Twin Hills Golf & Country Club, Inc. v. Town of Forest Park

2005 OK 71, 123 P.3d 5, 2005 Okla. LEXIS 79, 2005 WL 2649277

• Court: Supreme Court of Oklahoma
• Decided: October 18, 2005
• Docket: 102,265
• Status: Published

Opinions

TAYLOR, J.

¶ 1 The first impression issue presented in this appeal is whether plaintiff/appellant is exempt from the duties to collect, report and remit municipal sales tax by the language in 11 O.S.2001, § 21-109(A) which provides that tracts of land in excess of forty acres annexed to a municipality and used for commercial purposes shall not be subject to municipal taxes. We conclude that 11 O.S.2001, § 21-109(A) does not shield a vendor from the obligations created by a municipal sales tax. We hold the district court did not err in granting summary judgment in favor of the defendant town of Forest Park, Oklahoma.

I.Facts and Proceedings Below

¶2 Plaintiff/appellant, Twin Hills Golf & County Club, Inc. (Twin Hills), owns a tract of land in excess of forty aces on which it operates a golf and country club. In the operation of the golf and country club, Twin Hills collects state sales tax on taxable transactions and reports and remits the state sales tax to the Oklahoma Tax Commission.

¶ 3 In August of 2003, defendant/appellee, the town of Forest Park, Oklahoma (Forest Park), annexed the tract of land owned and used by Twin Hills for the golf and country club. After the annexation, Twin Hills objected to the enforcement of Forest Park’s municipal sales tax in the operation of the golf and country club. Twin Hills claimed it is exempt from any obligation to collect, report and remit the municipal sales tax under 11 O.S.2001, § 21-109(A) which provides that tracts of land in excess of forty acres annexed to a municipality and used for commercial purposes shall not be subject to municipal taxes. Forest Park refused to recognize Twin Hills’ claimed exempt status.

¶ 4 In March of 2004, Twin Hills filed a declaratory judgment action in the district court in Oklahoma County against Forest Park. Twin Hills asked for a ruling that it is exempt from any duty or obligation under Forest Park’s taxation ordinances by 11 O.S. 2001, § 21-109. Forest Park responded that the statute is unconstitutional under State ex rel. Nesbitt v. Ford, 1967 OK 186, 434 P.2d 934. Both parties moved for summary judgment. The district court sustained Forest Park’s motion for summary judgment and overruled Twin Hills’ motion for summary judgment. Twin Hills appealed. We retained the appeal.

II.Standard of Review

¶ 5 We must determine the meaning of the language in 11 O.S.2001, § 21-109(A) which provides that certain annexed tracts of land “shall not be subject to municipal taxes.” This statutory construction issue is a question of law subject to an appellate court’s plenary, independent and nondeferential reexamination. Blitz U.S.A., Inc. v. Oklahoma Tax Commission, 2003 OK 50, ¶ 6, 75 P.3d 883, 885. We review the district court’s summary judgment de novo. Id.

III.The phrase “shall not be subject to municipal taxes” in the first sentence in 11 O.S.2001, § 21-109(A) means that annexed tracts of land in excess of forty acres and used for commercial purposes shall not be subject to municipal property taxes.

¶ 6 The primary goal of any inquiry into the meaning of statutory language is to ascertain the intent of the legislature. City of Durant v. Cicio, 2002 OK 52, ¶ 13, 50 P.3d 218, 220; World Publishing Co. v. Miller, 2001 OK 49, ¶ 7, 32 P.3d 829, 834. We presume the Oklahoma Legislature expressed its intent in the statutory language. Where the language of a statute is plain and unambiguous, legislative intent and the meaning of the statute will be gleaned from the face of the statute without resort to judicial rules of statutory construction. Id. Where legislative intent cannot be ascertained from the plain meaning of the statutory language, as when ambiguity or conflict with other statutes is shown to exist, judicial rules of statutory construction may be utilized. Id.

¶ 7 In this case, legislative intent can be ascertained from the plain meaning of the statutory language, and we need not resort to judicial rules of statutory construction. The statute, 11 O.S.2001, § 21-109, reads:

A. Tracts of land in excess of forty (40) acres which are annexed to a municipality and used for industrial or commercial purposes shall not be subject to municipal taxes. Tracts of annexed land in excess of five (5) acres which are used by persons engaged in farming or ranching and all farm animals and livestock, and all agricultural implements and machinery and household goods located on the land, shall not be subject to municipal taxes unless the municipality furnishes services to these tracts as are ordinarily furnished to municipal residents. No land which is used for agricultural purposes may be taken within the limits of a town and taxed at a greater rate than land which is adjacent to but outside the town limits.

B. On any annexation after July 1, 1998, the revenue and taxation ordinances of any municipality and the licensing and regulatory authority of any municipality shall not apply or extend to any military installation located on federal property which has been annexed in part or in whole by a municipality.

¶ 8 Without ambiguity, the above quoted subsection A concerns the taxation of real and personal property. Real and personal property in Oklahoma are subject to ad valo-rem taxation¹ by school districts, cities, towns, counties, Okla. Const., art. 10, § 9, and other constitutionally authorized local jurisdictions, Okla. Const., art. 10, §§ 9A, et seq., but not by the State of Oklahoma.² Real and personal property may also be subject to municipal and county assessments for local improvements, in amounts not based on the property value, when authorized by the Legislature. Okla. Const., art. 10, § 7. Further, real and personal property may be subject to specific taxation, such as a direct inheritance tax or a registration fee.³

¶ 9 Without ambiguity, the above quoted subsection A is a limitation on municipal taxation of certain annexed land (real property) and certain personal property located on the annexed land. Each sentence in the subsection plainly prohibits the levy of property taxes for municipal purposes upon specifically identified annexed property. The first sentence prohibits municipal taxation of annexed tracts of land in excess of forty acres used for commercial or industrial purposes. The second sentence prohibits municipal taxation of 1) annexed tracts of land in excess of five acres used by persons engaged in farming or ranching and 2) agricultural and household personal property located on such annexed land, unless the municipality furnishes services to the annexed land. The third and final sentence in the subsection prohibits taxing of annexed land used for agricultural purposes at a rate higher than land adjacent to, but outside of, the municipality. The essence of the first sentence of the statute, reduced to its simplest form, is that “[t]racts ... shall not be subject to municipal taxes.”

¶ 10 The legislative intent of the unambiguous language in subsection A of § 21-109 is obvious. The Legislature intended to discourage municipalities from annexing large tracts of land used primarily for agricultural and commercial or industrial purposes in order to increase the revenue from property taxes. To accomplish this legislative goal, § 21-109(A) protects property. Specifically, it protects real property in excess of forty acres used for industry or commerce, and it protects real and personal property used for agriculture, together with some household personal property, from municipal taxation. Accordingly, we conclude that the meaning of the phrase “shall not be subject to municipal taxes” in the first sentence in 11 O.S.2001, § 21-109(A) is that the described tracts of land shall not be subject to municipal property taxes.

¶ 11 There is no language in the above quoted subsection A that concerns any kind of municipal taxation other than the taxation of property. Although the above quoted subsection B concerns any municipal revenue and taxation ordinance, such as a sales tax ordinance, the subsection expressly limits its application to military installations on federal property annexed by a municipality. Section 21-109(B) has no application in this case.⁴

IV. A municipal sales tax is not a tax on property; it is an excise tax; and, it is not within the limitation on municipal property tax in 11 O.S.2001, § 21-109(A).

¶ 12 Generally, taxes in Oklahoma may be categorized as property taxes, income taxes and excise taxes.⁵ As already discussed, property taxes are direct taxes on real or personal property based on the value of the property. Income taxes are direct taxes on income for a specific period of time. Excise taxes are indirect taxes on activities, occupations, privileges and consumption, such as the sales and use taxes. The term “excise tax” is a general term used to distinguish it from a property tax. Whether a tax is a property tax or an excise tax is most often so apparent that there is no room for argument. However, the category of the tax is determined from its operation, and the name of the tax assigned by the taxing authority, i.e. a legislature, is not controlling.⁶

¶ 13 The state sales tax is imposed upon sales to consumers in Oklahoma of specific services and tangible personal property not otherwise exempted. 68 O.S.2001, §§ 1351 and 1354. The state sales tax is an excise tax rather than a property tax or an income tax. In re City of Enid, 1945 OK 135, 158 P.2d 348; see, Oklahoma Tax Commission v. Sisters of the Sorrowful Mother, 1939 OK 539, 97 P.2d 888.

¶ 14 Municipalities are authorized to levy and collect taxes for municipal purposes as the Legislature may levy and collect for purposes of state government. 68 O.S.2001, § 2701. Accordingly, Forest Park has imposed a tax upon the sales of specific services and tangible personal property to consumers within its geographical limits similar to the state sales tax. Like the state sales tax, Forest Park’s municipal sales tax is an excise tax rather than a property tax or an income tax.

¶ 15 Twin Hills argues the first sentence in § 21-109(A) declaring that tracts of land in excess of forty acres which are annexed “shall not be subject to municipal taxes” exempts it from any obligations under Forest Park’s municipal sales tax law. We disagree. The statute is specific only as to municipal property taxes. There is no language in § 21-109(A) from which we can glean legislative intent to prohibit other kinds of municipal taxes such as the municipal sales tax. Accordingly, we conclude that 11 O.S.2001, § 21-109(A) does not shield a vendor from the obligations created by a municipal sales tax.

Y. We do not address the argument that 11 O.S.2001, § 21-109(A) is unconstitutional under State ex rel. Nesbitt v. Ford, 1967 OK 186, 434 P.2d 934.

¶ 16 In its motion for summary judgment, Forest Park contended that. 11 O.S.2001, § 21-109(A) is unconstitutional under State ex rel. Nesbitt v. Ford, 1967 OK 186, 434 P.2d 934. Forest Park argued that the Nes-bitt opinion declared the 1963 version⁷ of § 21-109(A) to be unconstitutional. Twin Hills responded that State ex rel. Nesbitt v. Ford is not controlling because § 21-109(A) is a part of the Oklahoma Municipal Code enacted several years after the State ex rel. Nesbitt v. Ford decision.⁸

¶ 17 In State ex rel. Nesbitt v. Ford, the attorney general sought writs of mandamus directing the county assessors in Oklahoma, Tulsa and Canadian Counties to remove certain commercial and industrial property from exempt status for purposes of the municipal tax levy on the ad valorem tax rolls. The State ex rel. Nesbitt v. Ford opinion did not expressly declare the challenged 1963 statute to be unconstitutional. Rather, it decided that tracts of land in excess of forty acres used for industrial or commercial purposes were not entitled to exempt status for purposes of municipal property taxes under the provisions of the Oklahoma Constitution, art. 5, § 50⁹ and art. 10, § 6,¹⁰ and the territorial statute § 458,¹¹ and that these provisions did not authorize the Legislature to exempt such tracts of land from municipal property taxes.

¶ 18 This cause does not arise out of circumstances involving ad valorem taxation of property as in the Nesbitt ease. As framed by the parties arguments, the instant controversy is whether Twin Hills is required to collect, report and remit Forest Park’s sales tax. We decide that 11 O.S.2001, § 21-109(A) does not shield a vendor from the obligations created by a municipal sales tax. Accordingly, we do not address Forest Park’s argument that 11 O.S.2001, § 21-109(A) is unconstitutional under State ex rel. Nesbitt v. Ford, 1967 OK 186, 434 P.2d 934.

VI. Conclusion

¶ 19 We conclude that 1) the phrase “shall not be subject to municipal taxes” in the first sentence in 11 O.S.2001, § 21-109(A), stating that tracts of land in excess of forty (40) acres which are annexed to a municipality and used for industrial or commercial purposes shall not be subject to municipal taxes, means that such tracts of land shall not be subject to municipal property taxes; and 2) 11 O.S.2001, § 21-109(A) does not shield a vendor from the obligations created by a municipal sales tax. We hold the district court did not err in granting summary judgment in favor of the defendant town of Forest Park, Oklahoma.

SUMMARY JUDGMENT OF THE DISTRICT COURT AFFIRMED.

WATT, C.J., and LAVENDER, OPALA, EDMONDSON and TAYLOR, JJ., concur. WINCHESTER, V.C.J., and HARGRAVE and KAUGER, JJ., concur in result. COLBERT, J., not participating.

1 . Generally, ad valorem taxation of real property is based on the fair cash value for the highest and best use for which the property was actually used, while ad valorem taxation of personal property is based on the fair cash value estimated at the price it will bring at a fair and voluntary sale. Okla. Const., art. 10, § 8.

2 . The first paragraph of Okla. Const., art. 10, § 9(a) provides for ten mills "to be apportioned between county, city, town and school district, by the County Excise Board, until such time as a regular apportionment thereof is otherwise provided for by the Legislature.”

The second paragraph of Okla. Const., art. 10, § 9(a) states: "No ad valorem tax shall be levied for State purposes, nor shall any part of the proceeds of any ad valorem tax levy upon any kind of property in this State be used for State purposes.”

3 .Okla. Const., art. 10, § 12 provides that the Legislature shall have the power to impose "license, franchise, gross revenue, excise, income, collateral and direct inheritance, legacy, and succession taxes; also, stamp, registration, production or other specific taxes.”

4 . In 1998, the Legislature added subsection B to § 21-109. 1998 O.S.L., ch. 119, § 1.

5 . For a primer on the categories or kinds of taxation see Cooley on Taxation, vol. 1, 4th ed., §§ 38-56.

6 .In reenacting the Oklahoma Sales Tax Code in 1981, the Legislature stated its intent to levy an excise tax upon the sale of specified services and tangible personal property not otherwise exempted from the levy. 1981 O.S.L., ch. 313, § 3, now codified at 68 O.S.2001, §§ 1350 et seq.

7 . In State ex rel. Nesbitt v. Ford, the attorney general challenged various county assessors who applied 11 O.S.Supp.1963, § 481 so as to exempt the property tax levy for municipalities those annexed tracts of land in excess of forty acres.

8 . In 1977, the Oklahoma Legislature overhauled the statutes governing municipalities by enacting the Oklahoma Municipal Code. 1977 O.S.L., ch. 256.

9 . Okla. Const., art. 5, § 50 reads: "The Legislature shall pass no law exempting any property within this State from taxation, except as otherwise provided in this Constitution.”

10 . The applicable provision in Okla. Const., art. 10, § 6 reads: "Provided, that all property not herein specified now exempt from taxation under the laws of the Territory of Oklahoma, shall be exempt from taxation until otherwise provided by law.”

11 . The pre-statehood statute codified in the 1903 territorial statutes. That statute provided that "tracts of land in excess of five acres used for agricultural purposes shall not be subject to city taxes.” The first Oklahoma Legislature amended that territorial statute, adding a proviso that "tracts of land in excess of forty acres shall not be subject to city taxes.” 1909 Okla.Stat., § 817.