STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-1057
CAJUNDOME COMMISSION
VERSUS
CARL MECHE, DIRECTOR SALES TAX, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2007-3801 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Gary McGoffin Ryan M. Goudelocke Durio, McGoffin, Stagg & Ackerman P. O. Box 51308 Lafayette, LA 70505-1308 (337) 233-0300 Counsel for Plaintiff/Appellant: Cajundome Commission
Robert R. Rainer Drew M. Talbot Rainer, Anding & McLindon 8480 Bluebonnet Boulevard, Suite D Baton Rouge, LA 70810 (225) 766-0200 Counsel for Defendants/Appellees: Cynthia Bridges Carl Meche, Director Sales Tax Division, LPSB DECUIR, Judge.
The Cajundome Commission (Commission) appeals a grant of partial summary
judgment and writ of mandamus ordering it to collect and remit sales tax to the
Lafayette Parish School Board (Board) and the State Department of Revenue
(Department).
FACTS
The Cajundome is a public facility, a joint venture of the University of
Louisiana at Lafayette and the City of Lafayette. It is governed by a five-member
Commission which promotes and hosts a variety of events at which it sells food,
beverages, and other merchandise.
For the first time since it opened in 1985, the Commission was jointly audited
by the Department and the Board for the period January 1, 2004 to June 30, 2007.
The audit revealed that, though registered as a dealer with both the Department and
the Board, the Commission did not collect nor remit sales tax on its sales of taxable
items. Prior to 2004, the Commission contracted with outside vendors for the sales
of catering service and merchandise, who were in turn responsible for collecting and
remitting the sales tax. During 2004, the Commission purchased the assets of one of
these vendors, Artisan Creative Catering, Inc. (Artisan).
While the audit was pending, the Commission filed a Petition for Declaratory
Judgment averring that it was not a “person” or “dealer” under the sales tax statutes
and, therefore, not required to collect or pay sales tax. Artisan was included as a
party plaintiff. The Department reconvened for the delinquent tax, interest, penalties
and attorney fees, and the Department and Board filed a Joint Motion for Partial
Summary Judgment directed to the principal demand alone. Prior to hearing, the
Department and Board filed a Joint Petition for Writ of Mandamus ordering the
Commission to begin collecting and remitting the sales tax on all taxable transactions. The writ of mandamus was granted, and the Commission filed a supervisory writ to
this court which denied the writ.
Subsequently, the district court granted the motion for partial summary
judgment declaring the Commission to be legally obligated to charge, collect, and
remit sales taxes to the defendants. The Commission lodged this appeal alleging the
district court erred in granting the writ of mandamus and granting partial summary
judgment. The Department and Board answered seeking damages for frivolous
appeal.
PARTIAL SUMMARY JUDGMENT
The Commission contends the trial court erred in granting the Defendants’
Motion for Partial Summary Judgment. An appellate court reviews summary
judgments de novo, applying the same criteria as the district court in determining
whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of
Louisiana State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment
is properly granted when the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show there is no genuine issue
as to material facts, and the mover is entitled to judgment as a matter of law. La.Code
Civ.P. art. 966(B).
In this case, we are called upon to decide a dispute between the parties over the
interpretation of the sales and use tax statute. Specifically, we must decide whether
the Commission has a duty under the statute to collect and remit sales and use taxes
to the Department and Board.
The interpretation of a statutory provision starts with the language of the
provision itself. Sabine Parish Police Jury v. Comm’r of Alcohol & Tobacco Control,
04-1833 (La. 4/12/05), 898 So.2d 1244. “When the language of the law is susceptible
2 of different meanings, it must be interpreted as having the meaning that best conforms
to the purpose of the law, and the meaning of ambiguous words must be sought by
examining the context in which they occur and the text of the law as a whole.”
La.Civ. Code arts. 10 and 12; Sabine, 04-1833 at p. 9, 898 So.2d at 1250. “However,
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 legislative intent.” La.Civ. Code art. 9; Sabine, 04-1833 at p.
9, 898 So.2d at 1250. This principle applies to tax statutes. Cleco Evangeline, LLC
v. Louisiana Tax Commission, (La. 4/3/02), 813 So.2d 351; Tarver v. E.I. Du Pont De
Nemours and Co., 93-1005, p. 3 (La. 3/24/94), 634 So.2d 356, 358.
Sales tax law requires that a “dealer” collect the sales tax owed by the
consumer and to remit it to the appropriate levying body. La.R.S. 47:304 and La.R.S.
47:337.17. Louisiana Revised Statutes 47:301(4) provides in pertinent part:
“Dealer” includes every person who manufactures or produces tangible personal property for sale at retail, for use, or consumption, or distribution, or for storage to be used or consumed in a taxing jurisdiction.” “Dealer” is further defined to mean:
....
(b) Every person who sells at retail, or who offers for sale at retail, or who has in his possession for sale at retail, or for use, or consumption, or distribution, or storage to be used or consumed in the taxing jurisdiction, tangible personal property as defined herein.
As noted above, the Commission is registered as a dealer with both the Department
and Board. Nevertheless, it contends that it is not a “dealer” because it is not a
“person” under sales tax law, and by definition a “dealer” is a “person”.
Louisiana Revised Statutes 47:301(8) provides in pertinent part:
(8)(a) “Person”, except as provided in Subparagraph (c), includes any individual, firm, copartnership, joint adventure, association, corporation, estate, trust, business trust, receiver, syndicate, this state, any parish, city and parish, municipality, district or other political
3 subdivision thereof or any board, agency, instrumentality, or other group or combination acting as a unit, and the plural as well as the singular number.
(c)(i) For purposes of the payment of the state sales and use tax and the sales and use tax levied by any political subdivision, “person” shall not include this state, any parish, city and parish, municipality, district, or other political subdivision thereof, or any agency, board, commission, or instrumentality of this state or its political subdivisions.
The Commission, relying on La.R.S. 47:301(8)(c)(i), contends that by definition it is
not a person. The Department and Board respond that the Commission is a person
as defined in La.R.S. 47:301(8)(a). We find that under the plain language of the
statute the Commission is a person for all purposes under the sales and use tax
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-1057
CAJUNDOME COMMISSION
VERSUS
CARL MECHE, DIRECTOR SALES TAX, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2007-3801 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Gary McGoffin Ryan M. Goudelocke Durio, McGoffin, Stagg & Ackerman P. O. Box 51308 Lafayette, LA 70505-1308 (337) 233-0300 Counsel for Plaintiff/Appellant: Cajundome Commission
Robert R. Rainer Drew M. Talbot Rainer, Anding & McLindon 8480 Bluebonnet Boulevard, Suite D Baton Rouge, LA 70810 (225) 766-0200 Counsel for Defendants/Appellees: Cynthia Bridges Carl Meche, Director Sales Tax Division, LPSB DECUIR, Judge.
The Cajundome Commission (Commission) appeals a grant of partial summary
judgment and writ of mandamus ordering it to collect and remit sales tax to the
Lafayette Parish School Board (Board) and the State Department of Revenue
(Department).
FACTS
The Cajundome is a public facility, a joint venture of the University of
Louisiana at Lafayette and the City of Lafayette. It is governed by a five-member
Commission which promotes and hosts a variety of events at which it sells food,
beverages, and other merchandise.
For the first time since it opened in 1985, the Commission was jointly audited
by the Department and the Board for the period January 1, 2004 to June 30, 2007.
The audit revealed that, though registered as a dealer with both the Department and
the Board, the Commission did not collect nor remit sales tax on its sales of taxable
items. Prior to 2004, the Commission contracted with outside vendors for the sales
of catering service and merchandise, who were in turn responsible for collecting and
remitting the sales tax. During 2004, the Commission purchased the assets of one of
these vendors, Artisan Creative Catering, Inc. (Artisan).
While the audit was pending, the Commission filed a Petition for Declaratory
Judgment averring that it was not a “person” or “dealer” under the sales tax statutes
and, therefore, not required to collect or pay sales tax. Artisan was included as a
party plaintiff. The Department reconvened for the delinquent tax, interest, penalties
and attorney fees, and the Department and Board filed a Joint Motion for Partial
Summary Judgment directed to the principal demand alone. Prior to hearing, the
Department and Board filed a Joint Petition for Writ of Mandamus ordering the
Commission to begin collecting and remitting the sales tax on all taxable transactions. The writ of mandamus was granted, and the Commission filed a supervisory writ to
this court which denied the writ.
Subsequently, the district court granted the motion for partial summary
judgment declaring the Commission to be legally obligated to charge, collect, and
remit sales taxes to the defendants. The Commission lodged this appeal alleging the
district court erred in granting the writ of mandamus and granting partial summary
judgment. The Department and Board answered seeking damages for frivolous
appeal.
PARTIAL SUMMARY JUDGMENT
The Commission contends the trial court erred in granting the Defendants’
Motion for Partial Summary Judgment. An appellate court reviews summary
judgments de novo, applying the same criteria as the district court in determining
whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of
Louisiana State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment
is properly granted when the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show there is no genuine issue
as to material facts, and the mover is entitled to judgment as a matter of law. La.Code
Civ.P. art. 966(B).
In this case, we are called upon to decide a dispute between the parties over the
interpretation of the sales and use tax statute. Specifically, we must decide whether
the Commission has a duty under the statute to collect and remit sales and use taxes
to the Department and Board.
The interpretation of a statutory provision starts with the language of the
provision itself. Sabine Parish Police Jury v. Comm’r of Alcohol & Tobacco Control,
04-1833 (La. 4/12/05), 898 So.2d 1244. “When the language of the law is susceptible
2 of different meanings, it must be interpreted as having the meaning that best conforms
to the purpose of the law, and the meaning of ambiguous words must be sought by
examining the context in which they occur and the text of the law as a whole.”
La.Civ. Code arts. 10 and 12; Sabine, 04-1833 at p. 9, 898 So.2d at 1250. “However,
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 legislative intent.” La.Civ. Code art. 9; Sabine, 04-1833 at p.
9, 898 So.2d at 1250. This principle applies to tax statutes. Cleco Evangeline, LLC
v. Louisiana Tax Commission, (La. 4/3/02), 813 So.2d 351; Tarver v. E.I. Du Pont De
Nemours and Co., 93-1005, p. 3 (La. 3/24/94), 634 So.2d 356, 358.
Sales tax law requires that a “dealer” collect the sales tax owed by the
consumer and to remit it to the appropriate levying body. La.R.S. 47:304 and La.R.S.
47:337.17. Louisiana Revised Statutes 47:301(4) provides in pertinent part:
“Dealer” includes every person who manufactures or produces tangible personal property for sale at retail, for use, or consumption, or distribution, or for storage to be used or consumed in a taxing jurisdiction.” “Dealer” is further defined to mean:
....
(b) Every person who sells at retail, or who offers for sale at retail, or who has in his possession for sale at retail, or for use, or consumption, or distribution, or storage to be used or consumed in the taxing jurisdiction, tangible personal property as defined herein.
As noted above, the Commission is registered as a dealer with both the Department
and Board. Nevertheless, it contends that it is not a “dealer” because it is not a
“person” under sales tax law, and by definition a “dealer” is a “person”.
Louisiana Revised Statutes 47:301(8) provides in pertinent part:
(8)(a) “Person”, except as provided in Subparagraph (c), includes any individual, firm, copartnership, joint adventure, association, corporation, estate, trust, business trust, receiver, syndicate, this state, any parish, city and parish, municipality, district or other political
3 subdivision thereof or any board, agency, instrumentality, or other group or combination acting as a unit, and the plural as well as the singular number.
(c)(i) For purposes of the payment of the state sales and use tax and the sales and use tax levied by any political subdivision, “person” shall not include this state, any parish, city and parish, municipality, district, or other political subdivision thereof, or any agency, board, commission, or instrumentality of this state or its political subdivisions.
The Commission, relying on La.R.S. 47:301(8)(c)(i), contends that by definition it is
not a person. The Department and Board respond that the Commission is a person
as defined in La.R.S. 47:301(8)(a). We find that under the plain language of the
statute the Commission is a person for all purposes under the sales and use tax
statutes except for the payment of sales and use taxes on its purchases. Accordingly,
we find the Commission is also a “dealer” to the extent that a “dealer” is required to
collect and remit sales and use tax.
The Commission argues that there is no difference between the payment of
taxes and the collection and remittance of taxes. We disagree.
Laws on the same subject matter must be interpreted in reference to each other.
La.Civ.Code art. 13. The Louisiana Supreme Court has followed the logic of
collectively interpreting statutes that deal with the same subject. First Nat. Bank v.
City of New Orleans, 555 So.2d 1345 (La.1990). A statutory provision should be
construed with the remaining portions of the statute, but more importantly, all statutes
on the same subject matter should be read together and interpreted as a whole. Id.,
Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).
While there is no statutory definition of these terms, the entire sales and use tax
statutory scheme is based on the payment, collection, and remittance of the taxes.
Despite instances where the language is used interchangeably, the overwhelming
4 weight of the statutory usage indicates that they are separate and distinct functions.
Were we to accept the Commission’s argument, it would render the distinction
between La.R.S. 47:301(8)(a) and La.R.S.47:301(8)(c) meaningless and confuse the
obligations of the dealer and consumer throughout the statute. Clearly, “[t]he seller’s
[dealer’s] obligation to remit the taxes is separate from the purchaser’s obligation to
pay the tax.” AWC, Inc. v. CSF Const., Inc. 05-865, p. 2 (La.App. 4 Cir. 4/26/06),
931 So.2d 382, 384; See also Traigle v. Fairgrounds Corp. 288 So.2d 409 (La.App.
4 Cir. 1974). The dealer is liable for payment of the tax only if he fails to charge,
collect, and remit the tax. La.R.S. 47:304E; La.R.S. 47:337.17C and E; Baton Rouge
Press, Inc. v. Andries, 03-808 (La.App. 3 Cir. 2/4/04), 865 So.2d 950, writ denied,
04-592 (La. 6/4/04), 876 So.2d 91.
Accordingly, we find the exclusion in La.R.S. 47:301(8)(c) is only applicable
to the payment of sales and use taxes. The Commission is required to collect and
remit the sales and use tax to the Department and Board. We note that the trial
court’s ruling granting partial summary judgment very tightly frames the question
before this court by enumerating and preserving the remaining issues for trial on the
merits. Therefore, this opinion specifically does not reach the question of whether
the Commission failed to collect and remit sales and use taxes in the past or whether
it is required to pay any tax it may have failed to remit. Moreover, this opinion does
not reach the question of which, if any, of the specific goods or services offered by
the Commission, or any other entity which might be construed to be a “person” under
the statute, are subject to the sales and use tax.
WRIT OF MANDAMUS
The Commission alleges the district court erred in issuing the writ of
mandamus ordering it to collect and remit the sales tax. We disagree.
5 In denying the Commission’s application for a supervisory writ on this issue,
we noted that the Commission’s own arguments provided support for the issuance of
the writ of mandamus. Moreover, the open question regarding its liability for
payment of uncollected taxes, and the impracticality or impossibility of collecting
from consumers in the future should they fail to collect taxes at the time of purchase,
both support our previous conclusion that there is no other viable relief by ordinary
means available to the Department and Board. Accordingly, we affirm the trial
court’s issuance of the writ of mandamus in this case.
FRIVOLOUS APPEAL
The appellate court may award damages for a frivolous appeal. La.Code Civ.P.
art. 2164. “This provision is penal in nature and is to be strictly construed.”
Capdeville v. Winn Dixie Store #1473, 07-1425 (La.App. 3 Cir. 4/9/08), 981 So.2d
121, 125. “An appeal will not be deemed frivolous unless it is taken solely for delay,
fails to raise a serious legal question, or counsel does not seriously believe in the
proposition of law he is advancing.” Id. at 125. Appeals are favored and appellate
courts are reluctant to impose damages for frivolous appeals. Id.
Our review of this record does not show that this appeal was taken solely for
delay or that the Commission did not seriously believe it was entitled to relief. An
award of damages for frivolous appeal is not warranted.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed.