IN THE SUPREME COURT OF MISSISSIPPI
NO. 2019-CA-00336-SCT
HWCC-TUNICA, INC./HWCC-TUNICA, LLC AND BSL, INC./BSLO, LLC
v.
MISSISSIPPI DEPARTMENT OF REVENUE AND MISSISSIPPI GAMING COMMISSION
DATE OF JUDGMENT: 01/28/2019 TRIAL JUDGE: HON. WATOSA MARSHALL SANDERS TRIAL COURT ATTORNEYS: A. THOMAS TUCKER III BRIDGETTE T. THOMAS JUSTIN P. WARREN COURT FROM WHICH APPEALED: TUNICA COUNTY CHANCERY COURT ATTORNEY FOR APPELLANTS: A. THOMAS TUCKER III ATTORNEYS FOR APPELLEES: MORTON W. SMITH JUSTIN P. WARREN BRIDGETTE T. THOMAS OFFICE OF THE ATTORNEY GENERAL BY: DEANNE SALTZMAN LOUIS FRASCOGNA NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 05/28/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
KITCHENS, PRESIDING JUSTICE, FOR THE COURT:
¶1. HWCC-Tunica, LLC, and BSLO, LLC, have casino members’ rewards programs that
allow members to earn entries into random computerized drawings to win prizes. In 2014,
after recalculating their gross revenue and deducting the costs of prizes from their rewards
programs’ drawings, HWCC and BSLO filed individual refund claims for the tax period of October 1, 2011, through August 31, 2014. The Mississippi Department of Revenue
(MDOR) denied the refund claims in 2015.
¶2. In 2017, having exhausted all of their administrative remedies, HWCC and BSLO
appealed the MDOR’s refund denial and filed individual chancery court petitions against the
MDOR and the Mississippi Gaming Commission (MGC) in the Chancery Court of Tunica
County and the Chancery Court of Hancock County. The MDOR and the MGC filed a joint
motion for summary judgment, arguing that the plain language of Mississippi Code Section
75-76-193 (Rev. 2016) does not allow a casino to deduct the cost of prizes purchased for a
rewards program’s drawings because “these promotional giveaways are not the result of ‘a
legitimate wager’ as used in [Mississippi Code Section] 75-76-193.” After a hearing on the
motion, the chancellor determined that Section 75-76-193 does not allow HWCC and BSLO
to deduct the cost of the prizes and that there were no genuine issues of material fact.
¶3. HWCC and BSLO appealed. We find that the chancellor erred by giving deference
to the MDOR’s and the MGC’s interpretations of Code Section 75-76-193. But we find that
even though the chancellor did err by giving deference, she reached the right conclusion:
that no genuine issues of material fact existed. Accordingly, we affirm the chancellor’s grant
of summary judgment.
STATEMENT OF THE FACTS
¶4. In 2013, HWCC-Tunica, Inc., converted into HWCC-Tunica, LLC. Also in 2013,
BSL, Inc., converted into BSLO, LLC. HWCC operates the Hollywood Casino in Tunica
County, Mississippi, and BSLO operates the Hollywood Casino in Hancock County,
2 Mississippi.1 Both are subsidiaries of Penn National Gaming, Inc., and both are subject to
the Mississippi Gaming Control Act. See Miss. Code Ann. § 75-76-1 (Rev. 2016).
¶5. Hollywood Casinos has a rewards program for its patrons entitled “Marque Rewards.”
The Marque Rewards program allows those casino patrons who join to earn entries into
computerized drawings that randomly select members to receive “personal property items
including cash, I-pads, televisions and vehicles.” There are three methods by which Marque
Rewards members can earn entries into these drawings: (1) the active-play method; (2) the
kiosk method; and (3) the ADT (a player’s “average daily theoretical”) method.
¶6. To earn entries by the active-play method, rewards members must accumulate points
earned on a coin-in basis by actively gambling or by wagering in a casino game with his or
her rewards card inserted into that game’s machine. For HWCC, every dollar put in equals
one point. BSLO has the same coin-in equation for casino games, except for the game of
video poker, in which every two dollars put in equals one point. The kiosk method allows
rewards members to earn “one drawing entry” by swiping his or her rewards card at one of
the designated kiosks placed throughout the casino. The final method, the ADT method, is
the one by which the majority of rewards members earn their entries into the computerized
drawings. This method uses a tier-points system, which is based on a member’s ADT. The
rewards member’s ADT is calculated by means of a complex algorithm that considers several
factors, such as the time spent, the speed of placing a wager, and the amount of the wager.
These points, earned by members’ actively gambling or wagering, then are converted into tier
1 We refer collectively to HWCC-Tunica and BSLO as “Hollywood Casinos” unless reference is made to either of them individually.
3 points. As the tier points accumulate, the rewards members earn entries into the drawings.
Unlike the other two methods, the ADT method does not contain a limit on the number of
entries per person.
¶7. In 2014, in response to an interpretation of a similar gaming statute by the
Pennsylvania Supreme Court, Hollywood Casinos hired an accounting firm to conduct a
review of its prior gaming taxes and calculate the amount of personal property that was
distributed to rewards members for slot machine play.2 The accounting firm concluded that
from October 1, 2011, to August 31, 2014, the following amounts of personal property had
been distributed to rewards members as a result of slot machine play: $763,055.76 by
HWCC and $1,424,292.83 by BSLO. Hollywood Casinos then, under Section 75-76-193,
deducted these personal property costs from its gross revenue figures for slot machine play
and sought a refund or credit for the tax periods beginning October 1, 2011, and ending
August 31, 2014. See Miss. Code Ann. § 75-76-193 (Rev. 2016). HWCC sought a refund or
credit in the amount of $91,566.69 and BSLO sought a refund or credit in the amount of
$173,790.68. Hollywood Casinos provided documents and data detailing each computerized
drawing that had been held during the applicable tax periods.3
2 See Greenwood Gaming and Entm’t v. Pa. Dep’t of Revenue, 90 A.3d 699, 714 (Pa. 2014). 3 These documents include “the criteria used to award prizes for each promotion,” the individual player numbers for each prize winner, the invoices for each prize, and a detailed breakdown of the promotional spend. The promotional spend breakdown included “a description of how entries were earned for each specific promotion, . . . a description of the prize, prize’s value [ ], the use tax paid for that prize, and a per-prize itemization of the gaming tax paid that was allocated to each prize.” The following were omitted: “all prize winners who exclusively played table games” and the value of those prizes, drawings “based
4 ¶8. On June 17, 2015, the MDOR denied Hollywood Casinos’ refund claim and cited the
Mississippi Gaming Regulation, Title 13, Part 7, Rule 3.3(k), as the reason for the denial. See
13 Miss. Admin. Code Pt. 7, R. 3.3(k) (adopted May 1, 2013), Westlaw. Hollywood Casinos
timely appealed the MDOR’s denial to the Review Board, which upheld the denial.
Hollywood Casinos timely appealed that ruling to the Board of Tax Appeals, which denied
its refund claim and affirmed the Review Board’s ruling.
¶9. In February 2017, under Mississippi Code Section 27-77-7, HWCC and BSLO
appealed the MDOR’s decision to their respective chancery courts.4 On May 26, 2017, the
Chancery Court of Tunica County entered an agreed order providing that BSLO’s action was
to be transferred to and consolidated with HWCC’s action in Tunica County.
¶10. On March 30, 2018, the MDOR and the MGC filed a joint motion for summary
judgment, arguing that “[Mississippi Code Section] 75-76-193 is clear and unambiguous[,]”
and even though no deference was given to the applicable MDOR and MGC regulations,
Hollywood Casinos’ computerized drawings are not the result of “legitimate wager” under
Section 75-76-193. On April 30, 2018, Hollywood Casinos filed its response opposing the
joint motion for summary judgment.
¶11. The chancellor held a hearing regarding the motion on December 20, 2018. On
January 28, 2019, the chancellor granted the MDOR’s and the MGC’s joint motion for
summary judgment. The chancellor determined that
exclusively on table play,” and “the value of all awards of free slot play.” 4 HWCC filed its petition in the Chancery Court of Tunica County, Mississippi, and BSLO filed its petition in the Chancery Court of Hancock County, Mississippi.
5 1. Promotional activity is separate from slot machine activity and not deductible under [Section] 75-76-193;
2. The promotional giveaways are not deductible under the [MGC’s] [r]egulations because they are not “winnings” or “the direct result of slot machine play” or “determined by coin out”;
3. The promotional giveaways are not the result of a “legitimate wager”;
4. [Hollywood Casinos] cannot verify whether all entries related to the promotional giveaways are the result of slot machine wagers, and
5. [Hollywood Casinos] in the request for a “deduction” under [Section] 75-76-193 [has] the burden of proof and [Section] 75-76-193 is construed in favor of [the MDOR and the MGC].
Additionally, the chancellor adjudicated that “this matter of law is reviewed de novo, but
with great deference to the agency’s interpretation.” She continued, describing the applicable
standard of review as follows:
[I]f an agency’s interpretation is contrary to the unambiguous terms or best reading of a statute, no deference is due. An agency’s interpretation will not be upheld if it is so plainly erroneous or so inconsistent with either the underlying regulation or statute as to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. Of Medicaid, 21 So. 3d 600, 606-07 (Miss. 2009) (internal quotations and citations omitted). Buffington v. Mississippi State Tax Com’n, 43 So. 3d 450, 453-54 (Miss. 2010).
The chancellor went on to interpret Section 27-77-7(5) to give courts authority to defer to the
MDOR’s and the MGC’s regulations and other publications that interpret statutes.
¶12. Hollywood Casinos raises four issues on appeal. First, Hollywood Casinos argues that
the chancellor erred by applying the incorrect standard of review under the applicable version
of Section 27-77-7. Second, it asserts that the portion of Section 27-77-7(5) that requires
courts to give deference to an agency’s interpretations of statutes is unconstitutional because
6 it violates the separation of powers doctrine. Third, it argues that the chancellor erred by
giving deference to the MDOR’s and the MGC’s interpretations of Section 75-76-193, which
it claims are contrary to the unambiguous terms or best reading of the statute. Finally,
Hollywood Casinos contends that the chancellor erred by finding that no genuine issues of
material fact existed.
¶13. The MDOR and the MGC contend that the chancellor did not err because, even
though she did mention giving deference to the MDOR’s and the MGC’s interpretations, the
chancellor properly found that the Hollywood Casinos failed to show genuine issues of
material fact as to whether Section 75-76-193 was applicable in this case.
STANDARD OF REVIEW
¶14. This Court has held that “Mississippi Code Section 27-77-7(5) provides the process
and standard of review for chancery court review of MDOR and [Mississippi Board of Tax
Appeals] decisions, and issues related to such are questions of law.” Miss. Dep’t of Revenue
v. Hotel and Rest. Supply, 192 So. 3d 942, 945 (Miss. 2016) (citing Equifax, Inc. v. Miss.
Dep’t of Revenue, 125 So. 3d 36, 41 (Miss. 2013)). This Court reviews “questions of law de
novo.” Campbell Props., Inc. v. Cook, 258 So. 3d 273, 275 (Miss. 2018) (citing McNeil v.
Hester, 753 So. 2d 1057, 1063 (Miss. 2000)).
¶15. In King v. Mississippi Military Department, this Court abandoned its “old standard
of review giving deference to agency interpretations of statutes” and established that we now
will conduct a de novo review without giving such deference. King v. Miss. Military Dep’t,
245 So. 3d 404, 407-08 (Miss. 2018).
7 ¶16. “Matters of statutory interpretation also are reviewed by this Court using a de novo
standard.” Chandler v. McKee, 202 So. 3d 1269, 1271 (Miss. 2016) (citing Wallace v. Town
of Raleigh, 815 So. 2d 1203, 1206 (Miss. 2002)). “Where a statute is unambiguous, the Court
must apply the statute according to its plain meaning, refraining from principles of statutory
construction.” OXY USA, Inc. v. Miss. State Tax Comm’n, 757 So. 2d 271, 274 (Miss.
2000) (citing City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992)). This Court
has held that “[s]tatutory interpretation is appropriate when a statute is ambiguous or silent
on a specific issue.” Lewis v. Hinds Cty. Circuit Court, 158 So. 3d 1117, 1120 (Miss. 2015)
(citing Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So. 3d 600,
607 (Miss. 2009), abrogated by King, 245 So. 3d at 404).
¶17. As for constitutional issues, this Court applies “a de novo standard of review when
deciding the constitutionality of a state statute.” Kansler v. Miss. Dep’t of Revenue, 263 So.
3d 641, 645 (Miss. 2018) (citing Commonwealth Brands, Inc. v. Morgan, 110 So. 3d 752,
758 (Miss. 2013)). Specifically, this Court has held,
“When addressing a statute’s constitutionality, we apply a de novo standard of review, bearing in mind (1) the strong presumption of constitutionality; (2) the challenging party’s burden to prove the statute is unconstitutional beyond a reasonable doubt; and (3) all doubts are resolved in favor of a statute’s validity.” Johnson v. Sysco Food Servs., 86 So. 3d 242, 243-44 (Miss. 2012) (citations omitted). “The statutes must be shown to be in direct conflict with ‘the clear language of the constitution.’” 5K Farms, Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 227 (Miss. 2012) (quoting PHE, Inc. v. State, 877 So. 2d 1244, 1247 (Miss. 2004)). “‘[T]he courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.’” Id. (quoting Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 216 Miss. 358, 62 So. 2d 383, 385 (1953)). “‘When a party invokes our power of judicial review, it behooves us to recall
8 that the challenged act has been passed by legislators and approved by a governor sworn to uphold the selfsame constitution as are we.’” Id. (quoting State v. Roderick, 704 So. 2d 49, 52 (Miss. 1997)).
Clark v. Bryant, 253 So. 3d 297, 300 (Miss. 2018).
¶18. Additionally, “a de novo standard is applied when the Court reviews a chancery
court’s grant or denial of summary judgment.” Miss. Dep’t of Revenue v. Isle of Capri
Casinos, Inc., 131 So. 3d 1192, 1194 (Miss. 2014) (citing Williams v. Duckett (In re
Guardianship of Duckett), 991 So. 2d 1165, 1173 (Miss. 2008)). “Summary judgment is
appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions,
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.’” Miss. State and Sch.
Emps.’ Life and Health Plan v. KCC, Inc., 108 So. 3d 932, 935 (Miss. 2013) (citing Miss.
R. Civ. P. 56(c)).
DISCUSSION
I. Did the chancellor err by applying the incorrect standard of review under the applicable version of Section 27-77-7(5) by giving deference to a prior MDOR decision?
¶19. Hollywood Casinos asserts that the chancery court applied the incorrect standard of
review by giving deference to a prior MDOR decision, which no longer is allowed under the
current version of Section 27-77-7(5). The older version of Section 27-77-7(5) provided in
pertinent part that
At trial of any action brought under this section, the chancery court shall give deference to the decision and interpretation of law and regulations by the Department of Revenue as it does with the decisions and interpretation of any
9 administrative agency, but it shall try the case de novo and conduct a full evidentiary judicial hearing on the issues raised.
Miss. Code Ann. § 27-77-7(5) (Rev. 2010). Section 27-77-7(5) was amended in 2014 and
now includes the following language:
At trial of any action brought under this section, the chancery court shall give no deference to the decision of the Board of Tax Appeals, the Board of Review or the Department of Revenue, but shall give deference to the department’s interpretation and application of the statutes as reflected in duly enacted regulations and other officially adopted publications. The chancery court shall try the case de novo and conduct a full evidentiary judicial hearing on all factual and legal issues raised by the taxpayer which address the substantive or procedural propriety of the actions of the Department of Revenue being appealed. The chancery court is expressly prohibited from trying any action filed pursuant to this section using the more limited standard of review specified for appeals in Section 27-77-13 of this chapter.
Miss. Code Ann. § 27-77-7(5) (Rev. 2017).
¶20. The 2014 amendment to Section 27-77-7(5) no longer allows a trial court to defer to
an agency’s prior decisions, but it continues to demand that courts “shall give deference” to
an agency’s interpretations of statutes. Miss. Code Ann. § 27-77-7(5) (Rev. 2017).
¶21. Hollywood Casinos provides no evidence in its brief that the chancellor gave
deference to prior MDOR decisions. The chancellor cited the current version of Section 27-
77-7(5) in her order and recognized that the statute gives courts authority to defer to an
agency’s regulations that interpret statutes and directs them not to give deference to an
agency’s prior decision. Thus, this issue is without merit.
¶22. While we find that the chancellor applied the correct version of Section 27-77-7(5),
this does not impact our analysis below regarding the constitutionality of Section 27-77-7(5).
10 II. Is Section 27-77-7(5) unconstitutional?
A. Can Hollywood Casinos challenge the constitutionality of Mississippi Code Section 27-77-7(5)?
¶23. Hollywood Casinos argues that “[t]he portion of Section 27-77-7 of the Mississippi
Code which requires the [c]ourt to give deference to the MDOR’s interpretation of statutes
is unconstitutional as it violates the constitutional separation of powers.” See Miss. Const.
art. 1, §§ 1, 2.
¶24. The MDOR and the MGC argue that Hollywood Casinos is barred from asserting its
constitutional argument because this challenge is being raised for the first time on appeal. It
is apparent from the record that Hollywood Casinos did not specifically plead or raise this
constitutional challenge in the trial court. The MDOR and the MGC rely on Barnes v.
Singing River Hospital Systems, which states,
As Singing River points out, the constitutionality issue is barred, because it was not raised in the trial court and because the Attorney General’s Office was not properly notified. “We accept without hesitation the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court. We depart from this premise only in unusual circumstances.” Educational Placement Services v. Wilson, 487 So. 2d 1316, 1320 (Miss. 1986). “The law has been well settled that the constitutionality of a statute will not be considered unless the point is specifically pleaded.” Smith v. Fluor Corp., 514 So. 2d 1227, 1232 (Miss. 1987).
Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 202 (Miss. 1999); see Stockstill v.
State, 854 So. 2d 1017, 1023 (Miss. 2003) (“[T]his Court has also consistently held that
errors raised for the first time on appeal will not be considered, especially where
11 constitutional questions are concerned.” (internal quotation mark omitted) (quoting Marcum
v. Hancock Cty. Sch. Dist., 741 So. 2d 234, 238 (Miss. 1999))).
¶25. While it is true that this Court has ruled that it will not consider a constitutional
challenge that was not presented to the trial court first, it also is true that this Court has said
that it will depart from “this premise only in unusual circumstances.” Barnes, 733 So. 2d at
202 (internal quotation mark omitted) (quoting Educ. Placement Servs. v. Wilson, 487 So.
2d 1316, 1320 (Miss. 1986)); see Pascagoula School Dist. v. Tucker, 91 So. 3d 598, 603
(Miss. 2012); Cockrell v. Pearl River Valley Water Supply Dist., 865 So. 2d 357, 360 (Miss.
2004). Hollywood Casinos claims that this case falls into the unusual circumstances category.
¶26. This Court in Pascagoula School District v. Tucker found that even though the
Pascagoula School District did not raise its constitutional argument “until their motion to stay
before the chancery court[,]” this case “presented such an unusual circumstance” that it
“compell[ed] [this Court] to address the merits of the plaintiffs’ [constitutional] argument.”
Pascagoula Sch. Dist. v. Tucker, 91 So. 3d 598, 603 (Miss. 2012) (alterations in original).
This Court found that Pascagoula presented an unusual circumstance because the defendants
were aware of the constitutional argument, they addressed the issue in their briefs, they were
not prejudiced by “the plaintiffs’ failure to raise this issue in their initial pleadings[,]” and
the issue was a matter of grave importance. Pascagoula, 91 So. 3d at 604-05. As such, the
Pascagoula Court determined that “[i]t would serve no purpose to delay” this Court’s answer
when that delay would allow a harm to continue. Pascagoula, 91 So. 3d at 604.
12 ¶27. We find that the case at hand also presents an unusual circumstance for reasons
similar to those found in Pascagoula.
¶28. As with the defendants in Pascagoula, neither the MDOR, the MGC, nor the State
itself was prejudiced here because each was aware of this argument, and they have addressed
the issue in their appellate brief. Accordingly, Hollywood Casinos’s failure to challenge the
constitutionality of Section 27-77-7(5) in the trial court did not prejudice the defendants here.
See Pascagoula, 91 So. 3d at 604-05.
¶29. Also, this case involves a matter of grave importance for Mississippi taxpayers and
for this Court, and there would be no purpose in our delaying its resolution. See Pascagoula,
91 So. 3d at 604. This matter is of grave importance for taxpayers because the deference
portion of Section 27-77-7(5) is in conflict with this Court’s holding in King, which
established a new standard of review that applies to this case. See King, 245 So. 3d at 407-
08. It is a matter of grave importance for this Court because this statute infringes on the
judicial branch’s exclusive power to interpret statutes and its ability to “fulfill [its] duty to
exercise [its] independent judgment about what the law is.” King, 245 So. 3d at 408 (internal
quotation mark omitted) (quoting Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th
Cir. 2016) (Gorsuch, J., concurring)).
¶30. Likewise, delaying this issue and awaiting another case that followed more
scrupulously the prescribed procedure serves no useful purpose. This Court has ruled in King
that the type of deference dictated by Section 27-77-7(5) violates the constitutional doctrine
of separation of powers, and delaying a clear adjudication of such could cause more harm
13 while this Court waits for a procedurally pristine case. See King, 245 So. 3d at 408. To delay
such a decision would leave the trial courts, the Court of Appeals, and the legal community
at large in a state of uncertainty about whether the judicial branch is to give deference to
agency interpretations of statutes.
¶31. We find that this case presents an unusual circumstance that requires this Court to
decide the constitutionality of Section 27-77-7(5).
B. Does our holding in King apply to this case?
¶32. Hollywood Casinos challenges the constitutionality of the deferential treatment
mandated by Section 27-77-7(5) and cites our analysis in King for support. The MDOR and
the MGC assert that King is distinguishable from the current case because King “addressed
the common law deference in regards to how an agency interpreted a statute”; here, the
agency interpretations of the statutes are found within “duly-enacted regulations,” which is
“an area that the King Court specifically declined to address.”
¶33. In King, this Court found that “[d]eferential review of executive-branch statutory
interpretations gives rise to another problem under Mississippi’s strict constitutional
separation of powers.” King, 245 So. 3d at 407. Also, this Court stated,
Executive-branch agencies must follow statutes and, absent a declaration from the judicial branch regarding an interpretation of a statute, must decide what statutes mean. However, when the interpretation of a statute comes before the courts, and when deference is given to an agency interpretation, we share the exercise of the power of statutory interpretation with another branch in violation of Article 1, Section 2.
King, 245 So. 3d at 408. Thus, we have ruled that agency interpretations of statutes no longer
will receive deferential treatment because doing so creates a conflict with the separation of
14 powers doctrine and that this Court will “step fully into the role the Constitution of 1890
provides for the courts and the courts alone, to interpret statutes.” Id.
¶34. We find no difference between this case and King. Although King did not elaborate
on whether it applied to agency interpretations of statutes reflected in duly enacted
regulations, we find that King applies here because its ultimate finding is applicable to any
case in which an agency interprets a statute. See King, 245 So. 3d at 407-08. Interpreting
statutes is reserved exclusively for courts.
¶35. The MDOR and the MGC argue that the constitutional separation of powers doctrine
is not offended here because Section 27-77-7(5) states that appeals are to be tried de novo
and a full evidentiary hearing is to be conducted, thus preserving the power of the courts to
interpret statutes as they see fit. But this argument is invalidated by our analysis in King. See
King, 245 So. 3d at 407. The Court in King found that de novo review does not save the
judiciary’s power to interpret statutes free of deferential treatment because giving a “de novo
but deferential review” is a contradiction that “creates a confusing and vague standard.” Id.
¶36. The MDOR and the MGC claim that the deferential language in Section 27-77-7(5)
asks courts merely to give a small degree of deference to agency interpretations. The United
States Supreme Court stated in Skidmore v. Swift & Co. that the interpretations and opinions
of administrative agencies are not controlling on courts and that courts should look to those
interpretations for guidance only. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161,
89 L. Ed. 124 (1944). While this Court is not bound by Skidmore, neither King nor our
15 decision today prevents or prohibits Mississippi courts from looking to regulations for
information and guidance. See King, 245 So. 3d at 407-08.
¶37. We find, beyond a reasonable doubt and consistent with our analysis and holding in
King, that the deferential standard prescribed in Code Section 27-77-7(5) is unconstitutional
because it violates the separation of powers doctrine of our state constitution. See Miss.
Const. art 1, §§ 1, 2.
III. Did the chancellor defer to the MDOR’s and the MGC’s regulations when interpreting Section 75-76-193?
¶38. Since the deferential standard within Section 27-77-7(5) does not pass constitutional
muster, we must determine whether the chancellor erred by giving deferential treatment to
the MDOR’s or the MGC’s regulations that interpret Section 75-76-193.
A. Chancellor’s Determination
¶39. While the chancellor did conduct her own “analysis of the statutory language and the
applicable regulations, as well as persuasive case law,” she also applied deferential treatment
to the MDOR’s and the MGC’s interpretations to her analysis. Throughout the chancellor’s
analysis, she referenced terms that were found only in the MDOR’s or the MGC’s regulations
and not in the language of the statute. Code Section 75-76-193(2) used the broad term
“legitimate wager,” whereas the MDOR’s and the MGC’s regulations replaced “legitimate
wager” with more specific terms, such as “coin out,” “specific wager,” and “direct result”
of slot machine play. Miss. Code Ann. § 75-76-193 (Rev. 2016); see 35 Miss. Admin. Code
Pt. V, R. 4.01(100)(11) (adopted Nov. 17, 2011), Westlaw; 13 Miss. Admin. Code Pt. 7, R.
16 3.3(b), (k) (adopted May 1, 2013), Westlaw. While we agree that each of these could be a
legitimate wager, the chancellor’s short list is not exhaustive.
¶40. The chancellor should have considered all the ways the property given away could
have been products of legitimate wagers rather than deferring to the examples listed in the
MDOR’s and the MGC’s regulations. Not only did the chancellor limit her consideration to
the short list of terms found within the agency interpretations, she also expressed a belief that
she had the right to defer to the MDOR’s and the MGC’s regulatory interpretations, rather
than taking into account the possible applicability of Greenwood. Thus, we find that the
chancellor erred by giving deference to the regulatory interpretations of Section 75-76-193
rather than conducting a de novo review.5
¶41. In light of the chancellor’s error in deferring to the MDOR’s and the MGC’s
interpretations of Section 75-76-193, we proceed to conduct our de novo interpretation of the
statute to ascertain whether Section 75-76-193 applies to Hollywood Casinos’ rewards
programs’ random drawings.
B. Plain Language of Section 75-76-193
¶42. Mississippi Code Section 75-76-193 deals with the calculation of gross revenue and
allows tax deductions:
(1) In calculating gross revenue, any prizes, premiums, drawings, benefits or tickets which are redeemable for money or merchandise or other promotional
5 This Court does not suggest that agencies cannot promulgate regulations and interpret them. But when an agency creates a regulation that interprets a statute, courts must conduct a de novo review when the statute is under judicial consideration because the judiciary is the only governmental branch with the constitutional power to interpret statutes. See Miss. Const. art 1, § 1.
17 allowance, except money or tokens paid at face value directly to a patron as the result of a specific wager and the amount the cash paid to purchase an annuity to fund winnings paid to that patron over several years by an independent financial institution, must not be deducted as losses from winnings at any game except a slot machine.
(2) In calculating gross revenue from slot machines, the actual cost to the licensee of any personal property distributed to a patron as the result of a legitimate wager may be deducted as a loss, but not travel expenses, food, refreshments, lodging or services.
Miss. Code Ann. § 75-76-193 (Rev. 2016).
¶43. Hollywood Casinos asserts that the MDOR’s and the MGC’s regulations are contrary
to the “unambiguous terms or best reading of the statute,” which, it contends, clearly and
unambiguously allows it to deduct from its gross revenue the cost of the prizes won by its
Marque Rewards members for slot machine play. See Buffington v. Miss. State Tax
Comm’n, 43 So. 3d 450, 454 (Miss. 2010) (citing Miss. Methodist Hosp. and Rehab. Ctr.,
21 So. 3d at 606-07). Hollywood Casinos claims that the plain language of Section 75-76-
193(2) focuses on whether a prize was won as a result of a legitimate slot machine wager,
rather than as a result of a specific slot machine or coin-out transaction, as required by the
MDOR’s and the MGC’s regulations. See 35 Miss. Admin. Code Pt. V, R. 4.01(100)(11);
13 Miss. Admin. Code Pt. 7, R. 3.3(b), (k).
¶44. Hollywood Casinos relies on a 2014 Pennsylvania case in which the Pennsylvania
court utilized its rules of statutory interpretation and found that promotional awards were
deductible as a result of playing any slot machine, rather than as a result of play that was
“tied to the play of a specific slot machine at a specific time.” Greenwood, 90 A.3d at 714.
The rules of statutory interpretation in Pennsylvania provide that “statutes that define what
18 property is and is not subject to taxation[, i.e., tax exclusions,] are interpreted strictly in the
favor of the taxpayer and against the Commonwealth.” Id. (citing 1 Pa. Stat. and Cons. Stat.
Ann. § 1928(b)(3) (West, Westlaw through 2020 Reg. Sess.)). But in Mississippi, the general
rule regarding tax exemptions is:
Since taxation is the rule and exemption is the exception, and since exemptions from taxation are not favored, [the] general rule is that a grant of exemption from taxation is never presumed; on the contrary, in all cases having doubt as to legislative intention . . . [the] presumption is in favor of the taxing power, and [the] burden is on [the] claimant to prove or establish clearly his right to exemption, bringing himself clearly within terms of such conditions [as] that statute may impose.
Fishbelt Feeds, Inc. v. Miss. Dep’t of Revenue, 158 So. 3d 984, 991 (Miss. 2014)
(alterations in original) (quoting Miss. Dep’t of Revenue v. Pikco Fin., Inc., 97 So. 3d 1203,
1210 (Miss. 2012)). Further, “[t]he taxpayer has the burden of proving that the facts bring
the case squarely within the deduction provisions of the statute.” Purcell Co., Inc. v. Miss.
State Tax Comm’n, 569 So. 2d 297, 301 (Miss. 1990) (citing State v. L. & A. Contracting
Co., 241 Miss. 783, 133 So. 2d 546, 549 (1961)). Therefore, there is no favorable
presumption for the taxpayer in this case, as there was under Pennsylvania law in
Greenwood.
¶45. Also, the Pennsylvania statute requires the property (the prize) to be the “result of
playing a slot machine,” Greenwood, 90 A.3d at 702 (quoting 4 Pa. Stat. and Cons. Stat.
Ann. § 1103 (West, Westlaw through 2020 Reg. Sess.)), while Mississippi’s statute requires
the property to be the “result of a legitimate wager.” Miss. Code Ann. § 75-76-193(2).
19 ¶46. Because Pennsylvania and Mississippi have different rules of statutory interpretation
regarding tax presumptions and the statute in Greenwood contained different language than
that in our statute, we find that Greenwood is not analogous to this case.
¶47. The MDOR and the MGC contend that because Hollywood Casinos’ Marque Rewards
program is not a “gambling game,” but instead is a “promotional activity” under the
definitions under Section 75-76-5(nn), Section 75-76-193 does not apply. Code Section 75-
76-5(nn) defines promotional activity as
[A]n activity or event conducted or held for the purpose of promoting or marketing the individual licensed gaming establishment that is engaging in the promotional activity. The term includes, but is not limited to, a game of any kind other than as defined in paragraph (k) of this section, a tournament, a contest, a drawing, or a promotion of any kind.
Miss. Code Ann. § 75-76-5(nn) (Rev. 2016). The same section defines a gambling game as
[A]ny banking or percentage game played with cards, with dice or with any mechanical, electromechanical or electronic device or machine for money, property, checks, credit or any representative of value, including, without limiting, the generality of the foregoing, . . . , slot machine, . . . However, “game” or “gambling game” shall not include bingo games or raffles which are held pursuant to the provisions of Section 97-33-51, or the illegal gambling activities described in Section 97-33-8.
Miss. Code Ann. § 75-76-5(k) (Rev. 2016). A slot machine clearly is described statutorily
as a gambling game, but a drawing is described as a promotional activity. See Miss. Code
Ann. § 75-76-5(nn); Miss. Code Ann. § 75-76-5(k). In Ameristar Casino Vicksburg, Inc.
v. Duckworth, the Court found that a casino’s reward-members-only promotional drawing,
by which members gained entry based on their play and were chosen randomly, was not a
gambling game as contemplated by Section 75-76-5(k). Ameristar Casino Vicksburg, Inc.
20 v. Duckworth, 990 So. 2d 758, 758-60 (Miss. 2008). The manner in which rewards members
here and the rewards members in Ameristar gained entry into their drawings is similar to the
extent that members earned entries based on their casino play and by displaying their
membership cards. See id. at 760. Thus, the property given away by Hollywood Casinos
through its rewards program was a promotional activity under Section 75-76-5(nn), not slot
machine play under Section 75-76-5(k); therefore, Hollywood Casinos cannot deduct the cost
of the prizes as a loss under Section 75-76-193(2).
¶48. Hollywood Casinos claims it has presented data that shows that these prizes resulted
from entries earned through slot machine play. But the data provided by Hollywood Casinos
fails to demonstrate that the prizes were the result of slot machine play. The data shows that
the drawings provided multiple ways for rewards members to earn entry into the drawings:
(1) table play or slot machine play, or (2) slot machine play or kiosk. This Court finds no
drawings based exclusively on slot machine play. Hollywood Casinos failed to provide
evidence that, in a drawing that allowed entries by both slot and table play, it could determine
the winning member had won based on an entry earned through slot machine play and not
based on table play.
¶49. Additionally, the MDOR and the MGC contend Hollywood Casinos’ rewards
programs’ giveaways are not the “result of a legitimate wager” under Section 75-76-193(2).
This Court finds that because the rewards program fails to satisfy Subsection 1's requirement
of the prizes’ having been derived from slot machine play, which is dispositive, the issue of
whether the giveaways were the result of legitimate wagers does not warrant discussion.
21 ¶50. It is clear from the plain language of Section 75-76-5(nn) and (k) that Hollywood
Casinos Marque Rewards program’s random computerized drawings fall within the
definition of a promotional activity, not that of slot machine play, a gambling game. This
Court has held that a random drawing is not a gambling game; therefore, a random
computerized drawing is not and cannot be a slot machine, which is a gambling game. See
Ameristar, 990 So. 2d at 760. Also, the plain language of Section 75-76-193(1) provides
clearly that the prizes are required to be from slot machine play. Miss. Code Ann. § 75-76-
193(1). We find that Hollywood Casinos failed to demonstrate that its rewards programs’
drawings resulted from slot machine play only and that the drawing was not a promotional
activity under Section 75-76-5(nn).
IV. Did the chancellor err by not finding there were genuine issues of material fact?
¶51. Hollywood Casinos asserts that the chancellor should not have granted summary
judgment because there were genuine issues of material fact: “the nexus of the relationship
between the personal property delivered to Hollywood Casino’s Marque Rewards members
and slot machine play.” This Court finds that even though the chancellor erred by giving
deference to the MDOR’s and the MGC’s interpretations of Section 75-76-193, based on our
above analysis, the chancellor nevertheless came to the correct conclusion that there were no
genuine issues of material fact. This Court has stated that “we will not reverse a lower court’s
decision where that court reaches the right conclusion although for the wrong reason.” Briggs
v. Benjamin, 467 So. 2d 932, 934 (Miss. 1985) (citing Huffman v. Griffin, 337 So. 2d 715
(Miss. 1976)). Hollywood Casinos failed to demonstrate that its random computerized
22 drawings fall under Section 75-76-193. Hollywood Casinos failed also to show that it can
determine that the drawing winners had won as the result of slot machine play. Hollywood
Casinos claims it has data to that affect, but that data is insufficient to show that Hollywood
could determine whether a winning member had won through slot machine play or by table
play. Therefore, we find that no genuine issues of material fact existed and that the
chancellor correctly granted summary judgment to the MDOR and the MGC.
CONCLUSION
¶52. We find beyond a reasonable doubt, based on our decision in King, that the deferential
review mandated by Mississippi Code Section 27-77-7(5) violates the separation of powers
doctrine and is unconstitutional. While the chancellor gave deferential treatment to the
MDOR’s and the MGC’s regulations interpreting Section 75-76-193, we find that ultimately,
she came to the correct conclusion that there were no genuine issues of material fact. Section
75-76-193 states plainly that the prizes must have been won from slot machine play to qualify
as legitimate wagers. Hollywood Casinos failed to prove that its reward program conformed
to that requirement. Accordingly, this Court affirms the chancellor’s grant of summary
judgment to the MDOR and the MGC.
¶53. AFFIRMED.
RANDOLPH, C.J., KING, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.