Con-Way Inc. & Affiliates v. Department of Revenue

302 P.3d 804, 353 Or. 616, 2013 WL 2370587, 2013 Ore. LEXIS 411
CourtOregon Supreme Court
DecidedMay 31, 2013
DocketTC 5003; SC S060141
StatusPublished
Cited by7 cases

This text of 302 P.3d 804 (Con-Way Inc. & Affiliates v. Department of Revenue) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Con-Way Inc. & Affiliates v. Department of Revenue, 302 P.3d 804, 353 Or. 616, 2013 WL 2370587, 2013 Ore. LEXIS 411 (Or. 2013).

Opinion

BREWER, J.

The issue presented in this appeal is whether a taxpayer may satisfy its obligation to “pay annually to the state” the $75,000 corporate minimum tax, ORS 317.090(2),1 by claiming on its corporate excise tax return a $75,000 “Business Energy Tax Credit” (BETC) under ORS 315.354.2 The Tax Court concluded that the taxpayer, Con-Way, could satisfy its tax liability under ORS 317.090(2) by claiming a BETC on its tax return. The Department of Revenue (department) appealed, arguing that the Tax Court’s conclusion was inconsistent with ORS 317.090(2), on the ground that a tax credit cannot be used to pay or otherwise satisfy the minimum tax imposed under ORS 317.090(2). We affirm.

The pertinent facts are undisputed. Con-Way is a corporation that does business within the State of Oregon. For tax year 2009, Con-Way reported Oregon sales of $79,304,714, resulting in a tax liability of $75,000 under ORS 317.090(2). Also for tax year 2009, Con-Way possessed a valid BETC under ORS 315.354(1) that it had purchased from a third party in 2008.3 On its 2009 corporate excise tax return, Con-Way attempted to apply that credit against its tax liability of $75,000 under ORS 317.090(2). Con-Way also [618]*618had paid $50,000 in estimated tax, and it sought to have $25,000 of that amount applied to its 2010 tax liability and to have the remaining $25,000 refunded.

The department disallowed Con-Way’s application of the BETC to its $75,000 tax liability under ORS 317.090(2).4 The department then applied the $50,000 in estimated payments to the liability and assessed a deficiency of $25,000, together with associated penalties and interest, against Con-Way. Con-Way timely appealed the department’s decision, and the case was designated for hearing in the Regular Division of the Tax Court.

Before the Tax Court, Con-Way argued that, because ORS 315.354(1) provides that a BETC applies to “taxes otherwise due * * * under ORS chapter 317,” and because no statute rendered the BETC inapplicable, the department had erroneously disallowed the application of the BETC against its tax liability under ORS 317.090(2). The department replied that ORS 317.090(2) requires a taxpayer to “pay annually to the state *** a minimum tax,” that the term “pay” means to pay in cash, and the term “minimum” means that the amount of tax to be paid cannot be reduced. Because, according to the department, a tax credit only reduces a tax liability, and is not a form of cash payment, the department asserted that Con-Way could not satisfy its tax liability under ORS 317.090(2) by using the BETC.

The Tax Court rejected the department’s argument, explaining:

“In effect, the department asks the court to add words to the statute so that it reads that there is an obligation to pay ‘in cash and without regard to any tax credit otherwise available to the taxpayer.’ Not only does the statute not contain those words, the context of the revenue laws as a whole indicates that when the legislature desires to prevent a tax credit from being used to satisfy a minimum tax obligation, it knows how to say so and has, in fact, said so.”

[619]*619In support of its conclusion, the court noted that, unlike ORS 315.354(1), ORS 317.151(5)(a), which establishes a credit for contributions to certain technical property, provides that the credit “shall not be allowed against the tax imposed under ORS 317.0905 and that ORS 291.349(3), relating to the “kicker” tax credit for corporations, also provides that “no credit shall be allowed against tax liability imposed by ORS 317.090.”6 Finally, the Tax Court concluded:

“The obligation to pay the minimum tax to the state is no different from the obligation under ORS 317.070[7] to pay to the state the ‘regular’ tax. Credits may be applied against the regular tax and the argument of the department that the legislature meant something substantially different when it used the words ‘pay’ and ‘payable’ in ORS 317.090 is without statutory support. Further, the statutory text relating to the ‘payable in full’ provision indicates that the term is used to prevent a taxpayer from prorating its liability [620]*620in the event it is subject to tax for only a portion of the year.”

The Tax Court granted Con-Way’s motion for summary judgment, and the department appealed from the ensuing judgment.

The parties renew their arguments before this court. Reduced to their core, those arguments concern the meanings of the terms “pay” and “minimum” in ORS 317.090(2), and the term “credit” in ORS 315.354(1). As noted, the department asserts that a BETC may not be used to satisfy the minimum tax payable under ORS 317.090(2), because (1) tax “credits” can operate only to reduce, not fully satisfy, a tax liability; (2) a “minimum” tax cannot be reduced; and (3) a credit may not be used to “pay” a tax, because the term “pay” requires cash payment. Those assertions pose questions of statutory interpretation, which we resolve using the principles set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009).

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Cite This Page — Counsel Stack

Bluebook (online)
302 P.3d 804, 353 Or. 616, 2013 WL 2370587, 2013 Ore. LEXIS 411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/con-way-inc-affiliates-v-department-of-revenue-or-2013.