Murray County v. Homesales, Inc.

FISCHER, S.J.;

{1 In this appeal, we must determine whether a transfer of real property between affiliated business entities constitutes a "sale" for purposes of the Documentary Stamp Tax Act. We hold that the transfer of real property between affiliated corporations or transfers on behalf of the beneficial owner of real property are not taxable if any consideration paid does not exeeed $100.

FACTS

T2 This case involves the conveyance of title to real property as a result of four real estate foreclosure proceedings. Chase filed each foreclosure case and was the successful bidder at each sheriff's sale. Therefore, Chase was entitled to a sheriff's deed to each of the properties. However, Chase did not take title. Instead, sheriff's deeds were granted to Chase's affiliated entities The deeds were recorded with the respective county clerks. The grantees noted on the conveyances that the deeds were exempt from documentary taxes. And, no documentary taxes were paid.

T3 The Counties contend the conveyances involved in this case are not exempt and filed this suit to collect the applicable documentary taxes. On November 28, 2011, the Counties filed their First Motion for Partial Summary Judgment. In its response, Chase argued that the Counties did not have standing to enforce the provisions of the DSTA and that the deeds at issue were exempt from documentary taxes. The district court granted the Counties motion for partial summary judgment on February 11, 2013, and then certified "that an immediate appeal would materially advance the ultimate termination of this litigation." See Okla. Sup.Ct. R. 1.50, 12 O.S8.2011, ch. 15, app. 1. We granted the Defendants' petition for certio-rari to review the district court's interlocutory order.²

STANDARD OF REVIEW

€4 The Defendants argue in this appeal that the order granting partial summary judgment should be reversed for two reasons: (1) the Counties lack standing to enforce the provisions of the DSTA; and (2) the post-foreclosure conveyances are exempt from - documentary taxes. - The district court's order granting summary judgment is reviewed de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. That review requires examination of the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears "an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant." Copeland v. The Lodge Enters. Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699.

15 Legal questions involving the district court's statutory interpretation of the DSTA are also subject to de novo review. Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654. The primary goal of statutory construction is to ascertain and apply the intent of the Legislature that enacted the statute. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 807.

ANALYSIS

T6 The Documentary Stamp Tax Act imposes a tax on certain transfers of real property:

A tax is hereby imposed on each deed, instrument or writing by which any lands, tenements, or other realty sold shall be granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser ... when the consideration or value of the interest or property conveyed ... exceeds One Hundred Dollars ($100.00).

68 O.S8.2011 § 3201(A). "'Sold' means a transfer of an interest for a valuable consideration, which may involve money or anything of value." 68 0.8.2011 § 3201(C)(1). "Consideration" is defined as "the actual pecuniary value exchanged or paid ... for the transfer or conveyance of an interest of realty...." 68 0.8.2011 § 8201(C)@B). When a sale of real property occurs, a documentary tax is levied on "the privilege of executing a 'deed, instrument or writing' that effects transfers of 'land, tenements and other realty'" Johnston v. Oklahoma Tax Comm'n, 1972 OK 88, ¶ 9, 497 P.2d 1295, 1297. The tax is collected through the sale of documentary stamps provided by the Oklahoma Tax Commission (OTC) and sold by the county clerks. 68 §§ 3203 and 8204. The county clerk is authorized to retain and deposit in the county general fund five percent of the first $0.55 of every $0.75 collected and the remaining $0.20 of each $0.75 collected. 68 0.8.2011 § 3204(B)(1) and (C). The balance is forwarded to the OTC. 68 O.8S.2011 § 3204. However, certain transfers of real property are exempt from the documentary tax. See 68 0.8.2011 $ 3202; Okla. Admin. Code § 710:80-1-9.

T7 The facts dispositive of this appeal are established from two sources, the judgments in the foreclosure cases and the summary judgment record. The judgments in the foreclosure proceedings are now final and are not subject to collateral attack in this case "in the absence of fraud, mistake or collusion," none of which have been asserted with respect to the those judgments.³ Chandler v. Denton, 1987 OK 109, ¶ 10, 747 P.2d 938, 941. Further, those judgments are presumed to include a finding of every fact required to support the judgment. Gage v. Estep, 1966 OK 52, 422 P.2d 449. The facts and the inferences drawn from the summary judgment record "must be taken in favor of the party opposing the motion." Hargrave v. Canadian Valley Elee. Co-op., Inc., 1990 OK 43, ¶ 14, 792 P.2d 50, 56. So viewed, the record establishes that at the time each of the four foreclosure actions was filed, Chase was the holder of a promissory note and mortgage securing repayment of the note on the real property being foreclosed or that it was the party entitled to enforce those instruments. After the borrowers defaulted, Chase successfully sued to collect the unpaid balance of the notes and foreclose its mortgages. Each case resulted in a judgment in favor of Chase for the note balance. The judgments also foreclosed Chase's mortgages and directed the sheriff to sell the property secured by the mortgages. Chase was the successful bidder at the sheriff's sale in each case and subsequently filed a motion to confirm the sales.

T8 The district court orders confirming the sales recite that the properties were sold to Chase, that the sales were made in conformity with the statutes of Oklahoma and that at the hearing on the motions to confirm the sales Chase assigned all of its right, title and interest in the properties. In three of the proceedings, Chase assigned its interest to Homesales. Homesales is a wholly owned subsidiary of Chase. In the fourth foreclosure action involving property previously owned by Linda Gentry, Chase assigned its interest to the Federal National Mortgage Association (FNMA). FNMA was the beneficial owner of the Gentry property and Chase was acting as FNMA's agent in that foreclosure. At the direction of the district court and Chase, the sheriff executed deeds to Homesales and FNMA. The deeds state that they are exempt from documentary stamp tax pursuant to section 8202(13): "Any deed executed pursuant to a foreclosure proceeding in which the grantee is the holder of a mortgage on the property being foreclosed...." The Counties contend that no exemption from documentary stamp tax is available for the conveyances subsequent to Chase's oral assignment of its interest in the properties at the confirmation hearings. They filed this suit to enforee section 3201 and collect the documentary taxes they contend are due.

I.

THE COUNTIES DO NOT HAVE STATUTORY AUTHORITY TO PROSECUTE VIOLATIONS OF THE DOCUMENTARY STAMP TAX ACT

19 The initial issue raised by Chase is whether the Counties have standing to sue to collect unpaid documentary taxes. "Taxation is an exclusively legislative function that can be exercised only under statutory authority and in the manner specified by statute." - State ex rel. Oklahoma Tax Comm'n v. Texaco Exploration & Prod., Inc., 2005 OK 52, ¶ 7, 131 P.3d 705, 707 (citing Gay v. Thomas, 1896 OK 67, 46 P. 578). Chase contends that only the OTC has statutory authority to enforce the DSTA and, therefore, the Counties do not have standing to prosecute this action. Chase specifically points to section 3205 of the DSTA: "The Oklahoma Tax Commission through the Documentary Stamp Tax Unit shall be responsible for the administration and enforcement of the taxes as imposed by Section 8201 of this title." Chase's argument depends on the construction of this language. "When the Legislature has clearly expressed its intent, the use of additional rules of construction are almost always unnecessary and a statute will be applied as written." Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d at 307 (citations omitted). Here, the plain language of the statute states that the OTC is "responsible for the administration and enforcement" of the DSTA through the OTC's Documentary Stamp Tax Unit. 68 0.8. 2011 § 3205. The Counties argue, however, that nothing in the DSTA expressly states that the OTC is solely responsible for administration and enforcement or that county clerks are prohibited from filing enforcement actions. Construction of the DSTA is necessary to resolve these questions.

110 The Counties do not address the effect of section 3205 of the DSTA. They rely on their general authority to "sue and be sued." 19 O0.8.2011 § 1. From this, the Counties conclude that they may exercise this authority and initiate judicial proceedings to prosecute violations of the DSTA because they are the governmental entities charged with collecting documentary taxes. Section 3204(A) does provide that "the county clerks shall have the responsibility of selling [documentary] stamps and shall have the further duty of accounting for the stamps to the Oklahoma Tax Commission on the last day of each month." And, general principles of statutory construction require parts of a legislative enactment to be construed so as to "harmonize [each provision] with all the others." - Oklahoma Natural Gas Co. v. State ex rel. Vassar, 1940 OK 137, ¶ 10, 187 Okla. 164, 101 P.2d 793, 796. Even so, the construction of individual provisions of a statutory scheme must be consistent with the overriding policy of the entire enactment as intended by the Legislature. Id. We find the Counties' argument unpersuasive.

111 First, it is the policy of this State, "to provide, so far as possible, uniform procedures and remedies with respect to all state taxes." 68 0.8.2011 § 201 (describing the purpose of the Uniform Tax Procedure Code). Unless expressly provided otherwise, the Uniform Tax Procedure Code "shall control and shall be exclusive." - Id. The Legislature has vested in the OTC the authority to "enforce the provisions of [the Uniform Tax Procedure Code] and to promulgate and enforce any reasonable rules with respect thereto." 68 0.8.2011 § 208. Although the OTC is required to "coordinate with city and county governments to increase state and local sales and use tax collections through joint enforcement efforts," the OTC maintains "central administration" of such efforts. 68 0.8.2011 § 281. As later discussed in this Opinion, it does not appear the OTC and the Counties share the same view regarding the taxability of the conveyances at issue in this case. Uniform procedures and remedies for the assessment and collection of documentary taxes cannot be achieved if the results depend on the county in which the transaction occurred. "The construction placed on a statute by officers in the discharge of their duties ... which has been long acquiesced in, is a just medium for its judicial interpretation." Oklahoma Tax Comm'n v. Liberty Nat'l Bank & Trust Co., 1955 OK 208, ¶ 0, 289 P.2d 388 (syllabus 1). Only the OTC has been charged by the Legislature with developing and implementing uniform tax policy.

112 Second, the Counties' position conflicts with the general statutory procedure established by the Legislature for collecting unpaid taxes. That procedure begins with an administrative determination by the OTC that taxes are due and on certification of the debt, the entry of, in effect, a judgment for the taxes due. 68 0.8.2011 §§ 221 and 230. The OTC may also issue a tax warrant for unpaid taxes to a county sheriff. 68 0.8.2011 § 281. In either instance, the county clerk is charged with the ministerial task of filing the OTC's certification or warrant. Generally, the OTC's administrative process is a prerequisite to litigation. State ex rel. Oklahoma Tax Comm'n v. Texaco Exploration & Prod., Inc., 2005 OK 52, 131 P.3d 705 (OTC may not bypass the administrative process and file suit in district court except where a false or fraudulent report is filed with intent to evade taxes). When litigation is necessary, the Legislature requires that suit be filed "in the name of the State of Oklahoma, on relation of the Oklahoma Tax Commission." 68 0.8.2011 § 215(a). In none of these statutes is any authority granted to county clerks to sue to collect unpaid taxes.

113 The only governmental officer other than the general counsel of the OTC who is statutorily authorized to file suit to recover unpaid taxes is the Attorney General. 68 ©.8.2011 § 250. If the Legislature has authorized the Attorney General to do so, it could have also provided similar authorization for county clerks. The fact that it did not supports the conclusion that the Legislature did not intend for counties to have direct enforcement authority to collect unpaid taxes. See McSorley v. Hertz Corp., 1994 OK 120, ¶ 19, 885 P.2d 1343, 1350-51 (omission of self-insurers from the list of those statutorily required to offer uninsured motorist coverage was evidence of legislative intent not to require self-insurers to offer uninsured motorist coverage). Nor can we conclude that this omission was inadvertent, at least with respect to the DSTA. The Legislature specifically addressed the county clerk's enforcement role in that context. If a county clerk becomes "aware" that a taxpayer has not or might not have paid the correct amount of documentary tax, the clerk must "immediately report the facts to the Oklahoma Tax Commission." 68 0.8.2011 § 3206(D). No provision of the DSTA authorizes county clerks to take any further action. "The lawmaking body is presumed to have expressed its intent in a statute's language and to have intended what the text expresses." Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 218, 219. The enforcement authority of the OTC and the role of the county clerks in that process are specifically addressed in the DSTA. County clerks are required to sell documentary stamps, account for the proceeds and report any suspected violation to the OTC. Although the Counties' have general authority to sue granted in Title 19 0.8.2011 § 1, they have not been granted any similar authority in the specific DSTA statutes at issue here. "Where a matter is addressed by two statutes, one specific and the other general, the specific statute governs over the general provision." Jones v. State, 2011 OK 105, ¶ 14, 268 P.3d 72, 76. Cf., Dowell v. Pletcher, 2013 OK 39, 304 P.3d 735 (affirming dismissal of county clerk in action by bail bondsman challenging the "Ten Bond Rule" finding clerk had no enforcement authority because Legislature implemented detailed procedure giving Insurance Commissioner "full power and authority" to enforce the rule).

" 14 Third, rules promulgated by the OTC for the administration and enforcement of the DSTA confirm that county clerks do not have direct enforcement authority. See 68 00.98.2011 § 3205: "The Oklahoma Tax Commission shall prescribe such rules and regulations as it may deem necessary to carry out the purpose of Sections 8201 through 8206 of this title." Pursuant to this authority, the OTC promulgated rules "to facilitate the administration, enforcement, and collection of taxes and other levies enacted by the Oklahoma Legislature with respect to documentary stamps." Okla. Admin. Code § 710:80-1-1 (codified Dec. 80, 1991). Those rules were adopted by the Legislature and now "have the foree of law" (75 0.S8.2011 § 308.2(C)), subject to judicial review. 75 O0.8.2011 § 306(C) ("Rules promulgated pursuant to the provisions of the Administrative Procedures Act are presumed to be valid until declared otherwise by a district court of this state or the Supreme Court."); Indep. Sch. Dist. No. I-20 of Muskogee County v. Okla. State Dep't of Educ., 2003 OK 18, 65 P.3d 612 (agency rule may be challenged pursuant to the declaratory judgment provision of 75 0.8. § 806). The OTC's rules very clearly de-seribe the different roles of the OTC and the county clerks with respect to the collection of documentary taxes. Rule 710:80-1-10 sets out the "Duties and responsibilities of the county clerk." The Rule states: "County clerks are responsible for selling Documentary Stamps to the taxpayers and have the duty of accounting for the stamps to the Oklahoma Tax Commission." The county clerk's role in the enforcement of the DSTA is limited to two functions. "In order to make a correct determination of tax due, the county clerks have the duty to request taxpayers to produce satisfactory documentation which correctly discloses the value of the property." Okla. Admin. Code § 710:30-1-10(2). "If the taxpayer claims exemption from the payment of the documentary stamp tax, and there is no notation on the deed indicating the reason for the claiming of the exemption, the county clerk shall make a brief notation on the face of the deed indicating the reason for claiming the exemption." Okla. Admin. Code § 710:80-1-10(5). Rule 710:80-1-7 provides that if a taxpayer does not pay the necessary amount of documentary taxes "the Commission shall" send a proposed tax assessment to the taxpayer. The taxpayer can challenge that assessment by filing a protest with the Commission. However, no authority is provided in the OTC's rules for county clerks to decide a taxpayer's protest. Any protest "will be forwarded to the General Counsel's Office of the Oklahoma Tax Commission for disposition." Id.

$15 The rules promulgated by the OTC and adopted by the Legislature for the enforcement of the DSTA provide that the county clerks have a subordinate and ministerial role in that process. "For the purpose of collecting the [documentary] stamp tax, the county clerks act as agents of the Oklahoma Tax Commission." Okla. Admin. Code § 710:80-1-10. The essential factor in any ageney relationship is the principal's right to control the conduct of the agent. Enterprise Mgmt. Consultants, Inc. v. State ex rel. Oklahoma Tax Comm'n, 1988 OK 91, ¶ 6, n. 13, 768 P.2d 359, 362. And, an agent cannot unilaterally expand the seope of authority specified by the principal. Home Owners' Loan Corp. v. Thornburgh, 1940 OK 424, 187 Okla. 699, 106 P.2d 511. The Counties have cited no rule by which the OTC has delegated to them the authority to file suit to collect unpaid documentary taxes, much less any authorization from the OTC to file this law suit⁴ In all of the applicable statutory provisions, only the OTC is specifically charged with "enforcement of the taxes as imposed by Section 8201." 68 0.8.2011 § 3205. No provision of the DSTA similarly authorizes a county to do so. "[The general rule is that nothing may be read into a statute which was not within the manifest intention of the legislature as gathered from the language of the act." Stemmons, Inc. v. Universal C.I.T. Credit Corp., 1956 OK 221 ¶ 19, 301 P.2d 212, 216. We will not read into the DSTA authority for the Counties to prosecute violations of the Act when the Legislature has declined to do so.

IL.

THE COUNTIES HAVE STANDING TO SEEK DECLARATORY RELIEF

116 Even though we find that the Counties do not have statutory authority to prosecute violations of the DSTA, that does not necessarily mean that they do not have standing to bring this case. Although the OTC has primary responsibility for administration and enforcement of the DSTA, it does not have ultimate authority to determine when documentary taxes are due. This Court is the final arbiter of disputed tax matters. Okla. Const. art. VII, § 4; 68 0.8. 2011 § 225 (taxpayer aggrieved by any order of the Tax Commission may appeal to Supreme Court), and § 8027(final orders from the Court of Tax Review may be appealed to the Supreme Court) Turner v. Oklahoma Tax Com'n, 1993 OK 77, 858 P.2d 433 (Legislature has made the Supreme Court the final arbiter of the meaning of tax statutes). Further, this Court has previously recognized the standing of parties to invoke this Court's jurisdiction and determine disputed tax matters even in the absence of statutory authority to do so. Oklahoma Tax Comm'n v. Smith, 1980 OK 74, 610 P.2d 794 (potential taxpayer could sue for declaratory relief where statutory remedy to sue for refund of tax paid was not available to challenge constitutionality of taxing statute before tax was due); Independent School District No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233 (abrogated in part by constitutional amendment) (school district could seek injunction preventing payment of tax refund and challenge exemption claimed by a taxpayer). Finally, this Court has long-recognized the availability of its equitable powers to protect the public treasury from unlawful dissipation or management by those officially charged with the care and custody of public funds. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 8, 163 P.3d 512, 519 (citing Kellogg v. School Dist. No. 10 of Comanche County, 1903 OK 81, 74 P. 110). The question, therefore, is whether the Counties have demonstrated their standing to invoke the jurisdiction of Oklahoma courts in this case.

117 "'Standing' is the right to commence litigation, to take the initial step that frames legal issues for ultimate adjudication by a court or jury." State ex rel. Bd. of Regents v. McCloskey Bros., Inc., 2009 OK 90, ¶ 18, 227 P.3d 133, 144. The doctrine of standing identifies those disputes that are appropriately resolved through the judicial process. Fent, 2007 OK 27, ¶ 7, n. 20, 163 P.3d at 519 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)). Standing requires proof of:

(1) a legally protected interest which must have been injured in fact- i.e., suffered an injury which is actual, concrete and not conjectural in nature, (2) a causal nexus between the injury and the complained-of conduct, and (8) a likelihood, as opposed to mere speculation, that the injury is capable of being redressed by a favorable court decision.

Fent, 2007 OK 27, ¶ 7, 163 P.8d at 519 (citing Cities Serv. Co. v. Gulf Oil Corp., 1999 OK 16, ¶ 3, 976 P.2d 545, 547, and Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 8, 890 P.2d 906, 910). "The appropriate inquiry on a standing question is whether the plaintiff has in fact suffered injury to a legally protected interest as contemplated by statutory or constitutional provisions." - Leavitt, 1994 OK 148, 19, 890 P.2d at 911. Standing is an aspect of justiciability, and "focuses on the party seeking to get [a] complaint before the court and not on the issues tendered for determination. In standing problems the inquiry posed is whether the party invoking the court's jurisdiction has a legally cognizable interest in the outcome of the tendered controversy." Application of State ex rel. Dep't of Transp., 1982 OK 86, ¶ 6, 646 P.2d 605, 609.

18 This Court dealt with a similar issue in Independent School District No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233. Glass involved a suit by a school district challenging a refund payable as the result of a tax exemption claimed by a taxpayer. The taxpayer's property was located in the school district and granting the exemption would directly reduce the revenue received by the district. Cf., Indep. Sch. Dist. No. 5 of Tulsa County v. Spry, 2012 OK 98, 292 P.3d 19 {sehool districts lacked standing to challenge voucher program where funds at issue were part of legislative appropriation rather than taxes paid by school district taxpayers). The board of tax-roll corrections granted the taxpayer's request and the school district sued to enjoin payment of the refund. As in this case, the taxing statute in (lass did not authorize enforcement by the school district. That remedy was available only to the taxpayer or the county assessor. See 68 O.S8. Supp.1974 § 2479. Nonetheless, this Court held that injunctive relief was available because the statutory remedy was not. "We agree with the District that it has standing to seek injunctive relief. The District has an interest in the subject matter, the capacity to sue, and the power to protect and prevent the wrongful disposition of revenues." (Glass, I 11, 639 P.2d at 1238.

{19 Even though the school district in Glass was ultimately unsuccessful in preventing the tax refund, as relevant to the standing issue in this case, Glass is indistinguishable. The Counties have the capacity to sue. The statutory remedy for direct enforcement of the DSTA is not available to the Counties. However, the relief sought by the Counties is not limited to collection of the allegedly unpaid documentary taxes. The Counties also seek an "[aldjudication by the Court that documentary stamp taxes are due pursuant to 68 O.S. § 8201 [and] ... that exemptions from the purchase of documentary stamps made by the defendants pursuant to 68 0.8. § 3201 were [not] lawful." When statutory relief is inadequate, equitable relief may be available. See Oklahoma Tax Comm'n v. Smith, 1980 OK 74, 610 P.2d 794. The non-monetary relief sought by the Counties in this case is authorized by Oklahoma's declaratory judgment law, Title 12 O0.S8.2011 §§ 1651 to 1657. "A determination of rights, status, or other legal relations may be obtained by means of a pleading seeking that relief alone or as incident to or part of a petition, counterclaim, or other pleading seeking other relief...." 12 0.8.2011 § 1652.

120 The proof required for the Counties to establish their right to pursue declaratory relief is set out in Gordon v. Followell, 1964 OK 74, ¶ 8, 391 P.2d 242, 245:

The requisite precedent facts or conditions which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (8) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in the controversy must be ripe for judicial determination.

Here, the Counties are entitled to $0.2275 of each $0.75 in documentary stamps sold.

The exemptions claimed with respect to the conveyances at issue in this case deprive the Counties of the documentary tax related to the transactions involved in this appeal. And, a determination that the Defendants are claiming the exemptions in violation of the DSTA is likely to result in the Counties' receipt of the taxes for which they filed this case. "A violation of a state statute is an injury to the State and its citizens. A continuing violation is an irreparable injury for which injunctive relief is available." Glass, 1 10, 639 P.2d at 1287. We agree with the Counties; they have a "legally cognizable" interest in the outcome of this litigation and have established their standing to pursue declaratory relief. "If standing exists, the case must proceed on the merits." Id.⁵

IIL

THE DOCUMENTARY STAMP TAX ACT

{21 The judgments in the foreclosure cases establish that Chase was the holder of the promissory note and mortgage in each of the four foreclosure proceedings or a person entitled to enforce those instruments. Therefore, it is clear that if the sheriffs deeds in each case had conveyed the property to Chase, Chase would have been entitled to the mortgage foreclosure exemption and no documentary taxes would be due. "The tax imposed by Section 8201 of this title shall not apply to: ... Any deed executed pursuant to a foreclosure proceeding in which the grantee is the holder of a mortgage on the property being foreclosed...." 68 0.S.2011 § 3202(13). The Counties do not argue otherwise. Their claim to documentary taxes is based on the fact that the sheriff's deeds were not granted to Chase but to its corporate subsidiary, Homesales, or in the case of the Gentry property to Chase's principal, FNMA. To prove that documentary taxes are due as a result of these conveyances, the Counties must first show that the properties were "sold," which requires proof that there was a "transfer of an interest for a valuable consideration." 68 O0.S8.2011 § 8201(C)(1). Second, the Counties must prove that the sales are not exempt. Our disposition of the first issue makes consideration of the second unnecessary.

122 Jim Walter Homes, Inc. v. County Clerk of Okfuskee County, 1986 OK CIV APP 35, 734 P.2d 849 (approved for publication by the Supreme Court), cited by the district court, addressed similar issues.⁶ The Court of Appeals held that a homebuilder's exchange of a foreclosure judgment for a sheriffs deed at the confirmation hearing constituted "consideration," therefore a sale of the property occurred that was not exempt from documentary tax. As authority for its holding regarding the exchange of consideration, the Court cited Railroad Federal Sav. & Loan Ass'n v. United States, 135 F.2d 290 (2d Cir.1948). That case held that a mortgagor's waiver of the right to pursue a deficiency constituted consideration for a deed in lieu of foreclosure and was subject to documentary tax. The Court of Appeals noted that reliance on federal case law was appropriate because Oklahoma's documentary tax statutes "were taken from long-standing federal statutes ... [and] there are numerous cases which have interpreted 26 U.S.C. § 4861, which contains the exact language of our statute." Jim Walter Homes, 1986 OK CIV APP 35, ¶ 8, 734 P.2d at 851. Although the federal statute at issue in Railroad Federal is identical to section 8201(A), the tax on the transaction was imposed pursuant to a United States Treasury regulation providing that a conveyance by a defaulting mortgagee in consideration for cancellation of the debt is taxed based on the amount of the debt plus accrued interest. As Judge Learned Hand's dissent in Railroad Federal points out, the effect of the regulation was to tax not only the value of any equity paid to the mortgagee but also the remaining amount of the debt without deducting the value of the land for which the mortgagor had originally loaned the purchase price. Railroad Federal, 185 F.2d at 298 (Hand, J. dissenting). Deeds in lieu of foreclosure are now exempt from doe-umentary taxes in Oklahoma. 68 0.S8.2011 § 8202(18).

123 Closer to the analysis required to resolve this case is Berkeley Sav. & Loan Ass'n of Newark N.J. v. United States, 301 F.Supp. 22 (D.C.N.J.1969), also interpreting the Federal Documentary Stamp Tax Act. In Berkeley, the savings and loan argued that a conveyance from the Veterans Administration (VA) of legal title to property securing repayment of installment contracts it purchased from the VA did not trigger the federal documentary tax imposed on deeds by which real property is sold because the installment contracts required the savings and loan to convey that title to the equitable owner, the installment contract obligor, after payment of a certain amount of the installment contract balance. The Court agreed.

[Nlot all deeds, instruments, or writing[s] conveying land or other realty are to have stamps affixed to them; only those deeds, instruments, or writings conveying land or other realty sold need have stamps affixed. Necessary, then, is an examination of the transaction being considered to see if there is a sale of realty; whether or not there is a sale depends, in the court's view, on whether or not the transfer of title was for consideration, and on the intention of the parties and the purpose for which the 'purchasing" party desires the property.

Berkeley, 301 F.Supp. at 25. Cf., United States v. Niagara Hudson Power Corp., 53 F.Supp. 796, 801 (S.D.N.Y.1944) (transfer of legal title from one wholly owned subsidiary corporation to another wholly owned subsidiary as the result of a merger of the two subsidiary corporations did not require federal documentary stamp taxes). Like the Jim Walter Homes Court, we find these federal cases helpful in determining when a sale occurs for purposes of documentary taxes.

24 However, there are two reasons why Jim Walter Homes does not resolve the issues in this case. First, the taxable transaction in Jim Walter Homes was based on the sheriff's deed to the homebuilder. According to the Counties, the potentially taxable transaction in this case is not between the sheriff and deed grantee, Homesales or Gentry, but between the entity entitled to receive a tax exempt sheriffs deed, Chase, and the entity that was granted the deed, its wholly owned subsidiary, Homesales, or in the case of the Gentry property, Chase's principal, FNMA. Second, the Court of Appeals holding that exchange of a foreclosure judgment for the sheriff's deed constitutes consideration for a taxable sale cannot be extended to this case. Although the definition of "sold" in the version of the DSTA applied in Jim Walter Homes is identical to the definition in section 3201, the Court of Appeals did not address the meaning of the statutory definition of "consideration" added in 1988 and now part of the current version of the DSTA.

"Consideration" means the actual pecuniary value exchanged or paid or to be exchanged or paid in the future, exclusive of interest, whether in money or otherwise, for the transfer or conveyance of an interest of realty, including any assumed indebtedness.

68 0.8. Supp.1983 § 5101(C)(8), renumbered from § 5101 by Laws 1988, ch. 162, § 160.

125 This Court has not previously determined what constitutes "consideration" and a sale of real property for purposes of the DSTA. We have, however, interpreted other provisions of the Oklahoma Tax Code involving taxes on transfers of real property. In the case of In re Assessments for the Year 2005 of Certain Real Property, 2007 OK 25, 161 P.3d 303, this Court held that a quit claim deed by trust beneficiaries as co-trustees to a limited liability company of which they were the only members transferred legal title only and, therefore, did not constitute a transfer requiring an assessment of the property at its current value for purposes of ad valorem taxes pursuant to Okla. Const. art. 10, § 8(B); "When only legal title is transferred but the equitable ownership is in the same two persons both before and after a deed is executed concerning the property we do not believe the intent of [section 8(B) was to lift] the five percent (5%) fair cash value cap." - Id. 113, 161 P.8d at 811. The Court noted that holding was consistent with previous decisions involving related tax issues, citing Bowls v. Oklahoma City, 1909 OK 149, 24 Okla. 579, 104 P. 902 (holder of the equitable title to land pursuant to an executory contract of sale is the owner for the purpose of taxation); State ex rel. Cartwright v. Dunbar, 1980 OK 15, 618 P.2d 900 (ownership of property rather than legal title determines the applicability of the constitutional exemption from ad valorem taxes for property of the state). Accord, In re Assessments for the Year 2003 of Certain Properties, 2006 OK CIV APP 147, 150 P.3d 399 (deed from one limited liability company to another to obtain refinancing did not constitute a transfer triggering ad valorem assessment at current value where both LLC's were owned and controlled by the same third LLC).

26 This Court's focus on the substantive nature of the underlying transaction has been followed by the OTC in its administration and enforcement of the DSTA as well. In Documentary Stamp Tax, P-92-222, 1995 WL 557131 (Okla. Tax Comm'n 1995), the OTC found that a quit claim deed granted by a former husband to effectuate the terms of a divorcee decree awarding property to his former wife was not a sale as defined in 68 ©.S.1991 § 3201(B) because it conveyed no interest beyond the wife's beneficial ownership already established by the divorce decree. A similar result was reached in 1994 interpreting the definition of "sold" in the 1985 version of the documentary tax statutes. See Documentary Stamp Tax, P 9200060, 1994 WL 848080 (Okla. Tax Comm'n Jan. 6, 1994). In Documentary Stamp Tax, P 8800313, 1989 WL 251450 (Okla. Tax Comm'n Sept. 28, 1989), a partnership owned by family members transferred real property to the individuals at the request of their lender and in order to obtain refinancing. After the refinancing was obtained the members transferred the properties back to the partnership. The OTC concluded no sale occurred because no consideration was exchanged, the intent of the transfers was to effectuate the purpose of the partnership not to conclude a sale, therefore, the partnership did not purchase the properties and no documentary tax was due. The OTC relied on Berkeley Savings & Loan, supra, to reach that result. Finally, by rule, the OTC has determined that conveyances "from a constituent corporation to the new or continuing corporation" as the result of a merger or consolidation are exempt from documentary taxes. Okla. Admin. Code § 710:80-1-9(7).⁷

27 An interest in real property is "sold" for purposes of the DSTA if the grantee of a "deed, instrument, or writing" pays "actual pecuniary value" for the conveyance. 68 0.8. 2011 $ 3201. If that consideration is paid, documentary taxes are due on the conveyance unless otherwise exempt. In the absence of such consideration, the transfer of legal title alone is not taxable. In determining whether "actual pecuniary value" is paid in the foreclosure context, we note that a sheriff's sale "seldom brings a property's fair market value. The predictable built-in loss is the difference between the fair market value of the property and the foreclosure sale proceeds." Founders Bank & Trust Co. v. Upsher, 1992 OK 35, ¶ 12, n. 28, 830 P.2d 1355, 1362. If that difference is $100 or less, there can be no sale for documentary tax purposes. 68 0.8.2011 § 83201(A). As stated by the OTC in its Rule 9, a conveyance of real property "without consideration" is not subject to documentary taxes. Okla. Admin. Code § 710:30-1~-9(1).

IV.

THE COUNTIES ARE NOT ENTITLED TO JUDGMENT

128 Consequently, evidence that the consideration for the conveyances at issue in this case exceeded $100 is essential to the Counties' claim that the properties were "sold" and that documentary taxes are due. Therefore, the fact that Homesales and FNMA were granted deeds in these foreclosure proceedings does not resolve the documentary tax issue. Nor is that issue resolved by the fact that certain post-foreclosure conveyances were made in the Gentry case. - Further examination of each transaction is required to determine whether the interest conveyed was "sold" for purposes of the DSTA. Without proof that a sale occurred, the Counties cannot demonstrate, in the first instance, that documentary taxes were due and that they are entitled to judgment. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary - material, - summary Judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court).

A. The Homesales Deeds

129 In three of the foreclosure cases, Chase assigned its interest to Home-sales during the confirmation hearings. The order confirming the sheriff's sale in each of those cases recites that Chase "in open court acknowledged receipt from Homesales, Inc. of good and valuable consideration...." The summary judgment record shows that Home-sales was a wholly owned subsidiary of Chase at the time of the transfer. The record does not show the amount of the "good and valuable consideration" exchanged between the parent corporation and its subsidiary. Because there is nothing in the summary judgment record to show whether the consideration paid by Homesales exceeded the statutory minimum, the district court could not, and we cannot determine whether the property involved in these transactions was "sold" for purposes of section 8201(A) of the DSTA.

An appellate court cannot take notice of any document or evidentiary material which the trial court did not have.... In addition, it is not the duty of the appellate court on review to make first instance determinations of disputed law or fact issues.

Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 18, 77 P.3d 581, 587 (citations omitted). Because the Counties have not established that the properties conveyed to Homesales were "sold," they have not shown that documentary taxes are due and that they are entitled to judgment with respect to these conveyances.

B. The FNMA Deed

130 Based on the documents in the summary judgment record, Chase is entitled to the inference that FNMA purchased the Gentry loan from the loan originator, Irwin Mortgage Corporation, that Chase acquired the rights to service this loan from FNMA and that Chase acted as FNMA's agent in the foreclosure action. At the confirmation hearing in the Gentry foreclosure, Chase also assigned its interest in the property to FNMA "for good and valuable cons-derations [sic]." However, the summary judgment record regarding the Chase/ FNMA transaction suffers from the same defect discussed with respect to the Home-sales deeds. The Counties have failed to show that FNMA paid Chase more than $100 for this conveyance. Further, according to OTC Rule 9, a conveyance from an agent to its principal "conveying realty purchased for and with funds of the principal" is not subject to documentary tax. Okla. Admin. Code § 710:30-1-9(8).

It is a well settled rule that the contempo-rancous construction of a statute by those charged with its execution and application, especially when it has long prevailed, while not controlling, is entitled to great weight and should not be disregarded or overturned except for cogent reasons, and unless it be clear that such construction is erroneous.

Oral Roberts Univ. v. Oklahoma Tax Comm'n, 1985 OK 97, ¶ 10, 714 P.2d 1013, 1015 (citing McCain v. State Election Bd., 1930 OK 323, 144 Okla. 85, 289 P. 759). This Court followed that well-settled rule in Johnston v. Oklahoma Tax Comm'n, supra, adopting the OTC's practice of calculating documentary taxes on the cash paid plus the amount of any purchase money mortgage granted as consideration for a conveyance of real property. And, we do so again here with respect to the OTC's Rule regarding conveyances between agents and principals. The Counties have failed to show that the Gentry property was not purchased with FNMA's money and that Chase did not assign its interest at the confirmation hearing as agent for its principle, FNMA. Consequently, the Counties are not entitled to judgment based on the Chase/FNMA transaction.

C. The Gentry Deeds

€ 31 Subsequent to taking title to the Gentry property, FNMA executed a Special Warranty Deed transferring the property to Homesales. Homesales then executed a Quit Claim Deed conveying the property to Irwin Mortgage. Both of these deeds recite that the consideration was "TEN Dollars ($10.00) and other good and valuable consideration." The deeds also state that the transactions are exempt from documentary taxes pursuant to Title 68 0.8. § 32028): "Deeds which without additional consideration, confirm, correct, modify or supplement a deed previously recorded." Chase argues that Home-sales acted as an intermediary to facilitate a repurchase of the Gentry loan by Irwin Mortgage pursuant to a preexisting agreement with FNMA. CL, Berkeley, 301 F.Supp. 22, (regarding obligation to repurchase loan in case of default as reflecting the parties' intent not to affect a sale). That agreement, however, is not in the record. More importantly, the summary judgment record does not show the amount of the "other good and valuable consideration" paid for these conveyances. In the absence of that evidence, the Counties have failed to address all material facts necessary to establish their right to judgment based on the special Warranty Deed and Quit Claim Deed.

CONCLUSION

1 32 Although the Counties are not authorized to prosecute violations of the Documentary Stamp Tax Act, they do have standing to challenge the exemptions from documentary taxes claimed in this case. However, because the Counties have failed to prove that consideration in excess of $100 was paid for any of the conveyances the district court found were taxable, they have failed to prove that any of the properties subject to those conveyances was "sold" for purposes of section 8201 of the Documentary Stamp Tax Act. Absent proof that a sale occurred, the Counties are not entitled to judgment. Because the Counties have failed to prove that a sale occurred, we do not address the validity of any exemption claimed with respect to the conveyances at issue in this case.⁸ The interlocutory order appealed is reversed and this case is remanded for further proceedings consistent with this Opinion.

CERTIORARI PREVIOUSLY GRANTED; CERTIFIED INTERLOCUTORY ORDER OF THE DISTRICT COURT REVERSED AND CASE REMANDED FOR FURTHER PROCEEDINGS.

1 83 REIF, V.C.J., WATT, EDMONDSON, GURICH, and FISCHER, S.J., concur. 34 KAUGER, J., concurs in part; dissents in part. 1 35 WINCHESTER, TAYLOR, and COMBS (by separate writing), JJ., dissent. 1 36 COLBERT, C.J., recused.

2 . The Defendants previously filed with this Court an Application to Assume Original Jurisdiction and Petition for Writ of Mandamus or Prohibition on July 11, 2012, case no. 110,868. This Court denied the application and declined to assume jurisdiction.

3 . The Counties contend that, in part, their suit is based on fraudulent representations made by the Defendants. The Counties argue that the fraud occurred when the Defendants misrepresented to the County Clerks that they were entitled to exemptions for the conveyances made subsequent to the entry of the judgments in the foreclosure actions in violation of the DSTA. The Counties do not alleged any fraud by Chase in procuring the foreclosure judgments. Further, our determination in Part I of this Opinion that the Counties do not have authority to prosecute violations of the DSTA disposes of the Counties' argument that they are permitted to assert a "fraud claim" in this litigation. One convicted of violating the DSTA is subject to the fines and penalties set out in 68 0.S.2011 § 3206. A county clerk's role in that process is specifically defined in paragraph D of that statute: "Should the county clerk become aware that the provisions of the documentary stamp law have or might have been violated, he or she shall immediately report the facts to the Oklahoma Tax Commission."

4 . - The transcript of the Hearing on the Motion to Dismiss held on May 16, 2012, provides at p. 21-22:

THE COURT: Well, no, 3206 says any person who willfully fails to purchase or affix the exact amount of stamps upon conviction be convicted of a thousand dollar fine and one year in jail and then it has-section D it says, "should the County Clerk become aware of the provisions of the documentary stamp law have or might have been violated, he or she shall immediately report the facts to the Oklahoma Tax Commission."

MR. ROBERTS: And that's been done.

THE COURT: That's been done. Is the Tax Commission-

MR. ROBERTS: The District Attorney-

THE COURT:-reviewing that?

MR. ROBERTS: Excuse me. The District Attorney prior to filing this action and prior to my being hired by the counties, with approval of the District Attorney, did make that contact. They have taken no action, but there's nothing-there's been no citation law that says, the exclusive remedy is a criminal prosecution....

5 . As Chase points out, the Oklahoma Tax Code provides an administrative remedy for it to resolve this tax issue that is bypassed by the Counties' prosecution of this case. Nonetheless, this Court has recognized that in limited circumstances, exhaustion of the OTC's administrative process is not always required. See, e.g., Glass, Oklahoma Tax Comm'n v. Smith.

6 . The documentary tax statutes applied in Jim Walter Homes were renumbered by Laws 1988, ch. 162, § 160, eff. Jan. 1, 1992: Laws 1991, ch. 338, § 2, eff. Jan. 1, 1992, and are essentially identical to the DSTA statutes at issue in this case with two exceptions: the addition of a definition of "consideration" to section 3201 and the expansion of the mortgage foreclosure deed exemption in section 3202(13) to included "holders" of the mortgage in addition to "original grantors."

7 . - Other state courts construing similar or identical definitions of "consideration" in documentary tax statutes have reached the same result. Crescent Miami Ctr., LLC v. Florida Dep't of Revenue, 903 So.2d 913 (Fla.2005)grantor's wholly owned limited liability company was not "purchaser" for purposes of documentary tax regarding transfer of real property where no consideration was exchanged and beneficial ownership was not changed); ZIRP-IC, LLC v. Hennepin County, Nos. 31282, 04-02759, 2005 WL 937432 (Minn. Tax Ct. Regular Div. April 21, 2005) (no documentary tax due on deed in lieu of foreclosure because the value of the property was less than the mortgage balance, therefore the consideration for the transfer, a negative number, did not exceed the statutory minimum for imposing documentary tax); Real Estate Transfers-Documentary Tax, TAM-88-15, 1988 WL 232627 (S.C.Tax.Comm'n) (deed conveying real property from one corporation to another corporation not subject to documentary tax where both corporations were owned by the same individual and no consideration was paid).

8 . We also do not address Chase's argument, raised for the first time in this appeal, that the Counties' attempt to collect documentary taxes is barred by the applicable statute of limitations. Generally, this Court does not reach issues the appealing party fails to raise in the trial court and we decline to do so here. Bottles v. State ex rel. Oklahoma State Bd. of Med. Licensure and Supervision, 1996 OK 59, ¶ 4, 917 P.2d 471, 472. See also, Jackson v. Jackson, 2002 OK 25, ¶ 12, n. 12, 45 P.3d 418, 425. But, we do so without prejudice to Chase's assertion of this argument in the district court on remand.