Columbia Gas Transmission Corp. v. Nemours

217 S.E.2d 919, 159 W. Va. 1, 1975 W. Va. LEXIS 280
CourtWest Virginia Supreme Court
DecidedSeptember 9, 1975
DocketNo. 13392
StatusPublished
Cited by18 cases

This text of 217 S.E.2d 919 (Columbia Gas Transmission Corp. v. Nemours) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Columbia Gas Transmission Corp. v. Nemours, 217 S.E.2d 919, 159 W. Va. 1, 1975 W. Va. LEXIS 280 (W. Va. 1975).

Opinion

Haden, Chief Justice:

This is an appeal by Columbia Gas Transmission Corporation from a final order of the Circuit Court of Kana-wha County, West Virginia, denying Columbia’s claim [3]*3against E. I. du Pont de Nemours and Company for an alleged breach of contract. Columbia claims DuPont failed to honor a tax adjustment clause in a contract between Columbia and DuPont involving the sale and delivery of natural gas from Columbia to DuPont. DuPont also cross-appeals against Columbia, complaining of the adverse judgment of the circuit court in its decision that the contract and Tax Adjustment Clause in question signified the parties’ intention to apportion liability for Business & Occupation Taxes imposed on Columbia incident to the sale and delivery of natural gas to DuPont.

The principal issues before this Court are: (1) whether the contract in question and its Tax Adjustment Clause purported to cover the incidence and apportionment of liability of Business & Occupation Tax imposed upon Columbia due to its business activities of selling and delivering natural gas to DuPont; and if the first question is answered in the affirmative, (2) whether the Tax Adjustment Clause contemplated the apportionment of increased tax liability imposed upon Columbia by reason of an administrative assessment made by the State Tax Commissioner.

On the first issue, the circuit court ruled in Columbia’s favor. It held that the Business & Occupation Tax was included in DuPont’s promise to reimburse United Fuel Gas Company (Columbia’s predecessor), and that it was a tax “ fin respect of,’ the gas delivered by United Fuel to duPont.” On the second issue, the circuit court ruled in DuPont’s favor. It held: that the Tax Adjustment Clause of the sales agreement “contemplated only additional tax liability created by legislative action,” as distinguished from administrative assessment by the tax commissioner or liabilities as fixed by the courts; that the additional Business & Occupation Taxes paid by Columbia’s predecessor were not increased taxes “levied, assessed or fixed by ... the State of West Virginia;” and therefore, that these taxes were not subject to appor[4]*4tionment under the Tax Adjustment Clause of the sales agreement between Columbia and DuPont.

From stipulated facts it appears that in 1953, the then Tax Commissioner, C. H. Koontz, subsequent to a tax audit of the business operations of United Fuel Gas, issued a written communication to United Fuel to the effect that no audit findings would be made against it, because United Fuel was reporting its several operations in the proper tax classifications under the Business & Occupation Tax.

In 1956, United Fuel and DuPont entered into the sales agreement which is the subject of this appeal. The sales agreement generally provided for the sale and delivery of natural gas from West Virginia and southwest sources by Columbia to DuPont for its manufacturing operations at its Belle, West Virginia plant at a stated consideration for thousands of cubic feet of gas (MCF) sold and delivered. This agreement contained an escalation clause entitled a “Tax Adjustment Clause” as follows:

“Tax Adjustment. In addition to the purchased gas adjustment referred to above, Buyer shall reimburse Seller in an amount equal to the amount of any sales, transactions, occupation, service, production, severance, gathering, transmission, export or excise tax, assessment, fee or other exaction hereafter levied, assessed or fixed by the United States or the State of West Virginia or any other state or other governmental authority, and any tax, assessment, exaction, or fee of a similar nature or equivalent in effect (not including income, excess profits, capital stock, franchise or general property taxes), in addition to or greater than those being levied, assessed or fixed at the date of this agreement, if any, on, measured by, in respect of, or applicable to the natural gas to be delivered by Seller to Buyer under this agreement and which Seller may be liable for during any month of the term hereof, either directly or indirectly through any obligation to reimburse others and which has not been [5]*5included in determining the unit cost under the Purchased Gas Adjustment clause set forth in Section 2 hereof. Such reimbursement shall be included as a separate item or items in the bills to be rendered monthly by Seller to Buyer for gas sold under this agreement. In the event all or any part of such tax liability of Seller is not determined or is not reasonably determinable so as to be included in such monthly bills for gas, then the amount of such reimbursement required in respect of such tax liability not determined or reasonably determinable shall be set forth for all months in any calendar year in a statement to be rendered by Seller to Buyer by April 1 of the following year and Buyer shall pay the amount due pursuant to such statement on or before May 1 of such following year.”

Beginning prior to 1953 and continuing at the time Columbia entered into the sales agreement with DuPont, Columbia reported for tax purposes the gross proceeds of its sales of gas to DuPont and similar users under W. Va. Code 1931, 11-13-2(c), as amended, known in Business & Occupation Tax parlance as “the wholesaling category.” This tax rate is at the lower end of the scale in comparison to other rates levied by the Legislature in the Business & Occupation Tax. The rate in question in 1956 was 19-1/20 per hundred dollars of gross proceeds, or gross valuation of product in the wholesaling category. In 1959, the Legislature amended the rate applicable to the wholesaling category, Section 2(c), supra, by increasing it to 250 per hundred dollars of gross proceeds. Pursuant to this tax increase levied by the Legislature and in accordance with the Tax Adjustment Clause, Columbia billed DuPont to recover the tax increase imposed against its business operations. DuPont paid those billings without question.

The precipitating cause of this litigation was administrative action taken by State Tax Commissioner, G. Thomas Battle, in the year 1963. As a result of a complete field audit of United Fuel Gas’ operations, Commis[6]*6sioner Battle concluded that Columbia was improperly reporting its sales to DuPont under the wholesaling classification. Thereafter, he issued an assessment for taxes insufficiently returned based upon his conclusion that the gas sales to the industrial user, DuPont, should have been properly reported to the tax commissioner under Section 2(d), (W. Va. Code, 1931, 11-13-2(d), as amended) known in Business & Occupation Tax parlance as the “public utility-natural gas category.” This tax rate was much greater than the 250 per hundred dollars rate previously reported by United Fuel in the wholesaling category. The rate in question for the public utility-natural gas category was $3.90 per hundred dollars of gross income. Thus, the tax commissioner, on December 10, 1963, assessed Columbia at the higher rate of $3.90 per hundred for a five-year audit period, resulting in a total assessment of taxes and penalties in excess of $1,000,000.

United Fuel objected to this assessment and petitioned the tax commissioner for a re-assessment, which was denied by the commissioner.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Alex Lyon & Son v. James R. Leach
West Virginia Supreme Court, 2020
Wheeling Hospital v. Charles O. Lorensen, WV Tax Comm.
742 S.E.2d 86 (West Virginia Supreme Court, 2013)
Legg v. Johnson, Simmerman & Broughton, L.C.
576 S.E.2d 532 (West Virginia Supreme Court, 2002)
State Farm Fire v. Thomas
Fourth Circuit, 2000
Interstate Properties, Inc. v. K-Mart Corp.
88 F. Supp. 2d 609 (S.D. West Virginia, 2000)
Coleman v. Sopher
499 S.E.2d 592 (West Virginia Supreme Court, 1997)
Milner Hotels, Inc. v. Norfolk & Western Railway Co.
822 F. Supp. 341 (S.D. West Virginia, 1993)
Breedlove v. Pennzoil Co.
399 S.E.2d 187 (West Virginia Supreme Court, 1990)
Fox Grocery Co. v. University Foods, Inc.
382 S.E.2d 43 (West Virginia Supreme Court, 1989)
Glenmark Associates, Inc. v. Americare of West Virginia, Inc.
371 S.E.2d 353 (West Virginia Supreme Court, 1988)
National Mutual Insurance v. McMahon & Sons, Inc.
356 S.E.2d 488 (West Virginia Supreme Court, 1987)
Cress v. Board of Regents
15 Ct. Cl. 216 (West Virginia Court of Claims, 1984)
Murray v. Kaiser Aluminum & Chemical Corp.
591 F. Supp. 1550 (S.D. West Virginia, 1984)
COLUMBIA GAS, ETC. v. EI Du PONT, ETC.
217 S.E.2d 919 (West Virginia Supreme Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
217 S.E.2d 919, 159 W. Va. 1, 1975 W. Va. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/columbia-gas-transmission-corp-v-nemours-wva-1975.