SCIENTIFIC DRILLING INTERNATIONAL, INC. v. Carl MECHE, the Director of the Lafayette Parish School Board Sales Tax Division, 29 So. 3d 1283

GENOVESE, Judge. | iDefendant/Appellant, Carl Meche, the Director of the Lafayette Parish School Board Sales Tax Division (School Board), appeals from the trial court’s grant of

summary judgment in favor of Plaintiff/Appel-lee, Scientific Drilling International, Inc. (Scientific), finding no use tax was owed by Scientific to the School Board. For the following reasons, we affirm the judgment of the trial court. FACTS Scientific filed a Petition for Refund of Tax Paid Under Protest against the School Board in December of 2006. Scientific’s payment of a use tax to the School Board was made, under protest, pursuant to an audit of Scientific’s business operations from May 1, 2003, through March 31, 2006. Both Scientific and the School Board filed motions for

summary judgment. According to the School Board’s Motion for Partial

Summary Judgment, it “issued to [Scientific] a formal Notice of Assessment on July 10, 2006” after which Scientific paid “$443,629.24 ... under protest....” In its Cross-Motion for

Summary Judgment, Scientific asserted that it was entitled to a “refund [of] the entirety of [its] payment under protest.” In its memorandum in support of its motion, Scientific argued that according to the Lafayette Parish School Board Sales and Use Tax Ordinance (Lafayette Ordinance), “only tangible personal property that is stored for use in the Parish is subject to the tax levy by the Ordinance.” A hearing on the parties’ counter motions for

summary judgment was held on July 20, 2009. The trial court ruled in favor of Scientific, stating: “It appears to me that no tax was levied on property stored for use in another parish, no tax was levied |2by the taxing authority.” A judgment to this effect was signed by the trial court the same day. The School Board appeals. ASSIGNMENTS OF ERROR The School Board asserts the following assignments of error: I. The [trial court] committed reversible error in granting the [Cross-]Motion for

Summary Judgment filed by Scientific, and in denying the Motion for Partial

Summary Judgment filed by the School Board, by holding that the applicable Lafayette Parish Ordinances do not impose a use tax on articles of tangible personal property purchased out-of-state tax free and then imported into Lafayette Parish for interchangeable, universal,] and indiscriminate use both within and outside the Parish. II.

The [trial court] committed reversible error in failing to hold that pursuant to the “taxable moment” rale, adopted by the Supreme Court of Louisiana and the Third Circuit Court of Appeal, the use tax attached the moment the imported property had ended its interstate travels, came to rest in Lafayette Parish, and became a part of the mass of the property of Lafayette Parish were it was stored, repaired[,] and distributed. III.

The [trial court] committed reversible error in failing to hold that Scientific overcame the legal presumption that its imported property, upon coming to rest in Lafayette Parish for interchangeable, universal!,] and indiscriminate ultimate use in all of Scientific’s market areas, was presumed to be subject to Lafayette Parish use tax. STANDARD OF REVIEW Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for

summary judgment as follows: A motion for

summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 2006-363[,] p. 3 (La.11/29/06), 950 So.2d 544, 546, see [La.Code Civ. P.] art. 966. A

summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether

summary judgment is appropriate; ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 2006-1181[,] p. 17 (La.3/9/07), 951 So.2d 1058, 1070; King v. Parish National Bank, 2004-0337[,] p. 7 (La.10/19/04), 885 So.2d 540, 545; Jones v. Estate of Santiago, 2003—1424[,] p. 5 (La.4/14/04), 870 So.2d 1002, 1006. Samaba v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). LAW AND DISCUSSION Louisiana Civil Code

Article 9 provides: “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further

interpretation may be made in search of the intent of the legislature.” [T]ax statutes are to be interpreted liberally in favor of the taxpayer, and if the statute can reasonably be interpreted more than one way, the

interpretation less onerous to the taxpayer shall be adopted. Tarver v. E.I. DuPont de Nemours and Co., 616 So.2d 216 (La.App. 5th Cir.1993), affirmed, 93-1005 (La.3/24/95); 634 So.2d 356. Clyde Juneau Co., Inc. v. Caddo-Shreveport Sales and Use Tax Comm’n, 28,433, p. 6 (La.App. 2 Cir. 6/26/96), 677 So.2d 610, 613. The relevant

section of the Lafayette ordinance specifically applicable in this case provides, in pertinent part (emphasis added): IMPOSITION OF TAX

Section 2.01. There is hereby levied from and after December 1, 1965, for the purposes stated in the proposition set forth in the

preamble to this resolution, a tax upon the sale at retail, the use, the lease or rental, the consumption and storage for use or consumption of tangible personal property and on sales of services within this Parish, as defined herein;.... On appeal, the School Board cites Firestone Polymers v. Calcasieu Parish School System, 07-501 (La.App. 3 Cir. 10/31/07), 969 So.2d 748, and Word of Life Christian Center v. West, 04-1484 (La.4/17/06), 936 So.2d 1226, as applicable jurisprudence in the instant matter.

The School Board argues that these cases ^support its contention that all tangible property imported into Lafayette Parish is taxable at the moment it comes to rest in the parish. In Firestone, the taxpayer sought a refund of taxes paid on shipping containers leased out-of-state, delivered to its plant in Calcasieu Parish, Louisiana, and stored and maintained there while periodically used in interstate commerce. This court affirmed the

summary judgment in favor of the tax collector because Louisiana’s interstate commerce exclusion, found in La. R.S. 47:305(E), did not prohibit the tax collector from applying the lease tax on shipping containers. In Word of Life, the taxpayer, a nonprofit religious organization located in Ascension Parish, challenged a use tax levied on its purchase and use of airplanes.

After an extensive examination of the “taxable moment” and “ultimate use” doctrines, our supreme court held that once the airplanes were imported and parked in a hangar in East Baton Rouge Parish, they came to rest in Louisiana; thus, a “taxable moment” occurred in Louisiana. Id. at 1239. Though the supreme court determined that the taxpayer was subject to Louisiana’s use tax in Louisiana, the supreme court also held that the applicable

section of the Ascension Parish ordinance did not grant it the authority to impose a use tax on property delivered outside of the territorial limits of the parish. Scientific argues that Firestone and Word of Life are not controlling in this case. In brief, Scientific asserts: [Firestone and Word of Life ] only answer the first question of whether the Parish can levy a tax on goods moving in interstate commerce. However, while the Parish may have the authority to levy a tax, the School Board neglects to consider the second question of whether the Ordinance actually levies a tax on storage.

In the case of the Ordinance at issue, it specifically, and clearly, only imposes a tax on property “stored for use or consumption in the Parish.” IsWe agree. Though the aforementioned cases uphold the authority of a taxing agency to impose such a use tax, Ihe language of the Lafayette ordinance does not grant the authority to impose such a tax on property stored but not used in Lafayette Parish. Further, we find instructive our holding hi Lafayette Parish School Board v. C & B Sales & Service, Inc., 98-1096, 98-1097 (La.App. 3 Cir. 2/3/99), 735 So.2d 6.

There, analogous to the instant matter, the issue was whether compressors that were assembled and stored in Lafayette Parish, but used elsewhere, were subject to a use tax in Lafayette Parish. Analyzing the same ordinance, this court affirmed the trial court’s holding that the Lafayette ordinance does not impose a use tax on property which is stored but not used in Lafayette Parish. Applying the terms of the ordinance at issue herein, no use tax is due on equipment stored but not used in Lafayette Parish.

For there to be a “taxable moment,” as the School Board argues, a provision authorizing an imposition of a use tax on property which is stored but not used must exist in the ordinance. The Lafayette ordinance simply imposes a use tax on property that is both stored and used in Lafayette Parish. We find no error in the trial court’s ruling that Scientific owed no use tax to the School Board for the property that it stored, but did not use, in Lafayette Parish. DECREE For the above reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against Defendant/Appellant, Carl Meche, the Director of the Lafayette Parish School Board Sales Tax Division. AFFIRMED. SAUNDERS, J., dissents and assigns written reasons.