State Department of Revenue v. Mobile Gas Service Corp.

621 So. 2d 1333, 1993 Ala. Civ. App. LEXIS 95, 1993 WL 47323
CourtCourt of Civil Appeals of Alabama
DecidedFebruary 26, 1993
Docket2910548
StatusPublished

This text of 621 So. 2d 1333 (State Department of Revenue v. Mobile Gas Service Corp.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Department of Revenue v. Mobile Gas Service Corp., 621 So. 2d 1333, 1993 Ala. Civ. App. LEXIS 95, 1993 WL 47323 (Ala. Ct. App. 1993).

Opinion

YATES, Judge.

This tax case presents the question of whether collection fees and reconnect fees that Mobile Gas Service Corporation (Mobile Gas) charges its customers are subject to the utility gross receipts tax levied pursuant to §§ 40-21-80 through -87, Ala. Code 1975. We affirm the trial court’s finding that these fees are not subject to the tax. The State Department of Revenue (department) entered a preliminary assessment of unpaid utility taxes against Mobile Gas in the amount of $43,251.50, including interest and penalties, for the period of July 1986 through June 1989. Mobile Gas requested a hearing before an administrative law judge, which resulted in an order concluding that reconnect fees and collection fees are not subject to the utility tax and ordering that the department’s preliminary assessment be reduced and made final with no additional tax due.

The department appealed to the trial court, pursuant to § 40-2-22, Ala.Code 1975. The trial court held that collection fees and reconnect fees are not subject to the utility gross receipts tax levied at § 40-21-82, and affirmed the final assessment as ordered by the administrative law judge. The department appeals from the trial court’s order.

The record reveals that Mobile Gas provides natural gas to customers in the Mobile, Alabama, area. It reported and paid taxes on revenues derived from the sale of natural gas during the period in question; however, it did not include collection fees and reconnect fees when computing the tax. A reconnect fee is the fee for reconnecting gas service after someone has moved from one location to another or after service has been disconnected because of nonpayment for services. A collection fee is charged when Mobile Gas must send a collector to a residence to try to collect payment on a gas bill prior to disconnecting service. Mobile Gas’s reconnect fee is $20, and its collection fee is $4.

The department audited Mobile Gas in 1971 and 1985, and, although reconnect fees and collection fees clearly were not included in the gross receipts, the department did not object to the fact that the fees were not included. In addition, Mobile Gas introduced evidence that Alabama Gas Cor[1334]*1334poration was audited in 1987, and the fact that reconnect fees and collection fees were not included in the tax base was not questioned.

Section 40-21-82, Ala.Code 1975, provides for a privilege or license tax to be levied against every utility in the state. The amount of the tax is determined by the application of rates against gross sales or gross receipts from the furnishing of utility services. The definition of gross receipts, which may be found at § 40-21-80(a)(2), has remained the same since 1969, and it provides, in pertinent part, as follows:

“The value proceeding or accruing from the furnishing of utility services, all receipts actual and accrued, without any deduction on account of the cost of the utility services sold, the cost of the materials used, labor or service cost, interest paid or any other expenses whatever, and without any deductions on account of losses.”

In July 1969 the department promulgated a regulation to become effective September 1,1969, called “Utility Tax Rule No. 1.” The rule, which is now also titled “Utility Privilege or License Tax Regulation,” contained the following statement, which further defined gross receipts:

“The gross receipts from the furnishing of electricity and natural gas including fees and service charges to customers which include but are not limited to charge for installation of meters, charge for transferring service from one house to another, collection fee for delinquent accounts, reading meters, lighting pilots, and inspection fees are subject to the tax.”

In September 1969 the rule was amended to state that “[t]he gross receipts from the furnishing of electricity and natural gas are subject to the tax.” Another section of the rule that the department claims is pertinent originally provided and continues to provide that “[wjhere a discount is deductible from the gross charge for electricity and natural gas if payment therefor is made within a prescribed period or where an additional amount is added for failure to make payment within a prescribed period, the tax applies to the amount actually paid.”

The department states that it can find no authority that addresses the issue, and it appeals asking this court to determine what composes “gross receipts.” In support of its position in favor of the inclusion of the above fees within the definition of gross receipts, the department claims that the statutory definition of gross receipts and the above-referenced portions of the rule should control, so that collection fees and reconnect fees are included in the term “gross receipts.” The department further claims that the definition of gross receipts is broad enough to encompass reconnect fees and would have this court agree that these fees are subject to taxation. Alternatively, the department claims that, because the taxation of collection fees has been addressed in the regulation, at the very least the collection fees should be subject to taxation.

Mobile Gas argues in response that certain rules of statutory construction must be followed. First, Mobile Gas states that the scope of coverage of tax statutes must be strictly construed against the taxing authority and in favor of the taxpayer. Pilgrim v. Gregory, 594 So.2d 114 (Ala.Civ.App.1991); State v. Harrison, 386 So.2d 460 (Ala.Civ.App.1980). Clearly, this rule applies in the present case.

Second, Mobile Gas states that statutes that deal with the same subject matter, or that have the same general purpose, should be construed together. East Brewton Materials, Inc. v. State Department of Revenue, 45 Ala.App. 584, 233 So.2d 751 (Ala.Civ.App.1970). Mobile Gas claims that § 40-21-85 logically links the administration of the utility tax law to the sales tax law contained in §§ 40-23-1 through -38, Ala.Code 1975. It further claims that the sales tax law has been construed to apply only to the proceeds derived from the sale of tangible personal property and that incidental charges for transportation or installation that are charged separately and can be distinguished from the amount received for the tangible property are not taxed. [1335]*1335Department of Revenue Regulations 810-6-1-81(2) and 810-6-l-.178(2). Therefore, Mobile Gas argues, because the utility tax is to be determined by the application of rates against gross sales or gross receipts from the furnishing of natural gas, only proceeds from the sale of the gas should be taxed, not incidental charges, which, it claims, are not purchased by the consumer. Section 40-21-85 states that the provisions of the utility gross receipts tax article are to be administered and that the tax levied therein is to be collected in accordance with the procedures regarding sales and use taxes in §§ 40-23-1 through -38. Section 40-23-l(a)(8) defines gross receipts as follows:

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Related

State v. Harrison
386 So. 2d 460 (Court of Civil Appeals of Alabama, 1980)
State v. Natco Corporation
90 So. 2d 385 (Supreme Court of Alabama, 1956)
Boswell v. Abex Corporation
317 So. 2d 314 (Court of Civil Appeals of Alabama, 1975)
Pilgrim v. Gregory
594 So. 2d 114 (Court of Civil Appeals of Alabama, 1991)
East Brewton Materials, Inc. v. State, Dept. of Revenue
233 So. 2d 751 (Court of Civil Appeals of Alabama, 1970)
State v. Tri-State Pharmaceutical
371 So. 2d 910 (Court of Civil Appeals of Alabama, 1979)

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Bluebook (online)
621 So. 2d 1333, 1993 Ala. Civ. App. LEXIS 95, 1993 WL 47323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-department-of-revenue-v-mobile-gas-service-corp-alacivapp-1993.