Normand v. Cox Communications Louisiana, LLC

167 So. 3d 156, 14 La.App. 5 Cir. 563, 2014 La. App. LEXIS 3037, 2014 WL 7338496
CourtLouisiana Court of Appeal
DecidedDecember 23, 2014
DocketNo. 14-CA-563
StatusPublished
Cited by8 cases

This text of 167 So. 3d 156 (Normand v. Cox Communications Louisiana, LLC) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Normand v. Cox Communications Louisiana, LLC, 167 So. 3d 156, 14 La.App. 5 Cir. 563, 2014 La. App. LEXIS 3037, 2014 WL 7338496 (La. Ct. App. 2014).

Opinion

STEPHEN J. WINDHORST, Judge.

| ¡Appellant, the Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson (“appellant”), appeals the trial court’s judgment in favor of Cox Communications Louisiana, L.L.C. (“Cox”) and against appellant, dismissing appellant’s claims with prejudice. For the reasons that follow, we affirm the trial court’s judgment.

On or about October 8, 2008, appellant initiated a sales and use tax audit of Cox. The audit covered the tax periods of January 1, 2005 through December 31, 2009. On December 20, 2010, appellant issued two final assessments in Audit 3376 and Audit 3377.1 The total amount of principal and interest in dispute through the date of judicial demand is $695,683.79.2 Cox filed a formal protest on February 25, 2011.3 After issuing the final assessments, appellant filed a summary proceeding to recover sales tax for Cox’s Video on Demand (“VOD”) and Pay per View (“PPV”) programming.

Is After a trial on the merits, the trial court rendered judgment in favor of Cox, finding that VOD and PPV programming are not tangible personal property, but are nontaxable services. This appeal followed.

Standard of Review

A trial determination of fact is entitled to great deference on review. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La.7/1/11), 65 So.3d 1218, 1230. Factual findings of a trier of fact may not be disturbed by an appellate court absent manifest error. Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145, 145, reconsideration denied, 10-2071 (La.1/28/11), 56 So.3d 974. Where a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the reviewing court may feel that its own evaluations and inferences are more reasonable. McGlothlin, 65 So.3d at 1231; Allerton, 50 So.3d at 145; Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

In interpreting statutes, the court must give the words of a law their generally prevailing meaning. La. C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12. The meaning of words or phrases may be ascertained by the words and phrases with which they are associated. Cox Cable New Orleans v. City of New Orleans, 624 So.2d 890, 894 (La.1993). Words of gener-' al meaning should be applied only to such classes of things of the same general kind as those specifically mentioned. Id. The meaning of a word in a statute must be [159]*159determined in light of the statute as a whole. Id., citing Reed v. Washington Parish Police Jury, 518 So.2d 1044 (La.1988).

Taxing statutes must be strictly construed against the taxing authority. Goudchaux/Maison Blanche, Inc. v. Broussard, 590 So.2d 1159, 1161 (La.1991). I ¿Where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is adopted. Goudchaux, 590 So.2d at 1161; Cleco Evangeline, LLC v. La. Tax Comm’n, 01-2162 (La.4/3/02), 813 So.2d 351, 356; Cox Cable New Orleans, Inc. v. City of New Orleans, 624 So.2d 890, 895 (La.1993); Cox Cable New Orleans v. City of New Orleans, 94-2102, 94-2492 (La.App. 4 Cir. 11/16/95), 664 So.2d 742, 744. However, exemptions from taxation are strictly construed and must be clearly, unequivocally and affirmatively established. Goudchaux, 590 So.2d at 1161; See also, Cox Cable, 624 So.2d at 895; Cox Cable, 664 So.2d at 744, citing Bill Roberts, Inc. v. McNamara, 539 So.2d 1226, 1229 (La.1989).

Tangible Personal Property

In his first assignment of error, appellant contends that the trial court erred by finding that the separate access fee charged by Cox to a customer for each individual VOD and PPV transaction is not subject to sales tax as a lease or rental of tangible personal property, and by finding that such a transaction is a nontaxable service.

Jefferson Parish imposes a local sales tax on sales, leases, and rentals of tangible personal property and on the “sales of services.” Jefferson Parish Uniform Local Sales Tax Code Ordinance, Sections 35-22, 35-23, 35-24, 35-24.1. Jefferson Parish adopted by reference the Uniform Local Sales Tax Code in La. R.S. 47:337.1 through 47:337.100 and the definitions set forth in La. R.S. 47:301. Jefferson Parish Uniform Local Sales Tax Code Ordinance, Sections 35-16 and 17.

First, appellant contends that the data comprising Cox’s VOD and PPV programming constitutes computer software and therefore, is taxable as tangible personal property.

|fiCox contends that VOD and PPV are not tangible personal property. The customers do not receive a license or any rights to the VOD and PPV programming, except the right to view for a limited period of time. Cox also claims that transmitting data electronically does not transform it into computer software. Cox further contends VOD and PPV programming are transmitted in the same manner as other digital cable television services sold by Cox, which are not computer software or otherwise taxable. Cox maintains that VOD and PPV programming are services which are exempt under the applicable statutes.

Tangible personal property is defined as personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses. La. R.S. 47:301(16)(a). The definition of tangible personal property for use and sales tax purposes is synonymous with corporeal movable property in La. C.C. art. 461 and La. C.C. art. 471. South Cent. Bell Telephone Co. v. Barthelemy, 94-0499 (La.10/17/94), 643 So.2d 1240, 1243; City of New Orleans v. Baumer Foods, Inc., 532 So.2d 1381, 1383 (La.1988). La. C.C. art. 461 defines corporeal movables as things that have a body, whether animate or inanimate, and can be felt or touched, and La. C.C. art. 471 further defines corporeal movables as things, whether animate or inanimate, that nor[160]*160mally move or can be moved from one place to another.

Computer software is considered tangible personal property for purposes of use and sales taxation. Barthelemy, 643 So.2d at 1250. Appellant contends that the data stored in physical form on Cox’s computer hard drives or proprietary “Cloud” used to produce the visual images and sound on a YOD and PPV customer’s television is classified as computer software pursuant to La. R.S. 47:301(22). La. R.S. 47:301(22) provides:

| fi(22) The term “computer software” means a set of statements, data, or instructions to be used directly or indirectly in a computer in order to bring about a certain result in any form in which those statements, data, or instructions may be embodied, transmitted, or fixed, by any method now known or hereafter developed, regardless of whether the statements, data, or instructions are capable of being perceived by or communicated to humans. Computer software includes all types of software including operation, application, utilities, compilers, and all other forms.

Michael Latino, Cox’s former Vice President of Engineering and Operations for Louisiana properties4 testified that Cox’s VOD and PPV programming are not considered computer software.5

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167 So. 3d 156, 14 La.App. 5 Cir. 563, 2014 La. App. LEXIS 3037, 2014 WL 7338496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/normand-v-cox-communications-louisiana-llc-lactapp-2014.