In Re Appeal of Sas Institute Inc.

684 S.E.2d 444, 200 N.C. App. 238, 2009 N.C. App. LEXIS 1624

• Court: Court of Appeals of North Carolina
• Decided: October 6, 2009
• Docket: COA08-1106
• Status: Published

Opinions

ELMORE, Judge.

This case concerns whether Wake County can levy an ad valorem tax for the year 2003 on a plane owned by the SAS Institute (SAS). The plane was in Delaware on 1 January 2003 and stayed in Delaware through early September 2003 while a custom-made interior was being designed and installed; the plane was then returned to Wake County, where it was used by SAS through the end of 2003. The Wake County Assessor (Assessor), the Wake County Tax Committee, and the Property Tax Commission (Commission) all held that SAS should have listed the plane on its 2003 tax forms and, therefore, SAS would be required to pay taxes on the plane for 2003. SAS then appealed to this Court. We affirm the Commission’s decision.

FACTS

The facts of this case are undisputed. SAS is a North Carolina corporation with its principal offices in Wake County. On 25 November 2002, SAS purchased an unfinished Boeing 737 jet airplane in South Carolina. The plane was immediately flown to Louisiana for painting, and stayed in Louisiana from 25 November 2002 until 20 December 2002. On 21 December 2002, the plane was flown to Delaware for a custom-made interior to be constructed and installed by DeCrane Aircraft Systems Integration Group (DeCrane). The plane stayed in Delaware from 21 December 2002 through 23 August 2003; it was not flown during this period. The plane was given an Airworthiness Certificate by the Federal Aviation Administration on 3 September 2003, at which point it was flown back to Wake County and turned over to SAS.

SAS listed the plane on its tax forms for 2004 and subsequent years, but it did not list the plane for its 2003 tax forms. In 2006, the Wake County Revenue Department discovered that the plane had not been listed on SAS’s 2003 tax forms and notified SAS of this discovery on 8 September 2006. SAS appealed to the Assessor, who decided that the plane should have been listed by SAS for tax year 2003. On 8 January 2007, the Wake County Tax Committee affirmed the Assessor’s decision. SAS then appealed to the Commission, which issued an order on 10 March 2008 affirming the Wake County Tax Committee’s decision that the aircraft was subject to ad valorem taxation by Wake County for 2003. SAS then appealed to this Court. For the reasons stated below, we affirm the Commission’s decision.

ARGUMENT

The outcome of this case depends on whether the plane’s tax situs for 2003 was North Carolina or Delaware. SAS argues that the plane’s 2003 tax situs was Delaware, and, therefore, North Carolina cannot levy a tax on it; Wake County argues that the plane’s 2003 tax situs was North Carolina, and, as such, Wake County can indeed levy a tax on it. We overrule SAS’s arguments and hold that the Commission properly found the plane’s 2003 tax situs to be North Carolina.

. When decisions of the Commission are appealed to this Court, “[questions of law receive de novo review, while issues such as sufficiency of the evidence to support the Commission’s decision are reviewed under the whole-record test.” In re Appeal of the Greens of Pine Glen, Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). Both parties argue, without citation, that the plane’s tax situs is a question of law, although previous North Carolina cases have tended to treat tax situs as a question of fact. See In re Appeal of Hanes Dye & Finishing Co., 285 N.C. 598, 611, 207 S.E.2d 729, 737 (1974) (“The ownership and uses for which the property is designed, and the circumstances of its being in the state, are so various that the question is often more a question of fact than of law.”) (quoting 71 Am. Jur. 2d, State and Local Taxation, § 661 (1973)); In re Bassett Furniture Industries, Inc., 79 N.C. App. 258, 263, 339 S.E.2d 16, 19 (1986). However, the precise standard of review in this case is a moot question, as we reach the same conclusion under both a de novo and a whole record approach.

General Statutes Chapter 105 sets out the laws governing taxation of property in North Carolina. Spiers v. Davenport, 263 N.C. 56, , 138 S.E.2d 762, 763 (1964). N.C. Gen. Stat. § 105-274(a) provides that “[a]ll property, real and personal, within the jurisdiction of the State shall be subject to taxation unless it is [excluded or exempted by North Carolina statute or the North Carolina Constitution].” N.C. Gen. Stat. § 105-274(a) (2007). Ambiguities in statutes imposing taxes are construed in favor of the taxpayer, but statutes exempting property from taxation are construed against the taxpayer. In re Appeal of Martin, 286 N.C. 66, 77, 209 S.E.2d 766, 774 (1974). “Taxation is the rule; exemption the exception.” Odd Fellows v. Swain, 217 N.C. 632, 637, 9 S.E. 2d 365, 368 (1940). SAS argues that its plane qualifies for one of the exemptions listed in section 274. As such, SAS had the burden of establishing that its plane was not subject to ad valorem taxation by Wake County for 2003.

“The situs of personal property for purposes of taxation is determined by the legislature and the legislature may provide different rules for different kinds of property and may change the rules from time to time.” Bassett, 79 N.C. App. at 262, 339 S.E.2d at 18. The legislature has currently determined that, “[e]xcept as otherwise provided in this Chapter, the value, ownership, and place of taxation of personal property, both tangible and intangible, shall be determined annually as of January 1.” N.C. Gen. Stat. § 105-285(b) (2007) (emphases added). As for determining the place of taxation, N.C. Gen. Stat. § 105-304(c) provides that, “[e]xcept as otherwise provided in subsections (d) through (h) of this section, tangible personal property is taxable at the residence of the owner.” N.C. Gen. Stat. § 304(c) (2007). SAS claims that it qualifies for exception (f) of section 304, titled “Property Situated or Commonly Used at Premises Other Than Owner’s Residence,” which states:

(3) Tangible personal property situated at or commonly used in connection with a premise owned, hired, occupied, or used by a person who is in possession of the personal property under a business agreement with the property’s owner is taxable at the place at which the possessor’s premise is situated. For purposes of this subdivision, the term “business agreement” means a commercial lease, a bailment for hire, a consignment, or a similar business arrangement.

(4) In applying the provisions of subdivisions (1), (2), and (3) of this subsection, the temporary absence of tangible personal property from the place at which it is taxable under one of those subdivisions on the day as of which property is to be listed does not affect the application of the rules established in those subdivisions. The presence of tangible personal property at a location specified in subdivision (1), (2), or (3) of this subsection on the day as of which property is to be listed is prima facie evidence that it is situated at or commonly used in connection with that location.

N.C. Gen. Stat. §§ 105-30400(3), (4) (2007) (emphases added). SAS argues that, because the plane was in Delaware on 1 January 2003 under the provisions of a business arrangement with DeCrane, the plane’s “place of taxation” should be considered DeCrane’s location in Delaware and not SAS’s principal place of business in Wake County. Assuming arguendo that SAS’s business arrangement with DeCrane is “similar” to a “commercial lease, a bailment for hire, [or] a consignment,” N.C. Gen. Stat. § 105-304(f)(3) (2007), the mere fact that the plane was not in Wake County on 1 January 2003 is not dis-positive in determining that the plane’s tax situs was Delaware; rather, it establishes only a prima facie case that the plane “is situated at or commonly used in connection with” the Delaware location. N.C. Gen. Stat. § 304(f)(4) (2007). As such, in order to qualify for the exemption, SAS was still required to establish by the greater weight of the evidence that the plane was “situated at” DeCrane’s facilities in Delaware for tax year 2003; the term “situated” has been defined by N.C. Gen. Stat. § 304(b)(1) as “[m]ore or less permanently located.” N.C. Gen. Stat. § 304(b)(1) (2007). Therefore, the question comes down to whether the plane was more or less permanently located in Delaware for tax year 2003.

SAS argues that the plane was in fact “more or less permanently located” in Delaware for tax year 2003 because the plane was at DeCrane’s facilities continuously from late 2002 through early September 2003. As such, SAS argues that it meets the requirements of subsection (f) of section 304, establishing that the plane’s tax situs for 2003 would be Delaware.

The general use and significance of the term “more or less permanently located” has been analyzed by our Supreme Court, quoting 71 Am. Jur. 2d, State and Local Taxation §§ 660 and 661, as follows:

§ 660 provides: “Before tangible personal property may be taxed in a state other than the domicil of the owner, it must have acquired a more or less permanent location in that state, and not merely a transient or temporary one. Generally, chattels merely temporarily or transiently within the limits of a state are not subject to its property taxes. Tangible personal property passing through or in the state for temporary purposes only, if it belongs to a nonresident, is not subject to taxation under a statute providing that all real and personal property in the state shall be assessed and taxed. ... A criterion is whether the property is there for an indefinite time or some considerable definite time, and whether it is used or exists there to be used in much the same manner as other property is used in that community. ...”

§ 661 provides: “Permanency in the sense of permanency of real estate is not essential to the establishment of a taxable situs for tangible personal property. It means a more or less permanent location for the time being. The ownership and uses for which the property is designed, and the circumstances of its being in the state, are so various that the question is often more a question of fact than of law. In the final analysis, the test perhaps is whether or not property is within the state solely for use and profit there. ...”

The courts are all agreed that before tangible personal property may be taxed in a state other than its owner’s domicil, it must acquire there a location more or less permanent. It is difficult to define the idea of permanency that this rule connotes. It is clear that “permanency,” as used in this connection, does not convey the idea of the characteristics of the permanency of real estate. It merely, involves the concept of being associated with the general mass of property in the state, as contrasted with a transient status.

In re Appeal of Hanes Dye, 285 N.C. at 611, 207 S.E.2d at 737 (emphases added).

Therefore, the default tax situs for SAS’s plane was Wake County, which is SAS’s principal place of business. In order to show that the plane had acquired a tax situs other than its principal place of business, SAS had to show that the plane was going to be used in Delaware “in much the same manner as other property is used in” Delaware, or that the plane was in Delaware “solely for use and profit there.” However, those definitions cut against SAS because the plane was only in Delaware for the purposes of installing an interior and flight certification. Similarly, North Carolina excludes from taxation “[t]angible personal property shipped into this State for the purpose of repair, alteration, maintenance, or servicing and reshipment to the owner outside this State.” N.C. Gen. Stat. § 105-275(25) (2007). SAS presented no evidence that the plane was intended to remain in Delaware after the interior was completed. As such, the plane is properly classified as having been located in Delaware only for temporary maintenance or alteration — not for permanent use. Therefore, the default tax situs of the plane was SAS’s principal place of business, Wake County.

SAS cites Bassett as precedent that SAS’s plane should be considered more or less permanently located in Delaware for tax year 2003. In Bassett, a plane was hangared and used in North Carolina for close to a year while a longer runway was built in Virginia near Bassett’s headquarters. Bassett, 79 N.C. App. at 264, 339 S.E.2d at 20. This Court held that the plane was more or less permanently located in North Carolina, rather than Virginia; however, the plane was in North Carolina for regular use as an airplane, not for maintenance or alterations or repairs like the plane in the current case. Id. As such, the Bassett plane was used in this state in much the same manner as other planes are used in this state, and the plane was associated with the general mass of property in North Carolina, thereby meeting two factors that demonstrate that the plane was more or less permanently located in North Carolina, rather than Bassett’s Virginia headquarters. Id. Accordingly, the holding in Bassett actually supports our conclusion that SAS’s plane was “more or less permanently located” in North Carolina for tax year 2003 because SAS’s plane was in Delaware only for maintenance or alterations, rather than for continued, actual use as an airplane. SAS did not meet its burden of showing that it had qualified for an exemption under section 304(f), and SAS is required to pay ad valorem taxes on the plane consistent with its value on 1 January 2003. N.C. Gen. Stat. § 105-285(b) (2007).

Affirmed.

Judge STROUD concurs. Judge CALABRIA dissents by separate opinion.