Exxon Mobil Corp. v. State, Department of Revenue , 2009 Wyo. LEXIS 152 ( 2009 )

HILL, Justice,

dissenting.

[¶70] I respectfully dissent because I conclude that the majority opinion accords neither the Department of Revenue (DOR) nor the Board of Equalization (BOE) the full benefit of the applicable standards of review. Neither does it apply a complete statement of the applicable principles of statutory construction for revenue statutes such as those at issue here.

[¶71] -It is my view that the heart of this controversy is best understood if the following circumstances are noted at the commencement of our discussion. The fair market value of natural gas for severance and ad valorem tax purposes is determined "after the production process is completed." Wyo. Stat. Ann. § (LexisNexis 2009). Wyo. Stat. Ann. § 39-14-208(b)(iv) provides:

The production process for natural gas is completed after extracting from the well, gathering, separating, injecting and any other activity which occurs before the outlet of the initial dehydrator. When no dehydration is performed, other than within a processing facility, the production process is completed at the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever occurs first.] [Emphasis added.]

[¶72] Determining the point of valuation is of particular significance because "expenses incurred by the producer prior to the point of valuation are not deductible in determining the fair market value of the [natural gas]." Wyo. Stat. Ann. § Thus, because certain expenses "downstream" of the point of valuation are deductible, it is to the producer's benefit to have the point of valuation determined "upstream" as far as possible. That is the instant case in a nutshell. Here Exxon seeks an "upstream" point of valuation instead of the "downstream" point of valuation determined by the DOR and confirmed by the BOE. See Williams Production RMT Co. v. State Dept. of Revenue, 2005 WY 28, ¶¶ 9-10, 107 P.3d 179, 183-84 (Wyo.2005).

[¶73] The majority concludes that these words in § 89-14-208(b)(iv) are ambiguous:

§ 39-14-2083. Imposition.

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(b) Basis of tax. The following shall apply:

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(iv) The production process for natural gas is completed after extracting from the well, gathering, separating, injecting and any other activity which occurs before the outlet of the initial dehydrator. When no dehydration is performed, other than within a processing facility, the production process is completed at the inlet to the initial transportation related compressor, custody transfer meter or processing facility, whichever occurs first;

The majority begins its analysis by reciting the standard of review we apply in matters adjudicated under the Administrative Procedures Act. See Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009) and Dale v. S & S Builders, 2008 WY 84, T 22, 188 P.3d 554, 561 (Wyo.2008). I include the entire statement of that standard of review because that cited by the majority is incomplete and, perhaps, just a bit misleading:

Thus, in the interests of simplifying the process of identifying the correct standard of review and bringing our approach closer to the original use of the two standards, we hold that henceforth the substantial evidence standard will be applied any time we review an evidentiary ruling. When the burdened party prevailed before the agency, we will determine if substantial evidence exists to support the finding for that party by considering whether there is relevant evidence in the entire record which a reasonable mind might accept in support of the agency's conclusions. If the hearing examiner determines that the burdened party failed to meet his burden of proof, we will decide whether there is substantial evidence to support the agency's decision to reject the evidence offered by the burdened party by considering whether that conclusion was contrary to the overwhelming weight of the evidence in the record as a whole. See, Wyo. Consumer Group v. Public Serv. Comm'n of Wyo., 882 P.2d 858, 860-61 (Wy0.1994); Spiegel, 549 P.2d at 1178 (discussing the definition of substantial evidence as "contrary to the overwhelming weight of the evidence "). If, in the course of its decision making process, the agency disregards certain evidence and explains its reasons for doing so based upon determinations of credibility or other factors contained in the record, its decision will be sustainable under the substantial evidence test. Importantly, our review of any particular decision turns not on wheth-er_ we agree with the outcome, but on whether the agency could reasonably conclude as it did, based on all the evidence before it. [Emphasis added.]

Questions of law are reviewed de novo. Id. at v 26, 188 P.3d 561-62. The majority bypasses the substantial evidence part of this standard of review by characterizing the issue here as one of "statutory construction" and, thus, a pure question of law. The core of my dissent, in this regard, centers on the cireumstance that we historically bave applied a much more complex standard of review when addressing decisions made by the BOE. This is so because it exercises a unique role under the Wyoming Constitution and statutes. Wyo. Const. art. 15, § 10; Wyo. Stat. Ann. $ 89-11-102.1 (LexisNexis 2009). The responsibilities assigned to the BOE include:

§ 39-11-102.1. Administration; board of equalization. state

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(iv) Decide all questions that arise with reference to the construction of any statute affecting the assessment, levy and collection of taxes, in accordance with the rules, regulations, orders and instructions pre-seribed by the department [of revenue]:

(A) Upon application of any person adversely affected; or

(B) In performing its responsibilities to equalize values, including with respect to the suitability of the system prescribed by the department for establishing fair market value.

Wyo. Stat. Ann. § 89-11-102.1(c)(iv).

[T 75] The following constitutes one of the expanded standards of review we have applied when considering decisions rendered by the DOR and/or the BOE:

With regard specifically to valuations of property by DOR for purposes of taxation, we have recently noted:

The Department's valuations for state-assessed property are presumed valid, accurate, and correct. This presumption can only be overcome by credible evidence to the contrary. In the absence of evidence to the contrary, we presume that the officials charged with establishing value exercised honest judgment in accordance with the applicable rules, regulations, and other directives that have passed public serutiny, either through legislative enactment or agency rule-making, or both.

The petitioner has the initial burden to present sufficient eredible evidence to overcome the presumption, and a mere difference of opinion as to value is not sufficient. If the petitioner successfully overcomes the presumption, then the Board is required to equally weigh the evidence of all parties and measure it against the appropriate burden of proof. Onee the presumption is successfully overcome, the burden of going forward shifts to the DOR to defend its valuation. The petitioner, however, by challenging the valuation, bears the ultimate burden of persuasion to prove by a preponderance of the evidence that the valuation was not derived in accordance with the required constitutional and statutory requirements for valuing state-assessed property.

Moreover, in examining the propriety of the valuation method, our task is not to determine which of the various appraisal methods is best or most accurately estimates fair market value; rather, it is to determine whether substantial evidence exists to support usage of the chosen method of appraisal.

Colorado Interstate Gas Company v. Wyoming Department of Revenue, 2001 WY 34, ¶¶ 9-11, 20 P.3d 528, ¶¶ 9-11 (Wyo.2001) (citations omitted).

Airtouch Communications, Inc. v. Department of Revenue, State of Wyo., 2003 WY 114, ¶ 12, 76 P.3d 342, 348 (Wyo.2003); Amoco Production Co. v. Dept. of Revenue, 2004 WY 89, ¶¶ 7-8, 94 P.3d 430, 435-36 (Wyo.2004).

[¶76] I accept and acknowledge that when it comes to the construction of statutes this Court has the last word. Ordinarily, however, we defer to the construction espoused by the DOR and BOE unless it is contrary to the words of the governing statutes at issue:

In determining whether these statutes are ambiguous it is helpful to note the construction the Department placed on the statutes which it is charged with administering. This Court has previously held that an ageney's interpretation of the statutory language which the agency normally implements is entitled to deference, unless clearly erroneous. Buehner Block Co. v. Wyo. Dep't of Revenue, 2006 WY 90, ¶ 11, 139 P.3d 1150, 1153 (Wyo.2006). Moreover, this Court generally defers to the construction placed on a statute by the agency that is charged with its execution, provided that construction does not conflict with the legislature's intent. Qwest, ¶ 8, 130 P.3d at 511; see also Loberg v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2004 WY 48, ¶ 9, 88 P.3d 1045, 1049 (Wyo.2004) (one measure of a statute's meaning is the interpretation placed on it by the agency charged with its administration); State ex rel. Sublette County Bd. of County Comm'rs v. State, 2001 WY 91, ¶ 16, 33 P.3d 107, 113 (Wyo.2001).

Wyoming Dept. of Revenue v. Exxon Mobil Corp., 2007 WY 112, ¶ 31, 162 P.3d 515, 526 (Wyo.2007). Many jurisdictions afford much greater deference to constructions placed on statutes by administrative bodies, especially in matters involving revenue and taxation. As a general rule, because of the complexity of taxation issues, significant deference is given to a body such as the BOE. 3A Norman J. Singer, Statutes and Statutory Construction, § 66:4 (Effect of administrative interpretation) (6th ed. 2008); and see Airtouch Communications, ¶ 13, 76 P.3d at 348 ("Further, in part because of the complex nature of taxation, we have found there is a presumption the assessment was done correctly by DOR acting in its official capacity."); also see State v. Hanover Compression, LP, 2008 WY 138, ¶¶ 8-15, 196 P.3d 781, 784-87 (Wyo.2008). I reject the majority's conclusion that because the industry and the DOR have different views as to what an "initial dehydrator" and a "processing facility" are that the statute is, therefore, ambiguous and this Court is at liberty to resolve the difference of opinion between DOR and Exxon. My examination of the findings of the BOE, especially TT 77-85, convinces me that the DOR correctly identified the Black Canyon facility as an "initial dehydrator," even though it may also perform some other miscellaneous functions.

[¶77] The majority also employs a very general rule to the effect that revenue statutes must be strictly construed in favor of the taxpayer. We have applied this general principle frequently over the years, but seldom has our analysis exceeded the most simplistic application of that aphorism. See 8A Norman J. Singer, Statutes and Statutory Construction, supra, § 66:1 (Strict construction of statutes creating taxes). However, the continuation of that commonly cited rule is this:

But the revenue legislation must also be reasonably construed so that their underlying purpose is not destroyed. Where an interpretation places undue importance on words subordinate to the plainly apparent objective of a statute in order to reward persons who resort to some unusual or not reasonably to be expected procedure, the court should not accept that interpretation. It should be remembered that when a tax statute is clear and unambiguous there is no necessity to apply the rules of strict construction.

[¶78] 8A Norman J. Singer, Statutes and Statutory Construction, supra, § 66:2 (Reasonable construction of revenue laws) posits this more temperate view of the construction of revenue statutes:

The long range objective of all tax measures is to promote a stable social order by providing financial support to cover the expenses of the government and its programs. Although different forms of taxation may sometimes produce individual hardships, an overly biased interpretation of tax laws for the benefit of the taxpayer may result in the loss of revenue at the expense of the government and operate to the disadvantage of others contributing to its support. Furthermore, no other field of legislation receives as much attention. There are frequent amendments and revisions that afford assurance that the statutes cover the subject fully and with precision. This means that courts do not spend as much time interpreting tax legislation as one might anticipate. Because of this, a reasonable construction of tax statutes, i.e., a construction so conditioned by an a prio-ri bias against collectibility of the tax has sometimes been preferred.

As stated by one court: "The better rule, and the one we adopt, is that statutes imposing taxes and providing means for the collection of the same should be construed strictly in so far as they may operate to deprive the citizen of his property by summary proceedings or to impose penalties or forfeitures upon him; but otherwise tax laws ought to be given a reasonable construction, without bias or prejudice against either the taxpayer or the state, in order to earry out the intention of the legislature and further the important public interests which such statutes subserve."

[¶79] I am unable to agree that, in the light of modern views of revenue laws, the somewhat antiquated principle of construing tax legislation strictly in favor of the taxpayer plays a significant role in cireumstances such as these. Exxon is easily one of the most sophisticated taxpayers on Earth and Wyoming is likely one of the very smallest revenue collectors that Exxon has to deal with in its efforts to avoid taxation.

[¶80] Finally, I do not agree with the majority's conclusion that the DOR and the BOE applied the proportionate profits method incorrectly. In this regard, I rely on the findings of the BOE order, ¶¶ 141-147 and 187-210.

[¶81] For the reasons set out above, I would affirm the BOE's order.