkansas Gross Receipts Tax Rule GR-57(E)(5),
which characterized proppants as nonexempt. In my view, this was a reasonable
interpretation of the statute at issue based on our case law. While hydraulic fracturing is
clearly a complex process, and preparing sand to be used in that process may also be
considered somewhat complex, the sand itself is not an implement, tool, or device “of some
degree of complexity.” Ragland v. Dumas, 292 Ark. 515, 520, 732 S.W.2d 118, 120 (1987).
This court has held that “[t]here is a presumption in favor of the taxing power of the
state, and all tax-exemption provisions must be strictly construed against the exemption.”
Weiss v. Bryce Co., LLC, 2009 Ark. 412, at 3, 330 S.W.3d 756, 757. This court has frequently
reiterated the phrase “to doubt is to deny the exemption.” Id. (citing, e.g., Citifinancial Retail
Servs. v. Weiss, 372 Ark. 128, 133, 271 S.W.3d 494, 498 (2008); Pledger v. C.B. Form Co., 316
Ark. 22, 25, 871 S.W.2d 333, 334 (1994); Pledger v. Baldor Int’l, 309 Ark. 30, 33, 827 S.W.2d
646, 648 (1992)). Here, strictly construing the statute against the exemption, I would hold
that the circuit court clearly erred in finding that proppants constitute exempt equipment
under the Gross Receipts Act and reverse.
For the reasons outlined above, I respectfully dissent.
HANNAH , C.J., and DANIELSON , J., join.
Susan E. Nichols, Revenue Legal Counsel, for appellant.
Dover Dixon Horne PLLC, by: Michael G. Smith and Michael O. Parker, for appellee.
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