Woodmen of the World v. Nebraska Dept. of Rev.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/16/2018 01:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
WOODMEN OF THE WORLD v. NEBRASKA DEPT. OF REV.
Cite as 299 Neb. 43
Woodmen of the World Life Insurance Society,
a Nebraska not-for-profit fraternal benefit
society, appellant, v. Nebraska Department
of R evenue, an agency of the State of
Nebraska, and Tony Fulton, Tax
Commissioner, appellees.
___ N.W.2d ___
Filed February 16, 2018. No. S-17-319.
1. Administrative Law: Judgments: Appeal and Error. In an appeal
under the Administrative Procedure Act, an appellate court may reverse,
vacate, or modify the judgment of the district court for errors appearing
on the record.
2. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Statutes: Appeal and Error. The interpretation
of statutes and regulations presents questions of law, in connection with
which an appellate court has an obligation to reach an independent con-
clusion irrespective of the decision made by the court below.
4. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
5. Statutes: Appeal and Error. Absent a statutory indication to the con-
trary, an appellate court gives words in a statute their ordinary meaning.
6. Statutes. A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be rejected
as superfluous or meaningless.
7. ____. Statutes relating to the same subject matter will be construed
so as to maintain a sensible and consistent scheme, giving effect to
every provision.
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WOODMEN OF THE WORLD v. NEBRASKA DEPT. OF REV.
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8. Taxation: Proof. The burden of showing entitlement to a tax exemp-
tion is on the applicant.
9. Statutes: Taxation. Statutory tax exemption provisions are to be
strictly construed, and their operation will not be extended by judi-
cial construction.
10. ____: ____. An exemption from taxation must be clearly authorized by
the relevant statutory provision.
11. Taxation: Presumptions. An exemption from taxation is never
presumed.
12. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
13. Taxation: Words and Phrases. Sales and use taxes are imposed on
the activity of retail transactions, measured by gross receipts. It is a tax
upon the sale, lease, rental, use, storage, distribution, or other consump-
tion of tangible personal property in the chain of commerce.
14. Taxation: Sales. A sales tax is not imposed on the article sold, but,
rather, upon the transaction called the sale.
15. Taxation: Words and Phrases. Both occupation taxes and sales taxes
are excise taxes for the purpose of raising revenue. An excise tax is a
tax imposed on the manufacture, sale, or use of goods or on an occupa-
tion or activity, and is measured by the extent to which a privilege is
exercised by the taxpayer, without regard to the nature or value of the
taxpayer’s assets. An excise tax is imposed upon the performance of
an act.
16. Statutes: Taxation. The plain language of Neb. Rev. Stat. § 44-1095
(Reissue 2010) exempts taxes on the “funds” of a fraternal benefit soci-
ety, but it does not exempt the fraternal benefit society from sales and
use taxes, because such taxes are imposed on its retail purchase activity,
not on its funds.
17. Due Process. The first step in a due process analysis is to identify a
property or liberty interest entitled to due process protections. If there
is a protected interest at stake, the question then becomes what process
is due.
18. ____. The fundamental requirement of due process is the opportunity to
be heard at a meaningful time and in a meaningful manner.
19. Trial: Expert Witnesses: Appeal and Error. A trial court’s ruling in
receiving or excluding an expert’s testimony which is otherwise relevant
will be reversed only when there has been an abuse of discretion.
20. Expert Witnesses: Evidence. Expert testimony is relevant and admis-
sible only if it tends to help the trier of fact understand the evidence or
determine a fact issue, and expert testimony concerning a question of
law does not tend to accomplish either of these goals. Consequently,
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WOODMEN OF THE WORLD v. NEBRASKA DEPT. OF REV.
Cite as 299 Neb. 43
expert testimony concerning a question of law is generally not admis-
sible in evidence.
21. Trial: Expert Witnesses: Testimony: Statutes. Expert testimony from
legal scholars on the proper legal interpretation of statutes is generally
irrelevant and should not reach a judge’s attention by way of the wit-
ness stand.
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Affirmed.
Mark E. Novotny, John M. Walker, and Daniel J. Hassing, of
Lamson, Dugan & Murray, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and L. Jay Bartel
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Stacy, J.
This appeal requires us to determine whether the Legislature
has exempted fraternal benefit societies from sales and use
taxes imposed by the State of Nebraska. Woodmen of the
World Life Insurance Society (Woodmen) requested an exemp-
tion from sales and use taxes and sought a refund of more
than $2 million in such taxes previously paid. The Nebraska
Department of Revenue (NDOR) denied Woodmen’s request,
and after a hearing, the Tax Commissioner affirmed that
denial. Woodmen sought judicial review, and the district court
affirmed. Because we agree no statute exempts fraternal ben-
efit societies from paying sales and use tax, we affirm the
judgment of the district court.
I. FACTS
1. General Background
Nebraska’s statutes regulating and relating to fraternal ben-
efit societies are codified at Neb. Rev. Stat. §§ 44-1072 to
44-10,109 (Reissue 2010 & Cum. Supp. 2016). A fraternal
benefit society is defined to include:
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WOODMEN OF THE WORLD v. NEBRASKA DEPT. OF REV.
Cite as 299 Neb. 43
Any incorporated society, order, or supreme lodge,
without capital stock, . . . conducted solely for the benefit
of its members and their beneficiaries and not for profit,
operated on a lodge system with ritualistic form of work,
having a representative form of government, and which
provides benefits in accordance with sections 44-1072 to
44-10,109 . . . .1
Fraternal benefit societies operate “for one or more social,
intellectual, educational, charitable, benevolent, moral, fra-
ternal, patriotic, or religious purposes for the benefit of its
members.”2 They may enter into contracts to provide benefits
to their members, including death, endowment, annuity, dis-
ability, medical, and life insurance benefits.3 A fraternal benefit
society may “invest its funds only in such investments as are
authorized by the laws of this state for the investment of assets
of life insurers.”4 All assets must be held, invested, and dis-
bursed for the use and benefit of the society.5
It is undisputed that Woodmen is a Nebraska fraternal
benefit society. The primary issue in this appeal is whether
Woodmen is exempt from paying Nebraska sales and use taxes.
The answer to this question generally requires consideration
of two statutes: § 44-1095 and Neb. Rev. Stat. § 77-2704.12
(Reissue 2009).
(a) § 44-1095
With two exceptions not relevant here, the “funds” of a
fraternal benefit society are exempt from taxation pursuant
to § 44-1095 (Reissue 2010) which, until recently, provided:
“Every [fraternal benefit society] shall be a charitable and
benevolent institution, and all of its funds shall be exempt
1
§ 44-1072.
2
§ 44-1076.
3
§ 44-1087.
4
§ 44-1092.
5
§ 44-1093.
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WOODMEN OF THE WORLD v. NEBRASKA DEPT. OF REV.
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from all and every state, county, district, municipal, and school
tax other than taxes on real estate and office equipment.”
The version of § 44-1095 quoted above was in effect when
Woodmen applied for the tax exemption and refund at issue
in this appeal, and we confine our analysis to this statutory
language. However, for the sake of completeness, we note the
Legislature amended the statute in 2015.6 Section 44-1095 now
provides that “all of [a charitable benefit society’s] funds and
property shall be exempt from all and every state, county, dis-
trict, municipal, and school tax.”7
(b) § 77-2704.12(1)
The Nebraska Revenue Act of 19678 imposes a sales tax on
the gross receipts of retail sales of tangible personal property
sold in this state9 and a use tax when tangible personal property
purchased outside of Nebraska is stored, used, or consumed in
Nebraska.10 Generally speaking, the sales tax applies when tan-
gible personal property is purchased in Nebraska and the use
tax applies when it is purchased outside Nebraska.11
The Legislature has exempted certain sales and uses
from taxation.12 As relevant to this appeal, certain nonprofit
organizations are exempt from sales and use taxes under
§ 77-2704.12(1). The nonprofit organizations enumerated in
§ 77-2704.12(1) include, for example, those created exclusively
6
See 2015 Neb. Laws, L.B. 414, § 1 (operative January 1, 2016).
7
§ 44-1095 (Cum. Supp. 2016) (emphasis supplied). See, also, Neb. Rev.
Stat. § 77-202(1)(d)(iii)(B) (Cum. Supp. 2016) (adding “fraternal benefit
society” to enumerated exemptions for property owned by “charitable
organization”).
8
See Neb. Rev. Stat. § 77-2701 (Supp. 2017).
9
See Neb. Rev. Stat. § 77-2703(1) (Supp. 2017).
10
§ 77-2703(2).
11
Interstate Printing Co. v. Department of Revenue, 236 Neb. 110, 459
N.W.2d 519 (1990).
12
See, generally, Neb. Rev. Stat. §§ 77-2704.02 to 77-2704.30 (Reissue
2009, Cum. Supp. 2016 & Supp. 2017).
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for religious purposes,13 private educational institutions,14 hos-
pitals and health clinics,15 and certified organizations provid-
ing community-based services for persons with disabilities.16
To be exempt from sales and use tax, an “organization listed
in [§ 77-2704.12(1)]” must apply for exemption using forms
provided by the Tax Commissioner and, if approved, a cer-
tificate of exemption is issued.17 Fraternal benefit societies are
not listed among the nonprofit organizations enumerated in
§ 77-2704.12(1).
2. Procedural Background
In October 2013, Woodmen filed an application for exemp-
tion from sales and use tax with NDOR, relying exclusively
on § 44-1095. Woodmen used a standard NDOR form to seek
the exemption. Because the standard form did not identify
§ 44-1095 as a basis for seeking exemption from sales and use
tax, Woodmen attached a letter explaining its position. NDOR
denied Woodmen’s application using a standard letter which
also did not reference § 44-1095. Instead, the reason given for
denying the exemption was that Woodmen did not qualify as
a religious organization. NDOR gave this reason because it
concluded that of the available nonprofit exemptions, that one
“fit the closest.”
In January 2014, Woodmen filed a claim for overpayment,
seeking a refund of more than $2 million in sales and use
tax, again relying on § 44-1095. NDOR denied this claim.
Woodmen petitioned for redetermination of both its exemption
application and its reimbursement claim. In response, counsel
for NDOR sent Woodmen a letter explaining the legal basis for
NDOR’s conclusion that § 44-1095 did not exempt Woodmen
13
§ 77-2704.12(1)(a).
14
§ 77-2704.12(1)(c).
15
§ 77-2704.12(1)(e)(i) and (ii).
16
§ 77-2704.12(1)(h).
17
§ 77-2704.12(2).
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WOODMEN OF THE WORLD v. NEBRASKA DEPT. OF REV.
Cite as 299 Neb. 43
from sales and use tax. The parties agreed to consolidate
Woodmen’s requests and hold a single hearing before the Tax
Commissioner on both the application for an exemption and
the claim for overpayment.
Prior to such hearing, the parties conducted discovery,
exchanged exhibit and witness lists (including witnesses’
expected testimony), and met to discuss the legal bases for
their differing positions. The parties also filed prehearing
motions that were ruled on by the hearing officer. As relevant
to the issues on appeal, the hearing officer sustained NDOR’s
motion in limine to exclude the testimony of Woodmen’s
expert witness, a tax law professor. The hearing officer rea-
soned that although the professor was an accomplished and
recognized legal scholar, his opinions on the proper interpreta-
tion of Nebraska law were more properly characterized as legal
argument than testimony. The hearing officer invited Woodmen
to include the tax law professor’s opinions in its posthearing
briefing, but did not permit the professor to testify.
(a) Tax Commission Hearing
The hearing before the Tax Commissioner was held April
13, 2015. The rules of evidence were not invoked.18 The par-
ties stipulated that Woodmen was a fraternal benefit society,
that it timely submitted both its application for an exemption
and its request for a refund, and that both were properly before
the hearing officer. The Tax Commissioner observed that
because the parties presented no factual disputes: “Resolution
of this dispute depends entirely upon the answer to the fol-
lowing question of law: Is the language of § 44-1095 suffi-
cient in itself to confer [on Woodmen] an exemption from the
Nebraska sales and use taxes . . . .?”
Evidence was adduced, and Woodmen made an offer of
proof regarding the tax law professor’s excluded testimony.
After posthearing briefing, the Tax Commissioner entered an
18
See 316 Neb. Admin. Code, ch. 33, § 12.04A (2010) (request to be bound
by rules of evidence must be served 3 days before hearing).
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WOODMEN OF THE WORLD v. NEBRASKA DEPT. OF REV.
Cite as 299 Neb. 43
order finding Woodmen was not exempt from sales and use tax
under § 44-1095, and thus was not entitled to a refund.
The Tax Commissioner’s order analyzed each party’s prof-
fered definitions of the term “funds” in § 44-1095, and ulti-
mately rejected them all. Instead, he determined the meaning of
“funds” by considering how the term was used in other statutes
governing fraternal benefit societies.19 The Tax Commissioner
noted that under § 44-1093(2), fraternal benefit societies are
authorized to “create, maintain, invest, disburse, and apply
any special fund or funds necessary to carry out any purpose
permitted by the laws of such society.” Relying on § 44-1093,
the Tax Commissioner concluded that “funds” under § 44-1095
must refer to “those same special funds allowed in § 44-1093.”
He thus reasoned that fraternal benefit societies were not
exempt from sales and use taxes under § 44-1095, because that
exemption applies only to taxes imposed on the “special funds
themselves, not to the actions or transactions taken with respect
to the funds.”
(b) Administrative Appeal
Woodmen sought judicial review of the Tax Commissioner’s
final decision pursuant to the Administrative Procedure Act.20
The Lancaster County District Court conducted a de novo
review and affirmed the Tax Commissioner’s denial of the
exemption and refund.
After noting that fraternal benefit societies are not among
the nonprofit organizations exempt from sales and use tax
under § 77-2704.12(1), the district court confined its analysis
to whether the language of § 44-1095 conferred an exemption
from Nebraska sales and use tax.
First, the district court rejected Woodmen’s argument that
§ 44-1095 conferred an entity-based tax exemption on fraternal
benefit societies generally, as opposed to an exemption on just
19
See §§ 44-1092 and 44-1093.
20
See Neb. Rev. Stat. §§ 77-27,128 (Reissue 2009) and 84-917 (Reissue
2014).
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its funds. The district court noted the difference between the
language used in § 44-1095 and the language used in statutes
that provide entity-based tax exemptions21 and concluded that
a plain reading of § 44-1095 indicated the Legislature intended
to confer a tax exemption on the “funds” of a fraternal benefit
society, but not on the entity itself.
Next, like the Tax Commissioner, the district court looked
to other statutes governing fraternal benefit societies to discern
the meaning of “its funds” in § 44-1095. The court observed
that under § 44-1092, a fraternal benefit society is authorized
to invest “its funds” only in certain investments, and that under
§ 44-1093, a society may “create, maintain, invest, disburse,
and apply any special fund or funds” necessary to carry out
its permitted statutory purpose. Harmonizing these statutes,
the district court reasoned that the “funds” exempted under
§ 44-1095 must be the same funds referenced in §§ 44-1092
and 44-1093.
Finally, the court examined the essential nature of sales
and use taxes, including this court’s opinion in Anthony, Inc.
v. City of Omaha,22 and concluded that sales and use taxes
are “‘a tax upon the privilege of buying tangible personal
property’” and not a tax on funds. The district court reasoned
that the tax exemption on funds in § 44-1095 did not apply to
taxes on the retail transactions of fraternal benefit societies.
As such, the court generally concluded there was no conflict
between §§ 44-1095 and 77-2704.12(1), in that the former
addressed exemptions for taxes on particular funds, while the
latter addressed exemptions for taxes on retail transactions.
Alternatively, the district court reasoned that if the two statutes
21
Compare § 44-1095, with Neb. Rev. Stat. § 44-4232 (Reissue 2010)
(“[t]he [Comprehensive Health Insurance Pool Distributive Fund] shall
be exempt from any and all taxes assessed by the State of Nebraska”),
and Neb. Rev. Stat. § 44-2715 (Reissue 2010) (“[t]he [Nebraska Life and
Health Insurance Guaranty Association] shall be exempt from payment of
all fees and all taxes levied by this state . . . except taxes levied on real
property”).
22
Anthony, Inc. v. City of Omaha, 283 Neb. 868, 813 N.W.2d 467 (2012).
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were in conflict, then § 77-2704.12(1), as the more specific
statute applying to sales and use tax, would control over the
general exemption in § 44-1095.
The district court also addressed—and found meritless—sev-
eral procedural and evidentiary errors assigned by Woodmen.
As relevant to the errors assigned before this court, the dis-
trict court rejected Woodmen’s claims that it was denied due
process before the Tax Commissioner, and found no merit to
Woodmen’s argument that the tax law professor should have
been permitted to testify as an expert witness at the hearing.
Woodmen timely appealed from the district court’s order,
and we granted its petition to bypass the Nebraska Court
of Appeals.
II. ASSIGNMENTS OF ERROR
Woodmen assigns, restated, that the district court erred in
failing to find Woodmen was (1) exempt from sales and use
taxes under § 44-1095, (2) entitled to a refund for sales and
use taxes previously paid, (3) denied due process when NDOR
changed its rationale for denying the exemption, and (4) enti-
tled to present expert testimony on the proper interpretation
§ 44-1095.
III. STANDARD OF REVIEW
[1,2] In an appeal under the Administrative Procedure Act,
an appellate court may reverse, vacate, or modify the judgment
of the district court for errors appearing on the record.23 When
reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.24
23
Bridgeport Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 N.W.2d
600 (2012).
24
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
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[3] The interpretation of statutes and regulations presents
questions of law, in connection with which an appellate court
has an obligation to reach an independent conclusion irrespec-
tive of the decision made by the court below.25
IV. ANALYSIS
[4-7] This appeal involves statutory interpretation, and our
analysis is guided by familiar principles. In construing a stat-
ute, a court must determine and give effect to the purpose and
intent of the Legislature as ascertained from the entire language
of the statute considered in its plain, ordinary, and popular
sense.26 Absent a statutory indication to the contrary, an appel-
late court gives words in a statute their ordinary meaning.27 A
court must attempt to give effect to all parts of a statute, and if
it can be avoided, no word, clause, or sentence will be rejected
as superfluous or meaningless.28 Statutes relating to the same
subject matter will be construed so as to maintain a sensible
and consistent scheme, giving effect to every provision.29
[8-11] And because the statute at issue involves a tax
exemption, our analysis is guided by additional principles.
The burden of showing entitlement to a tax exemption is on
the applicant.30 Statutory tax exemption provisions are to be
strictly construed, and their operation will not be extended
by judicial construction.31 An exemption from taxation must
25
Bridgeport Ethanol v. Nebraska Dept. of Rev., supra note 23.
26
J.S. v. Grand Island Public Schools, supra note 24.
27
DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015); Coffey
v. Planet Group, 287 Neb. 834, 845 N.W.2d 255 (2014).
28
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015); Holdsworth
v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).
29
In re Interest of Katrina R., 281 Neb. 907, 799 N.W.2d 673 (2011);
Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011).
30
Lackawanna Leather Co. v. Nebraska Dept. of Rev., 259 Neb. 100, 608
N.W.2d 177 (2000).
31
See Archer Daniels Midland Co. v. State, 290 Neb. 780, 861 N.W.2d 733
(2015).
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be clearly authorized by the relevant statutory provision.32 An
exemption from taxation is never presumed.33
With these principles in mind, we consider the relevant
statutes to determine whether Woodmen, as a fraternal benefit
society, is exempt from sales and use tax under Nebraska law.
1. § 77-2704.12(1) Does Not Exempt
Woodmen From Sales and Use Tax
Section 77-2704.12(1) provides that sales and use taxes
“shall not be imposed” on certain nonprofit entities, and it
lists the types of nonprofit organizations subject to this exemp-
tion. Fraternal benefit societies are not among the enumerated
nonprofit entities identified in § 77-2704.12(1), and Woodmen
does not claim to fit the description of any other organization
enumerated in that subsection.
An exemption from taxation must be clearly authorized by
the relevant statutory provision.34 There is nothing in the plain
language of § 77-2704.12 that exempts fraternal benefit soci-
eties from sales and use taxes, and the district court correctly
concluded Woodmen is not exempt under this statute.
2. § 44-1095 Does Not Exempt Woodmen
From Sales and Use Tax
Section 44-1095 provided: “Every [fraternal benefit society]
shall be a charitable and benevolent institution, and all of its
funds shall be exempt from all and every state, county, district,
municipal, and school tax other than taxes on real estate and
office equipment.”
In urging a construction of this statutory language that
excludes it from paying sales and use taxes, Woodmen gen-
erally presents two theories. First, Woodmen argues that
§ 44-1095 creates an entity-based exemption that necessarily
includes sales and use taxes. Alternatively, Woodmen argues
32
See Bridgeport Ethanol v. Nebraska Dept. of Rev., supra note 23.
33
Lackawanna Leather Co. v. Nebraska Dept. of Rev., supra note 30.
34
See Bridgeport Ethanol v. Nebraska Dept. of Rev., supra note 23.
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that the term “funds” in § 44-1095 should be construed broadly
to exempt fraternal benefit societies from using its funds to pay
any tax. We reject both these theories as inconsistent with the
plain language of the statute and contrary to settled principles
of statutory interpretation. We note the parties’ briefing focused
on the term “funds.” Because the statutory phrase is actually
“its funds,” we at times use that phrase in our analysis.
(a) § 44-1095 Is Not
Entity-Based Exemption
Woodmen argues it
is exempt from “all and every state” tax. Because the
sales and use tax is a tax imposed by the state, it falls
within the ambit of § 44-1095. And because it falls within
the ambit of § 44-1095, [Woodmen] is exempt from the
sales and use tax. This case really is that simple.35
This argument urges a construction of § 44-1095 that effec-
tively reads the phrase “its funds” out of the statutory language
altogether and replaces it with “fraternal benefit society.” But
the plain language of § 44-1095 does not exempt fraternal ben-
efit societies from taxation; rather, it exempts fraternal benefit
societies from taxes imposed on “its funds.”
A court must attempt to give effect to all parts of a stat-
ute, and if it can be avoided, no word, clause, or sentence
will be rejected as superfluous or meaningless.36 Like the
Tax Commissioner and the district court, we expressly reject
Woodmen’s invitation to render meaningless the phrase “its
funds” in order to judicially rewrite § 44-1095 into an entity-
based exemption from all taxation.
Instead, we must strictly construe the exemption provisions
of § 44-1095 and not extend their operation through judicial
construction.37 When the Legislature has intended to create
35
Brief for appellant at 19.
36
Stick v. City of Omaha, supra note 28; Holdsworth v. Greenwood Farmers
Co-op, supra note 28.
37
See Archer Daniels Midland Co. v. State, supra note 31.
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an entity-based exemption, it has used plain and simple lan-
guage.38 The Legislature did not exempt fraternal benefit soci-
eties in § 44-1095, but, rather, exempted “its funds.” This court
will not write into a statute what the Legislature did not.
(b) Exemption for “[I]ts [F]unds” Does
Not Impact Sales and Use Tax
Much of the parties’ briefing debates what the Legislature
meant when it exempted a fraternal benefit society’s “funds”
from “all and every state, county, district, municipal, and school
tax other than taxes on real estate and office equipment.”39 The
term “funds” is used throughout the statutes governing frater-
nal benefit societies, but no specific definition of the term is
provided. The parties have not cited to legislative history dis-
cussing the intended meaning of the phrase “its funds” as used
in § 44-1095, and until now, no Nebraska appellate court has
been called upon to consider the issue.
[12] The parties advance alternative interpretations of the
phrase “its funds” and each party argues that the rules of
statutory construction support their preferred interpretation.
Ultimately, however, we conclude it is not necessary to deter-
mine—in this case—a precise definition of “funds” or “its
funds” under § 44-1095. An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it.40 In this case, determining the
precise definition of “its funds” under § 44-1095 is not neces-
sary to resolve the issues on appeal, because no definition of
“its funds” has been advanced that could plausibly implicate or
apply to sales and use taxes.
38
See, e.g., § 44-4232 (“[t]he [Comprehensive Health Insurance Pool
Distributive Fund] shall be exempt from any and all taxes assessed by
the State of Nebraska”), and § 44-2715 (“[t]he [Nebraska Life and Health
Insurance Guaranty Association] shall be exempt from payment of all fees
and all taxes levied by this state . . . except taxes levied on real property”).
39
§ 44-1095.
40
Greenwood v. J.J. Hooligan’s, 297 Neb. 435, 899 N.W.2d 905 (2017).
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[13-15] Sales and use taxes are not imposed on funds, they
are imposed on the activity of retail transactions, measured
by gross receipts.41 It is a tax upon the sale, lease, rental, use,
storage, distribution, or other consumption of tangible personal
property in the chain of commerce.42 A sales tax is not imposed
on the article sold, but, rather, upon the transaction called the
sale.43 As we explained in Anthony, Inc. v. City of Omaha:
Both occupation taxes and sales taxes are “excise
taxes” for the purpose of raising revenue. An excise tax is
a tax imposed on the manufacture, sale, or use of goods
or on an occupation or activity, and is measured by the
extent to which a privilege is exercised by the taxpayer,
without regard to the nature or value of the taxpayer’s
assets. An excise tax is imposed upon the performance of
an act.44
Because sales and use tax is imposed on the performance of
a transaction, such taxes have nothing to do with the value or
nature of Woodmen’s funds. In other words, sales and use taxes
are taxes imposed on Woodmen’s retail purchase activity, not
on Woodmen’s funds.
Woodmen tries to get around this distinction by urging
an interpretation of “its funds” that would include the activ-
ity of spending its funds. Woodmen argues that in order for
§ 44-1095 to have meaning, “it must mean that [Woodmen]
may not be required to spend its funds paying taxes on the
purchase of goods. In other words, [Woodmen], as an entity, is
exempt from the sales and use taxes.”45 We disagree.
For the reasons stated earlier, we reject Woodmen’s argu-
ment that § 44-1095 confers an entity-based exemption on
41
See Anthony, Inc. v. City of Omaha, supra note 22.
42
See id.
43
316 Neb. Admin. Code, ch. 1, § 001.02 (2003).
44
Anthony, Inc. v. City of Omaha, supra note 22, 283 Neb. at 876-77, 813
N.W.2d at 475-76 (emphasis supplied).
45
Brief for appellant at 21.
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fraternal benefit societies. Woodmen’s similar suggestion—that
§ 44-1095 should be construed to exempt not just taxes on “its
funds,” but also to exempt payment of any taxes using “its
funds”—is also rejected. Such a construction would be con-
trary to the plain language of the statute, would impermissibly
expand the statute through judicial construction, and would
recognize an entity-based exemption that has not been clearly
authorized by the statute.
Woodmen also argues that unless the phrase “its funds” is
construed broadly to create “an exemption for all fraternal
benefit societies that exempts the societies from paying sales
and use taxes out of their funds,”46 then § 44-1095 provides
no exemption at all from any current tax and “is nothing more
than an ink blot in Nebraska’s statutes.”47
It is true that during oral argument before this court, the
parties were not able to identify any current tax that, but for
the exemption in § 44-1095, would be levied or imposed
on a fraternal benefit society’s “funds.” NDOR and the Tax
Commissioner argue that in 1931, when the tax exemption on a
fraternal benefit society’s “funds” was first enacted,48 it effec-
tively exempted such societies from taxes on intangible per-
sonal property in their funds, but the tax on intangible personal
property was later repealed.49 NDOR and the Tax Commissioner
describe § 44-1095 as “antiquated.” We express no opinion
on whether this observation is correct, because whether a
statute as written has become antiquated presents a ques-
tion of tax policy more properly directed to the Legislature.50
46
Id. at 16.
47
Id. at 20.
48
See 1931 Neb. Laws, ch. 86, § 31, p. 246 (codified at Comp. Stat.
§ 44-1261 (Supp. 1931)).
49
See 1967 Neb. Laws, ch. 498, § 3, p. 1691 (repealing Neb. Rev. Stat.
§ 77-201.01 (Reissue 1966)).
50
See State, ex rel. Beatrice Creamery Co., v. Marsh, 119 Neb. 197, 227
N.W. 926 (1929).
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It is the role of this court to declare the law as it finds it, and
we decline Woodmen’s invitation to modernize statutory lan-
guage through judicial legislation.
In summary, Woodmen asks us to either read “its funds”
out of § 44-1095 altogether, and thereby create an entity-based
exemption which the Legislature has not authorized, or con-
strue the phrase “its funds” so broadly as to include the activ-
ity of spending funds. It is not the proper role of this court to
do either.51
[16] For the reasons stated previously, we hold that the
plain language of § 44-1095 exempts taxes on the “funds” of
a fraternal benefit society, but it does not exempt the fraternal
benefit society from sales and use taxes, because such taxes are
imposed on its retail purchase activity, not on its funds.52 Other
courts to have considered statutes similar to § 44-1095 have
arrived at the same conclusion.53
In fact, Ohio has applied similar analysis to a similar
statute. The Ohio statute provides: “‘Every fraternal benefit
society organized or licensed under this chapter is hereby
declared to be a charitable and benevolent institution, and all
of its funds are exempt from all state, county, district, munici-
pal, and school taxes other than franchise taxes and taxes on
real estate.’”54 In United Transp. Union v. Tracy,55 a fraternal
benefit society contended this statute exempted it from the
Ohio use tax. The court disagreed. In its analysis, the court
51
See, J.S. v. Grand Island, supra note 24; Stick v. City of Omaha, supra
note 28; Holdsworth v. Greenwood Farmers Co-op, supra note 28.
52
See Anthony, Inc. v. City of Omaha, supra note 22.
53
See, United Transp. Union v. Tracy, 82 Ohio St. 3d 333, 695 N.E.2d
770 (1998); Dept. of Rev. v. Woodmen of the World, 919 P.2d 806 (Colo.
1996); Supreme Council of the Royal Arcanum v. State Tax Commission,
358 Mass. 111, 260 N.E.2d 822 (1970). But see The State of Texas v. The
Praetorians, 143 Tex. 565, 186 S.W.2d 973 (1945).
54
United Transp. Union v. Tracy, supra note 53, 82 Ohio St. 3d at 334, 695
N.E.2d at 771, quoting Ohio Rev. Code Ann. § 3921.24 (2002).
55
United Transp. Union v. Tracy, supra note 53.
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emphasized that statutes relating to tax exemptions had to be
strictly construed. It concluded the plain language of the stat-
ute exempted only a society’s funds from taxation and did not
exempt a society from transactions on which Ohio imposed a
use tax. It emphasized that a use tax was issued “‘upon the
various items of office materials that were needed and uti-
lized by the society,’” not the society’s funds, and thus, the
exemption on funds did not apply to the use tax.56
Nebraska’s sales and use tax is a transactional tax, imposed
on purchases, not on funds. We therefore agree with the dis-
trict court that § 44-1095 does not exempt Woodmen from
Nebraska’s sales and use tax. For the same reason, we con-
clude the district court did not err in denying Woodmen’s
refund claim.
3. No Due Process Violation
Woodmen claims it was denied due process before the
Tax Commissioner. Specifically, Woodmen argues it was
not provided adequate notice of the legal grounds on which
NDOR would rely at the hearing, because NDOR initially
denied Woodmen’s application for exemption on the basis
that Woodmen was not a religious organization. The Tax
Commissioner rejected this due process argument, as did the
district court, finding the record showed that Woodmen had
been provided ample notice of NDOR’s legal theories and
reasoning well in advance of the hearing. We agree Woodmen
has shown no due process violation.
[17,18] The first step in a due process analysis is to iden-
tify a property or liberty interest entitled to due process pro-
tections.57 If there is a protected interest at stake, the ques-
tion then becomes what process is due.58 The fundamental
56
Id. at 335, 695 N.W.2d at 772.
57
Marshall v. Wimes, 261 Neb. 846, 626 N.W.2d 229 (2001).
58
See id.
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requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.59
Woodmen’s right to apply for a tax exemption is a prop-
erty interest entitled to due process. The question, then, is
whether the process Woodmen received gave it an opportunity
to be heard in a meaningful time and manner. Woodmen does
not contest that the opportunity to be heard was timely—it
suggests, however, that the opportunity was not meaningful,
because Woodmen did not have adequate notice of the legal
basis on which NDOR was relying to oppose the exemption.
The record refutes this contention.
Although NDOR originally denied the application for
exemption because Woodmen was not a religious organiza-
tion, the record shows the parties were aware, well in advance
of the hearing, of one another’s legal theories and reasoning
regarding the interpretation of § 44-1095. Specifically, in a
letter dated before the formal hearing was even requested,
NDOR responded to Woodmen’s legal arguments and provided
an explanation of its legal basis for concluding § 44-1095 did
not provide Woodmen an exemption from sales and use tax.
The record further reflects that before the hearing, the parties
conducted discovery, exchanged witness and exhibit lists, and
met to discuss their differing interpretations of § 44-1095. The
record amply supports the conclusion that prior to the hearing,
Woodmen was aware of the legal basis on which NDOR was
opposing the sales and use tax exemption. The district court
correctly found no due process violation, and Woodmen’s argu-
ments to the contrary are meritless.
4. Exclusion of Tax Law
Professor’s Testimony
Woodmen argues the hearing officer abused her discre-
tion in excluding the expert testimony of the tax law profes-
sor retained by Woodmen. Woodmen argues the professor is
59
See id.
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a “renowned expert in the tax laws of Nebraska” and “was
willing to assist [the] Hearing Officer with his opinion.”60
Woodmen’s offer of proof indicates that, if permitted, the pro-
fessor would have testified about “statutory construction” and
“about the law in Nebraska and the plain language of the law
in Nebraska and his research and study of that area, [and] how
[§] 44-1095 suggests a broad meaning for funds.”61 The hear-
ing officer allowed Woodmen to include the professor’s opin-
ions as authorities in its posthearing briefing, but excluded the
professor’s testimony. Woodmen contends this was an abuse
of discretion and argues the district court erred in failing to
recognize as much.
[19] Generally, a trial court’s ruling in receiving or exclud-
ing an expert’s testimony which is otherwise relevant will be
reversed only when there has been an abuse of discretion.62
Here, the rules of evidence were not invoked at the hear-
ing before the Tax Commissioner 63; but under the Nebraska
Administrative Code, the hearing officer could “exclude
incompetent, irrelevant, immaterial, and unduly repeti-
tious evidence.”64
[20,21] Expert testimony is relevant and admissible only
if it tends to help the trier of fact understand the evidence or
determine a fact issue, and expert testimony concerning a ques-
tion of law does not tend to accomplish either of these goals.65
60
Brief for appellant at 28.
61
Id. at 31.
62
Prime Home Care v. Pathways to Compassion, 283 Neb. 77, 809 N.W.2d
751 (2012); Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d
235 (2010).
63
See 316 Neb. Admin. Code, ch. 33, § 12.04A (request to be bound by rules
of evidence must be served 3 days before hearing).
64
Id., § 12.04.
65
State v. Merchant, 285 Neb. 456, 827 N.W.2d 473 (2013), disagreed with
on other grounds, State v. Merchant, 288 Neb. 440, 848 N.W.2d 630
(2014); Sports Courts of Omaha v. Brower, 248 Neb. 272, 534 N.W.2d 317
(1995).
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Consequently “‘expert testimony concerning a question of law
is generally not admissible in evidence.’”66 In the past, this
court has been critical of admitting expert testimony from legal
scholars on the interpretation of statutes, reasoning that such
evidence is irrelevant and “‘should not reach a judge’s atten-
tion by way of the witness stand.’”67
Here, the parties stipulated to the pertinent facts and there
were no factual disputes presented at the hearing—only a
question of law regarding statutory interpretation. Under these
circumstances, the district court found the hearing officer did
not abuse her discretion in excluding the tax law professor’s
opinion testimony, particularly when Woodmen was permitted
to present the professor’s opinions as authority and argument
in its posthearing brief. The district court’s decision in this
regard conformed to the law, was supported by the record, and
was neither arbitrary, capricious, nor unreasonable. There is no
merit to this assignment of error.
V. CONCLUSION
The Legislature did not include fraternal benefit socie­
ties among those entitled to be exempt from sales and use
tax under § 77-2704.12(1), and the exemption from taxes on
a fraternal benefit society’s “funds” in § 44-1095 does not
encompass sales and use tax. We find no merit to the remain-
ing assignments of error and therefore affirm the judgment of
the district court.
A ffirmed.
Wright, J., not participating.
66
State v. Merchant, supra note 65, 285 Neb. at 465, 827 N.W.2d at 481,
quoting Kaiser v. Western R/C Flyers, 239 Neb. 624, 477 N.W.2d 557
(1991)).
67
Id., quoting Sasich v. City of Omaha, 216 Neb. 864, 347 N.W.2d 93
(1984).