Freymiller, Inc. v. State ex rel. Oklahoma Tax Commission ( 2005 )

KENNETH L. BUETTNER, Chief Judge,

dissenting:

¶ 12 In accordance with Oklahoma Tax Commission Rule, OAC 710: 60^4-15, Protestant was a new applicant and was required to estimate mileage. The majority affirms a holding by the ALJ and the Tax Commission that it was proper to attribute a prior applicant/operator’s actual miles to a new applicant. Neither the Tax Commission nor this Court is free to change the rule simply because, in this ease, actual mileage results in higher fees than estimated mileage. This could be the result of all new applicants, where the incentive is to estimate low. If the Tax Commission was concerned with estimates being too low, it presumably could have issued a rule that called for revision (or adjusted as the ALJ stated) of estimates during the first year of a new applicant’s operations based upon actual mileage driven. The rule does not provide for such a result. Taxpayers, like other citizens, are entitled to order their activities in accordance with existing law without fear of retroactive changes. I respectfully dissent.