POPPLEWELL'S ALLIGATOR DOCK NO . 1, INC . V. REVENUE CABINET, COMMONWEALTH OF KENTUCKY AND REVENUE CABINET, COMMONWEALTH OF KENTUCKY V. STATE DOCK, INC . ; and POPPLEWELL'S ALLIGATOR DOCK NO . 1, INC .
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2001-SC-0434-DG
POPPLEWELL'S ALLIGATOR DOCK NO.
1, INC .
V.
~JlrU lJ L5 5/3-04 ~'I~AGmu;++i~C+~
ON REVIEW FROM COURT OF APPEALS
NO. 1999-CA-1800-MR
FRANKLIN CIRCUIT COURT NO. 98-CI-1578
REVENUE CABINET, COMMONWEALTH
OF KENTUCKY
AND
APPELLEE
2001-SC-0439-DG
REVENUE CABINET, COMMONWEALTH
OF KENTUCKY
V.
APPELLANT
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 1999-CA-1798-MR
FRANKLIN CIRCUIT COURT NO. 97-CI-1543
STATE DOCK, INC . ; and
POPPLEWELL'S ALLIGATOR DOCK NO.
1, INC .
APPELLEES
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN 2001-SC-0434-DG AND REVERSING IN 2001-SC-0439-DG
I. ISSUES
These consolidated appeals present two issues for the Court's consideration. In
2001-SC-434-DG, we answer a question concerning substantive sales and use tax law,
and in 2001-SC-439-DG, we reexamine procedural law governing judicial review of a
sales and use tax controversy .
Popplewell's Alligator Dock No . 1, Inc. ("Alligator Dock") rented houseboats to
the public for recreation and vacation purposes . It collected and remitted sales and use
taxes on the houseboat rentals to Kentucky's Revenue Cabinet ("Revenue Cabinet"),
but it failed to remit taxes on gasoline it sold for use in the houseboats . After an audit,
the Revenue Cabinet assessed taxes against Alligator Dock for the gasoline it sold .
Alligator Dock contends that the gasoline sales were exempt from sales and use taxes
under KRS 139 .483's exemption for "fuel consumed in the operation of . . . ships and
vessels which are used principally in the transportation of property or in the conveyance
of persons for hire." Was the gasoline sold by Alligator Dock for use in its houseboats
exempt from Kentucky's sales and use tax? Because we hold that KRS 139 .483's
exemption does not apply to houseboats used principally for lodging, Alligator Dock
owes sales and use taxes on the gasoline. We, therefore, affirm the Court of Appeals's
decision upholding the Revenue Cabinet's assessment .
State Dock, Inc ("State Dock") also rented houseboats to the public for vacations.
Without pursuing any of the administrative remedies available to it, State Dock filed a
civil action in Franklin Circuit Court against the Revenue Cabinet in which it sought (1) a
declaratory judgment that its houseboat rentals are not subject to sales and use taxes,
and (2) a permanent injunction enjoining the Revenue Cabinet from assessing or
attempting to collect such taxes . Alligator Dock intervened in the action and requested
the same relief and an additional declaration that the gasoline it sold for consumption in
the operation of its houseboats was not subject to sales and use taxes. The trial court
dismissed the declaratory judgment actions on jurisdictional grounds because it found
that State Dock and Alligator Dock (collectively "the Docks") were required to pursue
their administrative remedies before seeking judicial review. The Court of Appeals,
however, reversed the trial court and held that, because there was no factual dispute
and the Docks only wished to ascertain the validity or applicability of KRS 139 .483, the
Docks were not required to exhaust their administrative remedies before they could
seek declaratory relief. Were the Docks required to exhaust their administrative
remedies? Because the Docks failed to demonstrate that pursuit of their administrative
remedies was likely to be inadequate or an exercise in futility, they were required to
exhaust their administrative remedies before seeking judicial review. Accordingly, we
reverse the Court of Appeals on this issue and dismiss the Docks' declaratory judgment
actions.
II. BACKGROUND
A. 2001-SC-434-DG
The facts are not disputed . Alligator Dock operated a marina on Lake
Cumberland in Russell County, Kentucky. As part of its retail business, Alligator Dock
rented luxury houseboats to the public for recreation and vacation purposes. Under the
terms of Alligator Dock's rental agreements, a person renting a houseboat took
possession of it with a full tank of gasoline and was required to return it to the marina at
the end of the rental period with a full tank of gasoline . If, upon the houseboat's return,
its gasoline tank was not filled, the marina's employees would refill it, and the renter was
charged an additional amount for the gasoline used during the rental period . Although
Alligator Dock collected and remitted sales and use tax on its houseboat rentals,2 it did
The case was submitted to the Kentucky Board of Tax Appeals ("KBTA") on
stipulations of the parties and the deposition of an employee of the Revenue Cabinet .
2 KRS 139.600 ("For the purposes of the sales tax, gross receipts from rentals or
leases of tangible personal property shall be reported and the tax paid in accordance
with such rules and regulations as the cabinet may prescribe .") .
not collect and remit sales and use taxes3 on the gasoline sold by it and consumed in
the operation of its rented houseboats .
After an audit, the Revenue Cabinet issued "sales and use tax assessments"
totaling $12,018.51 4 against Alligator Dock for gasoline sales to persons renting its
houseboats . Following a final ruling by the Revenue Cabinet that upheld its
assessments, Alligator Dock appealed the assessments to the Kentucky Board of Tax
Appeals ("KBTA") and argued that the gasoline sales were exempt from use taxes
under KRS 139 .483, which provides :
The taxes imposed under the provisions of [the Sales and
Use Taxes] [C]hapter shall not apply to the sale of, or the
storage, use, or other consumption of, ships and vessels,
including property used in the repair or construction of,
supplies and fuel consumed in the operation of, and supplies
consumed by crew members aboard such ships and vessels
which are used principally in the transportation of property or
in the conveyance of persons for hire.
The KBTA concluded that KRS 139.483's exemption did not apply because the
houseboats were not "principally engaged or used in the transportation of property or
the conveyance of persons for hire . . . ." Accordingly, the KBTA affirmed the Revenue
Cabinet's final ruling and upheld its tax assessments against Alligator Dock. Alligator
Dock then appealed to Franklin Circuit Court, which agreed with the KBTA's conclusion
that the houseboats were not engaged "for hire" and affirmed the KBTA's decision .
Seeking further review, Alligator Dock appealed to the Court of Appeals, which also
3 Although the parties refer to the tax that the Revenue Cabinet seeks to collect
on the gasoline as "sales and use tax," apparently it is properly designated as only a
"use tax." See Commonwealth ex rel. Ross v. Lee's Ford Dock, Inc. , Ky., 551 S .W .2d
236 (1977).
4 Alligator Dock did not contest additional tax assessments of $2,120.91 for sales
of gasoline to persons not renting houseboats from it.
agreed with this construction of the KRS 139 .483 exemption and affirmed the Franklin
Circuit Court's decision . This Court granted Alligator Dock's motion for discretionary
review, and we, too, affirm the tax assessments .
B . 2001-SC-0439-DG
State Dock filed a declaratory judgment action against the Revenue Cabinet in
which it sought a declaration that KRS 139.483 operated to exempt its houseboat
rentals from sales and use taxes as well as a permanent injunction enjoining the
Revenue Cabinet from assessing or attempting to collect sales taxes on its houseboat
rentals . After it was permitted to intervene, Alligator Dock requested the same relief as
State Dock, and, by amended complaint, also requested a declaratory judgment that its
gasoline sales to persons renting its houseboats were exempt from sales and use taxes.
The Revenue Cabinet asserted that the trial court lacked jurisdiction and moved to
dismiss the action . The trial court agreed, held that the Docks were required to pursue
the administrative remedies provided by statute, and granted the Revenue Cabinet's
motion to dismiss . The Docks appealed and the Court of Appeals held that, because
the facts were undisputed and the only issue involved the construction and application
of KRS 139.483, the Docks were not required to exhaust their administrative remedies;
thus, it reversed the case and remanded it to the trial court. We granted discretionary
review and now reverse .
III . ANALYSIS
A. 2001-SC-434-DG
As previously noted, Alligator Dock contends that its sale of gasoline consumed
in the operation of its rental houseboats is exempt from sales and use taxes under KRS
139.483. Accordingly, this appeal involves the construction and application of KRS
139.483's sales and use tax exemption, and we begin that analysis with the observation
that tax exemptions are disfavored and will be narrowly or strictly construed, with all
doubts resolved against the exemption's application, and with the burden placed on the
party claiming the exemption to show the party's entitlement to it .5 In support of its
contention, Alligator Dock argues that "the plain language of the statute calls for
application of the exemption[,]" and the anchor of its argument, understandably, is
Barnes v . Department of Revenue .
Barnes is indeed facially similar to the present case. There, the Revenue
Department (now the Revenue Cabinet) assessed a use tax on purchases of
houseboats that a marina "registered . . . as livery or boats for hire and . . . leased on a
weekly basis"' to vacationers . The Revenue Department ruled that the KRS 139.483
exemption applied only to "river-industrial vessels, such as barges and towboats," and
not pleasure craft, because although the exemption was codified by the reviser of the
statutes as part of the sales and use taxes chapter, KRS Chapter 139,8 it was enacted
5 Revenue Cabinet v. Hubbard , Ky., 37 S.W.3d 717, 719 (2000) ("We begin with
the basic rule of statutory construction that tax exemptions are narrowly construed, and
the party seeking the exemption has the burden to show that he, she, or it is entitled to
the exemption ."); Camera Center, Inc. v. Revenue Cabinet , Ky., 34 S .W.3d 39, 41
(2000) ("This Court recognizes that the burden is on the party claiming an exemption to
demonstrate its entitlement to the exemptions and that they have met all statutory
requirements ; that exemptions from taxation are generally disfavored and that all doubts
are resolved against an exemption ."); Delta Air Lines, Inc . v . Commonwealth, Revenue
Cabinet , Ky., 689 S.W.2d 14, 18 (1985) ("Exemptions from taxation are generally
disfavored and all doubts are resolved against an exemption .").
6 Ky. App ., 575 S .W .2d 169 (1978) .
7 Id . at 171 .
8 KRS Chapter 139 is known as the "Veterans' Bonus Sales and Use Tax Law."
KRS 139 .010 .
as an integral part of the Kentucky Port and River Development Commission Act,9 which
was entitled "AN ACT relating to the Port and River Development and the taxation
thereof," and was enacted for the purpose of "aid[ing] in the promotion and development
of river-related industry, agriculture, and commerce in Kentucky[.]" 10 The Court of
Appeals disagreed with the Revenue Department's conclusion and observed that KRS
139.483 "contains no language excluding houseboats from the application of the
exemption[,]" and "draws no distinction between industrial commercial craft and
pleasure commercial craft."" The Barnes Court then concluded "that the statute has a
general application to all ships and vessels which are used primarily in the
transportation of property or the conveyance of persons for hire" 12 and thus held that,
when the marina rented the houseboats to other persons, the houseboats were being
used in the conveyance of persons for hire and "are exempt from the use tax . . . by
virtue of KRS 139 .483." 13
In the case at bar, the KBTA, the trial court, and the Court of Appeals all
distinguished Barnes on the same general bases, and the Revenue Cabinet urges this
Court to do so as well . First, the Revenue Cabinet emphasizes that the Barnes Court
did not dispense with the fundamental requirements of the exemption, and notes that,
even under the logic of Barnes , the exemption would not apply to a case where a
person purchased a houseboat for his or her personal use rather than for hire to others .
9 1966 Ky. Acts ch . 64, § 12 .
10
1966 Ky. Acts ch. 64, § 2 .
11
Barnes, 575 S.W .2d at 171 .
12
Id .
13
Id . at 172 .
Next, the Revenue Cabinet points out that, subsequent to Barnes , the legislature
amended KRS Chapter 139's definitions of "sale" and "purchase" to include bona fide
leases or rentals in the meaning of those terms . 14 The Revenue Cabinet asserts that,
as a result of the amendment, the marina involved in Barnes would no longer owe a use
tax on the initial purchases of its houseboats, 15 because: (1) its subsequent rentals of
those houseboats constituted sales of the houseboats (i.e. , a rental is a sale after the
1985 amendment), and (2) given that "use" does not include "sale[s] [of the houseboats]
in the regular course of [the marina's] business[,]" 16 the "use" essential to the application
of the tax has been either precluded or negated .
Instead, the Revenue Cabinet
contends that the marina's rentals of the houseboats became the taxable transactions . 17
Accordingly, the Revenue Cabinet argues that Barnes does not apply to the present
case for the reason "that the transactions at issue in Barnes and taxable but for the
14
1985 Ky. Acts ch. 6, Part III, §§ 6-10. See also Revenue Cabinet v. Ashland
Oil, Inc . , Ky . App ., 888 S .W .2d 701, 704 (1994) (noting that "[t]he amendment enacted
by the Legislature effective August 1, 1985, expanded the definition of "purchase"
contained in KRS 139.090 to include `lease or rental ."); 103 KAR 28:051 § 1(1) ("The
lease or rental of tangible personal property for a consideration in Kentucky is treated as
a sale or purchase the receipts of which are subject to the sales or use tax .").
15
The Revenue Cabinet states that at the time of Barnes , a houseboat rental
was a `use' for purposes of the application of the sales and use tax law . . . because it
was not a sale under the law as it then existed . . . ." (emphasis in original).
16
KRS 139.190 ("`Use' includes the exercise of any right or power over tangible
personal property incident to the ownership of that property, or by any transaction in
which possession is given, except that it does not include the sale of that property in the
regular course of business ." (emphasis added)) .
17
The Revenue Cabinet asserts in its brief to this Court that "the regulation
promulgated to address the extension of the sales and use tax to bona fide leases or
rentals specifically states : Taxable leases or rentals include the following types of
tangible personal property : . . . . (e) Boats, canoes, houseboats and sailboats. 103 KAR
28 :051 § 2(1)(e)." (emphasis added by Revenue Cabinet). And, the Revenue Cabinet
notes that Alligator Dock stipulated that it has collected and remitted sales tax on its
houseboat rentals .
application of the KRS 139.483 exemption no longer figure in the application of KRS
139 .483 because they are not taxable in the first place under current law ." Thus, the
Revenue Cabinet maintains that because the persons renting the houseboats from the
marina are using the houseboats principally for their personal pleasure and not the
transportation of property or the conveyance of persons for hire, the KRS 139.483
exemption does not apply and the gasoline sales are subject to the use tax. We agree
with the Revenue Cabinet's view that, as a result of the amendment to Chapter KRS
139, Barnes is readily distinguishable and the exemption does not apply to the gasoline
sales in the present case.
Additionally, we agree with the Revenue Cabinet's contention that the Barnes
Court's interpretation of the KRS 139.483 exemption was flawed . First, the Court of
Appeals did not construe the exemption in accordance with the well-settled rule of
statutory construction that tax exemptions are disfavored and thus will be narrowly or
strictly construed .' 8 Instead, the court applied a contra rule - "when there is confusion,
ambiguity or doubt about the meaning of a statute, such doubt must be resolved in favor
of the taxpayer''' s- that is simply not applicable when a tax exemption is at issue.2° In
other words, although tax statutes creating liability are to be strictly construed against
18
See supra note 5 .
' 9 Barnes , 575 S.W .2d 169, 172 .
2°
Stoner Creek Stud, Inc. v. Revenue Cabinet Commonwealth of Kentucky, Ky.
App., 746 S.W.2d 73, 75 (1987) ("In general, tax statutes must be strictly construed and
all doubts or ambiguities resolved in favor of the taxpayer . In the case of statutes
providing exemption from tax, however, the converse is true, and ambiguities must be
construed strictly against the taxpayer." (citations omitted)).
the taxing authority, exemptions are to be narrowly construed against the taxpayer,
and the Barnes Court started off on the wrong foot by applying the wrong rule of
statutory construction . Second, the Barnes Court incorrectly concluded that "[b]ecause
the Revenue Department has not previously assessed a use tax on houseboats they
should not be permitted to impose this tax at this time without statutory authority"22
because contemporaneous construction cannot be based upon either an administrative
agency's mere nonaction or its failure to correctly administer the law. Third, the
Barnes Court incorrectly determined that the KRS 139 .483 exemption was not an
integral part of the Port and River Development Commission Act simply because the
exemption was codified in the Sales and Use Taxes Chapter, KRS Chapter 139 . 24
Although the title of an enactment itself is a proper consideration in its construction,
25
the title of the KRS Chapter where an enactment is placed by the reviser of statutes has
21
RONALD BENTON BROWN & SHARON JACOBS BROWN, STATUTORY INTERPRETATION :
THE SEARCH FOR LEGISLATIVE INTENT § 7.12 (NITA 2002) [hereinafter BROWN & BROWN]
("[S]tatutes creating tax liabilities are to be strictly construed against the federal
government . Conversely, deductions are matters of legislative grace, so they are to be
narrowly construed against the taxpayer .").
22
Barnes, 575 S .W .2d at 171 .
23
Revenue Cabinet v. Lazarus, Inc. , Ky., 49 S .W.3d 172, 175 (2001) .
24
Barnes , 575 S .W .2d at 171 ("It appears to us that the statute is on its face an
integral part and is located in the sales and use tax provisions of Chapter 139 of the
statutes .") .
25
Meyers v. Walter, Ky., 253 S.W .2d 595, 597 (1952) ("This construction is
further supported by the title of the Act . . . ."); Fayette County Fiscal Court v. Fayette
County , 314 Ky. 595, 236 S .W.2d 455 (1950) ; Ingram's Adm'r v. Advance Motor Co. ,
283 Ky. 87, 140 S .W.2d 840, 841 (1940) ("We have held frequently that in the
construction of an Act its title is to be read in connection with it.").
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no role to play in its interpretation . The Port and River Development Commission Act
was codified for the most part in KRS 154.310 - .345, and the reviser of statutes
recognized that the exemption at issue in this case was part of the Port and River
Development Commission Act and thus codified § 1 of the Act27 as KRS 154.345 to
read as follows : "KRS 65 .510 to 65.530, 139 .483, [and] 154.310 to 345 shall be known
as the Port and River Development Commission Act.
,28
Accordingly, the Court of
Appeals erred when it improperly gave weight to the title of the KRS Chapter where the
exemption was codified, but failed to give the weight that it should have to the title of the
Act containing the exemption . Last, and most important, although the Barnes Court
correctly noted the most common rule in statutory construction, i.e. , "[s]tatutory
language must be given its clear and commonly accepted meaning[,] "29 it did not adhere
to that rule in construing the exemption . The exemption requires that the ships and
vessels (hereafter collectively "vessels") be "used principally in the transportation of
26
KRS 446.140 ("Title heads, chapter heads, section and subsection heads or
titles, and explanatory notes and cross references, in the Kentucky Revised Statutes, do
not constitute any part of the law, except as provided in KRS 355 .1-109 .").
27
1966 Ky. Acts ch . 64, § 1 ("This Act shall be known as the Kentucky Port and
River Development Commission Act.").
28
KRS 154.345 (emphasis added) (repealed 1992 Ky. Acts ch. 105, § 77).
29 Barnes , 575 S.W.2d at 171 . Accord KRS 446 .080(4) ("All words and phrases
shall be construed according to the common and approved usage of language, but
technical words and phrases, and such others as may have acquired a peculiar and
appropriate meaning in the law, shall be construed according to such meaning ."); Bailey
v. Reeves, Ky., 662 S .W.2d 832, 834 (1984) ("We have a duty to accord to words of a
statute their literal meaning unless to do so would lead to an absurd or wholly
unreasonable conclusion.") ; Western & Southern Life Ins. Co. v. Weber , 183 Ky. 32,
209 S .W . 716, 717 717 (1919) ("[N]o intention shall be read into the wording of the
statute contrary to the plain meaning of the language employed ."); BROWN & BROWN,
supra note 21, § 4.2 ("The most commonly stated rule today is that the 'plain meaning'
of the statute is to control. There seems to be no dispute with this principle .").
property or in the conveyance of persons for hire.
,3°
Barnes erroneously construed the
exemption as applying to any vessel "for hire." 31 Under the rules of English grammar,
however, the phrase "for hire," which means "[a]vailable for use or services in exchange
for compensation," 32 modifies only the phrase "conveyance of persons ." 33 Thus, the
exemption is restricted to vessels used principally: (1) "in the transportation of property,"
30
KRS 139 .483.
31
Barnes , 575 S .W .2d at 171 ("The statute draws no distinction between
industrial commercial craft and pleasure commercial craft ."). Likewise, in its brief,
Alligator Dock construes the exemption as applying to "[v]essels that are `for hire."'
32
WILLIAM MORRIS, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE 624 (1969). Accord Beaver Creek Co-op. Tel . Co. v. Public Utility Com'n ,
182 Or.App. 559, 571, 50 P.3d 1231, 1237-38 (2002) ("In common usage, "for hire"
means "available or offered for rent." Webster's Third New Int'I Dictionary at 892 ; see
also id. at 1072 (defining "hire" and describing the phrase "for hire" to mean "available
for use or service in return for payment").
33
Smith v. Commonwealth , Ky. App ., 41 S .W .3d 458, 460 (2001) ("Furthermore,
the participial phrase at the very end of the definition, "constituting a felony," is not
preceded by a comma - a grammatical fact that renders it restrictive in nature modifying
only the noun . . . immediately preceding i t . . . .") ; Citizens' Telephone Co . v. City of
Newport , Ky., 188 Ky. 629, 224 S .W . 187, 190 (1920) ("'By what is known as the
doctrine of the 'last antecedent,' relative and qualifying words, phrases, and clauses are
to be applied to the words or phrase immediately preceding, and are not to be
construed as extending to or including others more remote, unless such extension is
clearly required by a consideration of the entire act."' (citation omitted)) . Accord
Barnhart v. Thomas ,
U .S .
,124 S.Ct. 376, 380, 157 L .Ed .2d 333,
(2003) ("The Third Circuit's reading disregards - indeed, is precisely contrary to the grammatical `rule of the last antecedent,' according to which a limiting clause or
phrase . . . should ordinarily be read as modifying only the noun or phrase that it
immediately follows . . . . While this rule is not an absolute and can assuredly be
overcome by other indicia of meaning, we have said that construing a statute in accord
with the rule is `quite sensible as a matter of grammar."' (citations omitted)); 2A NORMAN
J . SINGER, STATUTES AND STATUTORY CONSTRUCTION § 47 .33, p . 369-73 (6th ed . 2000
Revision) ("Referential and qualifying words and phrases, where no contrary intention
appears, refer solely to the last antecedent . The last antecedent is `the last word,
phrase, or clause that can be made an antecedent without impairing the meaning of the
sentence.' Thus a proviso usually is construed to apply to the provision or clause
immediately preceding it. . . . Evidence that a qualifying phrase is supposed to apply to
all antecedents instead of only to the immediately preceding one may be found in the
fact that it is separated from the antecedents by a comma.") .
- 1 2-
and (2) "in the conveyance of persons for hire." Accordingly, the exemption applies to
any vessel used principally "in the transportation of property," regardless of whether it is
transporting property for compensation, but applies to a vessel conveying persons only
when the conveyance is in exchange for compensation . In both Barnes and the present
case, the houseboats were not used principally for either purpose ; they were used
principally to provide lodging to vacationers and for their recreational purposes. Any
transportation of property was extremely insignificant and, like any conveyance of
persons accomplished, was ancillary to the primary purposes of lodging and recreation .
One of the fundamental maxims of statutory construction is that an act "is to be
read as a whole[,]" 34 i.e. , "any language in the [act] is to be read in light of the whole
[act], not just a portion of it." 35 "The point of this maxim is that the whole [act] provides
the context into which to place any language found in the [act]." 36 As previously noted,
the exemption at issue was passed as part of the Kentucky Port and River Development
34
Commonwealth v. Louisville Taxicab & Transfer Co . , 210 Ky. 324, 275 S .W .
795 (1925) ("[T]he rule is that, in construing an act, it must be considered as a whole,
and so construed, if possible, as to give effect to every part thereof, and to produce a
harmonious whole, and we have decided we can look at other sections to see what the
Legislature meant . . . ... ) ; George v. Scent , Ky., 346 S.W.2d 784, 789 (1961) ("The
presumption is that the Legislature intends an Act to be effective as an entirety. No rule
of statutory construction has been more definitely stated or more often repeated than
the cardinal rule that significance and effect shall, if possible, be accorded to every part
of the Act. So, the construction of the present Act requires consideration not of a few
words . . ., but of the whole Act . . . .") ; Greene v. Kentucky Illiteracy Commission , Ky.,
214 S .W . 436, 437 (1919) ("We are not, however, permitted by any rule of statutory
construction to eliminate one part of a statute in favor of another, arbitrarily, or except to
give effect to the legislative intent as expressed by the act considered as a whole, and
must, if possible, give some effect to all parts in a construction of the entire act.").
Accord BROWN & BROWN, supra note 21, § 5.9 ("An often-repeated maxim is that the
statute is to be read as a whole.") .
35
BROWN & BROWN,
36
Id .
supra note 21, § 5.9.
- 1 3-
Commission Act that the General Assembly enacted to aid the promotion and
development of river-related, industrial-type commerce :
The purpose of this Act is to create a state Commission to
aid in the promotion and development of river-related
industry, agriculture, and commerce in Kentucky; to aid in
the promotion and development of local port authorities as
authorized by KRS 65.510 to 65.659; to aid in the promotion
and development of industrial districts, parks, and sites for
accommodating industrial complexes that utilize the rivers
and river-related resources ; to analyze, plan, and aid in
systematically developing river-related resources by the
development of services and facilities; to promote the
development of industrial parks and terminal facilities for
manufacturing and distribution industries for attracting and
serving private and public enterprises that are directly or
indirectly river-oriented ; to promote the exportation of
Kentucky made products in foreign commerce, especially as
related to the utilization of the navigable waterways ; and to
establish the powers necessary or appropriate to carry out
and effectuate the purposes of this Act .37
Thus, when construed narrowly and in light of the whole act, KRS 139 .483's tax
exemption was intended by the legislature to reduce sales and use taxes upon
industrial-type commercial vessels, etc . , towboats, and vessels that principally convey
persons for hire, e the Belle of Louisville and the Delta Queen, which were
.g_,
illustrative examples used in Barnes . As such, the exemption has no application to
recreational vessels like Alligator Dock's houseboats . This construction of the
exemption is further supported by context in the exemption's use of the phrase "supplies
consumed by crew members aboard such ship and vessels[ .]" Rental houseboats do
not have crew members as such, but towboats and vessels such as the Belle of
Louisville and Delta Queen do have crews.
37
1966 Ky. Acts ch. 64, § 2 .
- 1 4-
Alligator Dock attempts to attack the constitutionality of the exemption, and, in so
doing, essentially adopts as its argument language from Barnes to the effect that "if the
[exemption] is applied so as to exclude from taxation boats or vessels such as the Belle
of Louisville or the Delta Queen, but not other vessels, the [exemption] is
unconstitutional because it results in discrimination and unjust treatment of a particular
taxpayer. ,38 Because Alligator Dock failed to serve notice on the Attorney General as
required by KRS 418 .075(2), however, the constitutionality of the exemption is not
properly before this Court.39 Because of the importance of the issue, however, we will
briefly address it. We disagree with Alligator Dock's suggestion that the interpretation of
the exemption we adopt would render the statute unconstitutional .
Because no fundamental right is at stake and no "suspect class" is implicated,
the exemption is "analyzed for equal protection purposes only to determine if there is a
`rational basis' for the classification .,,40 'Under the rational basis test, a classification
must be upheld against an equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification .,,41 The
38
Barnes , 575 S .W .2d at 172.
39 KRS 418.075(2) ("In any appeal to the Kentucky Court of Appeals or Supreme
Court or the federal appellate courts in any forum which involves the constitutional
validity of a statute, the Attorney General shall, before the filing of the appellant's brief,
be served with a copy of the pleading, paper, or other documents which initiate the
appeal in the appellate forum. This notice shall specify the challenged statute and the
nature of the alleged constitutional defect ."). See also Preston v. Johnson County
Fiscal Court , Ky., 27 S .W .3d 790, 795-98 (2000) (Keller, J . concurring) .
40
Preston v. Johnson County Fiscal Court, Ky., 27 S .W.3d 790, 795 (2000)
(citing General Motors Corp. v. Tracy, 519 U .S . 278, 311, 117 S.Ct. 811, 830, 136
L.Ed.2d 761 (1997)).
41
Commonwealth v. Howard , Ky ., 969 S .W.2d 700, 703 (1998). Accord F.C.C.
v. Beach Communications, Inc. , 508 U .S . 307, 313, 113 S .Ct. 2096, 2101, 124 L .Ed .2d
211 (1993) ("In areas of social and economic policy, a statutory classification that
- 1 5-
Revenue Cabinet offers several bases to justify a tax exemption for transactions relating
to industrial-type commercial vessels and vessels conveying persons for hire, but not
vessels used for pleasure or recreational purposes . The Revenue Cabinet asserts that
"[t]he General Assembly could reasonably have viewed houseboats and other craft
used for pleasure or recreational purposes and ships and vessels used principally in the
transportation of property or conveyance of persons for hire as playing different roles in
the economy and operating in different competitive environments or markets and thus
meriting different tax treatment ." It points out that, since the use of vessels for pleasure
is usually seasonal, vessels used principally in the transportation of property or
conveyance of persons for hire could have been reasonably viewed by the legislature
as creating more-and-better-paying jobs than recreational vessels . We find this to be a
legitimate basis for the distinction, and thus conclude that the exemption is
constitutional .
For the foregoing reasons, we hold that the KRS 139.483 exemption does not
apply to Alligator Dock's sale of gasoline for use in the houseboats it rents .
B . 2001-SC-0439-DG
In this case, the Docks make no claim that the administrative remedies available
to them were inadequate ; to the contrary, they assert a right to seek direct declaratory
and injunctive relief regardless of the administrative remedies available to them . In both
neither proceeds along suspect lines nor infringes fundamental constitutional rights
must be upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification .") .
42
Beach Communications . Inc. , 508 U.S . at 313-14, 113 S .Ct. at 2101, 124
L .Ed .2d at 221 (1993) ("Where there are `plausible reasons' for Congress' action, `our
inquiry is at an end ."'), citing United States Railroad Retirement Bd . v. Fritz, 449 U .S .
166, 179, 101 S .Ct. 453, 461, 66 L.Ed .2d 368, 378 (1980).
- 1 6-
the circuit court and the Court of Appeals, the Revenue Cabinet maintained that the
Docks were required to exhaust their administrative remedies prior to seeking judicial
relief. The circuit court agreed with the Revenue Cabinet and dismissed the Docks'
declaratory judgment action, stating that "resort to the administrative process would not
be futile, and such relief would not be inadequate ." The Court of Appeals, however,
citing Gray v. R.J . Reynolds Tobacco Co. ,43 Harrison's Sanitarium, Inc. v.
Commonwealth, Dept. of Health , 44 and Franklin v. Natural Resources and
Environmental Protection Cabinet,45 held that a party is not required to exhaust
administrative remedies prior to seeking judicial relief when "there is no factual dispute
and a party wishes only to ascertain the validity or applicability of a statute or
regulation ." Accordingly, the Court of Appeals remanded the action to the circuit court
for further proceedings .
.
The Revenue Cabinet correctly observes that the cases cited by the Court of
Appeals do not support its holding and further asserts that "[t]he exception to the
exhaustion [of administrative remedies] rule crafted by the Court of Appeals in its
opinion below undermines and frustrates the important policies and purposes served by
the exhaustion rule." As such, the Revenue Cabinet contends "that the administrative
remedy must amount to an exercise in futility in order for that remedy to be disregarded
and direct judicial relief allowed instead," and submits that, because the Docks had an
adequate administrative remedy available to them, they were required to pursue it. We
agree.
43
200 Ky. 47, 252 S .W. 134 (1923) .
44
Ky ., 417 S .W.2d 137 (1967).
45
Ky ., 799 S .W.2d 1 (1990).
- 1 7-
The Revenue Cabinet is correct to challenge the authorities relied upon by the
Court of Appeals. First, R.J. Reynolds Tobacco does not support the rule enunciated by
the Court of Appeals in this case; instead, the R .J . Reynolds Court upheld an injunction
issued by the circuit court enjoining the collection of an illegal tax46 because of an
inadequate remedy at law. At that time, the "plaintiff could not recover the taxes from
the county after collection by it, [and] the remedy by equitable action was clearly open to
it . . .
."48
Similarly, Harrison's Sanitarium is distinguishable from the present case, and
in fact, supports the Revenue Cabinet's position . Even though Harrison's Sanitarium
contains language indicating that the rule set forth by the Court of Appeals in the case
sub iudice had been adopted previously by our predecessor court, in Harrison' s
46
An "illegal tax," also termed an "erroneous tax," is "[a] tax levied without
statutory authority," "[a] tax on property not subject to taxation," or "[a] tax levied by an
officer who lacks authority to levy the tax." BLACK'S LAw DICTIONARY 1469 (7t" ed. 1999) .
Thus, here, if the houseboat rentals and gasoline sales are exempt under KRS 139 .483,
the Docks are correct that the taxes that the Revenue Cabinet seeks to collect from
them are illegal since the taxes are "on property not subject to taxation ."
47
R.J . Reynolds Tobacco , 252 S.W. at 136 .
48
Id . at 136 .
49 We would note, however, that the cases cited in Harrison's Sanitarium for the
rule that "a party may have direct judicial relief without exhaustion of administrative
remedies when there are no disputed factual questions to be resolved and the issue is
confined to the validity or applicability of a statute or ordinance[,]" Harrison's Sanitarium ,
417 S .W.2d at 138, are of doubtful support for such a rule. For example, in Goodwin v.
City of Louisville , 309 Ky. 11, 215 S .W .2d 557 (1948), the first of three cases cited in
support of the rule, the Court stated that "direct judicial relief is held available without
exhaustion of administrative remedies where the statute is charged to be void on its
face, or where the complaint raises an issue of iurisdiction as a mere legal question, not
dependent upon disputed facts, so that an administrative denial of the relief sought
would be clearly arbitrary[,]" and then ruled that "[t]he concept of the term jurisdiction
embraces action, or contemplated action, by the body without power and in the given
case, it is necessary for the judiciary to restrain the agency in order to prevent
irreparable injury ." _Id . at 559 (emphasis added). Thus, Goodwin did not allow direct
judicial relief merely because the issue presented was "the validity or applicability of a
statute" and "there are no disputed factual questions" ; instead, it required that either "the
-18-
Sanitarium the Court again allowed direct judicial relief because of an inadequate
remedy at law .5° And, in Franklin , unlike the case at bar, both the validity and
constitutionality of a regulation was at issue . It was charged (1) that the regulation
violated "the statutes by which the regulation purports to have been enacted
,,51
and was
thus void ; (2) that the regulation was also void because it was more stringent than
preemptive federal law, and (3) that the regulation was unconstitutional, in violation of
statute is charged to be void on its face," or that "an issue of jurisdiction as a mere legal
question, not dependent upon disputed facts" is presented . Goodwin, accordingly,
recognized the appropriateness of the statutory administrative appeal process if the trial
court should determine that the administrative board possessed jurisdiction . _Id . at 561 .
Here, the validity of KRS 139 .483 was not placed at issue by Alligator Dock, and
jurisdiction of the administrative board was not questioned . In Louisville & Jefferson
County Planning & Zoning Com'n v. Stoker, Ky., 259 S.W.2d 443 (1953), the second
case cited in Harrison's Sanitarium , the Court restated the ruling in Goodwin and, after
noting that the case before it involved only a "pure question of law," pointed out that
administrative remedies would be futile, stating "[t]here would have been no point in
taking an appeal to the board of adjustment and appeals, because that board is not
designed as a judicial body to pass on legal questions." _Id . at 446 . Accordingly,
Louisville & Jefferson County Planning & Zoning Com'n is plainly not carte blanche
authority for allowing direct judicial relief regardless of whether an adequate remedy at
law may exist. Kentucky Bd . of Hairdressers and Cosmetologists v. Stevens , Ky., 393
S .W .2d 886 (1965), is the third and final case cited in Harrison's Sanitarium for the
proposition that Kentucky courts allow direct judicial relief without exhaustion of
administrative remedies when there are no disputed factual questions to be resolved
and the issue is confined to the validity or applicability of a statute. It too restated the
rule in Goodwin and held that because "the Board had jurisdiction, and . . . its order was
not void[,] [t]he only process for attacking the Board's order . . . was by the
administrative appeal provided" by statute. _Id . at 888 . Thus, like the other two cases
cited in Harrison's Sanitarium , Kentucky Bd . of Hairdressers and Cosmetologists
requires a party to exhaust administrative remedies except when the administrative
order is charged to be void or the complaint raises "an issue of jurisdiction as a mere
legal question, not dependent upon disputed facts."
50 Harrison's Sanitarium , 417 S .W .2d at 139 ("They have no way of initiating or
precipitating a challenge except by a proceeding in court. We hold the requirement of
exhaustion to be inapplicable .").
51
Franklin , 799 S .W.2d at 3 .
52
Id.
- 1 9-
both the United States and Kentucky constitutions . 53 As a result, an administrative
proceeding would be an exercise in futility "because an administrative agency cannot
decide constitutional issues[,] "54 and therefore, no adequate remedy existed at law. For
these reasons, we agree with the Revenue Cabinet that the cases cited by the Court of
Appeals fail to support its conclusion that a party may seek direct judicial relief without
first exhausting its administrative remedies when "there is no factual dispute and a
party wishes only to ascertain the validity or applicability of a statute or regulation ."
Instead, the cases support the conclusion that a party must demonstrate that it has an
inadequate administrative remedy before it may obtain direct judicial relief without
exhausting the available administrative remedies.
The Docks, however, seize upon language in R.J . Reynolds Tobacco and argue
that an "illegal tax," 55 alone, is a sufficient ground to justify direct judicial relief. We
concede that R.J. Reynolds Tobacco contains language that indicates an illegal tax,
alone, is sufficient, but observe that, in doing so, the Court relied upon two cases - C
of Lancaster v. Pope ,56 which is also cited by the Docks for its argument, and Negley v.
Henderson Bridqe Co . 57 - that do not support that contention . City of Lancaster v. Pope
states "that the illegality of a tax is regarded as a sufficient reason for enjoining its
collection [.],,58 However, it is clear that the injunction was upheld because the court
53
Id . at 3-4 .
54
Commonwealth v. DLX, Inc., Ky., 42 S .W .3d 624, 626 (2001).
55
See supra , note 46, for definition of "illegal tax."
56
156 Ky. 1, 160 S .W . 509 (1913).
57
107 Ky. 414, 54 S.W. 171 (1899) .
58 Pope , 160 S .W . at 511 .
- 20-
found that "the remedy at law [was] inadequate . "59 In fact, City of Lancaster v. Pope
relied upon Bank of Kentucky v. Stone , in which the Court stated :
It is well settled that in the federal courts an action in equity
will not lie to restrain the collection of a tax on the sole
ground that it is illegal and void, and independently of every
other consideration . It must appear from the special
circumstances averred that there is no adequate remedy at
law, and that there is some recognized ground for equity
jurisdiction, such as that the enforcement of the tax would
lead to a multiplicity of suits or produce irreparable injury .
And, in Negley v. Henderson Bridge Co., the Court also relied upon the
inadequacy of a remedy at law in allowing direct judicial relief: "[T]he right to have an
injunction to restrain the collection of an illegal and void tax has long been recognized in
this state, upon the ground of the inadequacy of the remedies at law. ,62 We, therefore,
disagree with the Docks' contention that an illegal tax, alone, is sufficient to permit direct
judicial relief; an adequate remedy at law must not be available . We would add,
however, that inasmuch as we have determined in 2001-SC-0434-DG that the Revenue
Cabinet is entitled to collect tax on the houseboat rentals and gasoline sales, the Docks'
claim that the Revenue Cabinet was seeking to collect an illegal tax is without merit.
Notwithstanding the Docks' failure to charge that KRS 139 .483 was
unconstitutional, the Docks assert that to construe the statute as urged by the Revenue
59 _Id . ("[W]here the remedy by action to recover taxes lies only where they have
been paid under duress of a restraint, as in Kentucky, and the officers could avoid such
remedy by bringing an action at law instead of distraining, injunction will lie . In such
cases the remedy at law is inadequate . It is upon this theory, no doubt, that it has long
been recognized in Kentucky . . . that the illegality of a tax is regarded as a sufficient
reason for enjoining its collection . . . ." (citation omitted) .
60
88 F . 383 (C.C .D . Ky . 1898).
61
Id . at 390 (citations omitted ; emphasis added) .
62
Negley, 54 S .W . at 171 (emphasis added) .
-21-
Cabinet would make it unconstitutional, and therefore, the Docks argue that they are not
required to exhaust administrative remedies. Although we agree that, generally, a party
may not be required to exhaust administrative remedies if the constitutionality of a
statute is the issue, 63 we disagree with the Docks' contention . We recently addressed
this issue in Commonwealth v. DLX, Inc. , wherein we stated :
Exhaustion of administrative remedies is not necessary
when attacking the constitutionality of a statute or a
regulation as void on its face. This is because an
administrative agency cannot decide constitutional issues.
Thus, to raise the facial constitutional validity of a statute or
regulation at the administrative level would be an exercise in
futility . This exception does not apply in the case at bar,
however, because DLX has not challenged the facial validity
of the surface mining statutes and regulations . Rather, as its
complaint shows, DLX's argument is that the Cabinet's
application of the statutes and regulations resulted in an
unconstitutional taking of its property .
When an administrative agency applies a statute
unconstitutionally, it acts beyond the bounds of the
constitution, rather than passing on a constitutional question .
In other words, until a statute has been applied, there can be
no unconstitutional application . This is the basis for the rule
that one must first show injury as the result of a statutory
application, before that application may be attacked as
unconstitutional . Thus, exhaustion of administrative
remedies is not futile to an as-applied challenge to a statute .
Quite the contrary, it is the administrative action which
determines the extent, if any, of the constitutional injury .
Usually, a party is required to exhaust available administrative remedies before
seeking judicial relief.66 "Exhaustion is generally required as a matter of preventing
63
DLX, Inc. , 42 S .W .3d at 626 (citing Goodwin , 215 S .W .2d at 559) .
64 Ky., 42 S.W .3d 624 (2001).
65
Id . at 626 .
_Id . at 625 ("As a general rule, exhaustion of administrative remedies is a
jurisdictional prerequisite to seeking judicial relief.") ; Accord 2 Ann. JUR . 2D Administrative
Law § 505 (1994) ("Where relief is available from an administrative agency, the plaintiff
-2266
premature interference with agency processes, so that the agency may: (1) function
efficiently and have an opportunity to correct its own errors; (2) afford the parties and
the courts the benefit of its experience and expertise without the threat of litigious
interruption ; and (3) compile a record which is adequate for judicial review. ,67 "In
addition, an agency has an interest in discouraging frequent and deliberate flouting of
the administrative process . ,68 "[T]he exhaustion doctrine does not preclude, but rather
defers, judicial review until after the expert administrative body has built a factual record
and rendered a final decision .,,69 "By honoring the exhaustion doctrine, courts avoid
interfering with the administrative process, and the initial reviewing court benefits from
the specialized knowledge of the agency. ,70 With increasing case loads and demands
upon the courts, it is important to note that "[t]he rule requiring exhaustion also
promotes judicial economy by resolving issues within the agency, eliminating the
unnecessary intervention of courts ."7'
In 1994, the legislature enacted a comprehensive act relating to administrative
hearings, which was codified as KRS Chapter 13B, that brought together in one place
"the varying grounds for review of an administrative decision already recognized in
is ordinarily required to pursue that avenue of redress before proceeding to the
courts .").
67 2 Ann. JUR . 2D Administrative Law § 505 (1994).
68
Id .
69
Id .
70
Id .
71
Id .
72 1994 Ky. Acts ch. 382 .
- 2 3-
Kentucky jurisprudence, ,73 and provided that "[a) party may file a petition for judicial
review only after the party has exhausted all administrative remedies available within
the agency whose action is being challenged, and within any other agency authorized to
exercise administrative review . ,74 And, the Act specifically authorized a reviewing circuit
court to grant a stay of a final order pending judicial review. Thus, a party adversely
affected by a final order of an administrative agency may seek judicial review and, if
necessary, request a stay of the order during the judicial review .
Recent Kentucky appellate courts' decisions have steadfastly required the
exhaustion of administrative remedies prior to allowing a party to seek direct judicial
relief unless otherwise authorized by statute .76 In Kentucky Labor Cabinet v . Graham,"
we rejected a party's contention that it was not required to exhaust administrative
remedies, and in so doing, we noted that the party neither questioned the
constitutionality of a statute nor showed that it would be an exercise in futility to proceed
through the administrative process . And only a few days before, in Commonwealth v.
DLX, Inc . , after remarking that a party need not exhaust administrative remedies when
attacking the constitutionality of a statute or a regulation as void on its face, this Court
73
Bob Hook Chevrolet Isuzu, Inc . v. Commonwealth Transp . Cabinet , Ky., 983
S .W.2d 488, 490 (1998).
74
KRS 13B.140 .(2) (emphasis added) .
75
KRS 13B .140(4)(c) .
76
Commonwealth ex rel. Chandler v . Anthem Ins . Companies, Inc. , Ky. App ., 8
S .W .3d 48, 55 (1999) (holding that KRS 367.190(3) authorized the Attorney General to
seek direct judicial relief and enjoin unfair trade practices without exhausting
administrative remedies, but commenting that except for the statute, direct judicial relief
would be inappropriate .) .
" Ky., 43 S .W .3d 247 (2001) .
78
Ky., 42 S .W .3d 624 (2001).
- 24-
held that a party must exhaust administrative remedies prior to seeking judicial review of
an as-applied constitutional challenge .79 As a result, we held "that DLX's failure to
exhaust its administrative remedies by failing to appeal the Secretary's order, deprived
the Franklin Circuit Court of subject-matter jurisdiction to hear DLX's takings claim ."$°
Previously, in Revenue Cabinet, Commonwealth of Kentucky v Gillig , 81 a case
challenging the constitutionality of the Cabinet's method of assessing the value of
unmined coal, this Court first "note[d] that the appellees in this case and any other
taxpayers who believed their valuations were in excess of fair cash value, had the right
to meet with the Cabinet to discuss: (1) the assessment; (2) the right to formally protest
the assessment as provided by KRS 131 .110; and (3) the right to take an appeal from
any adverse final determination by the Cabinet to the Kentucky Board of Tax Appeals
as provided by KRS 131 .340 ." Then, this Court quoted approvingly Parrent v. Fannin ,82
where it was stated :
[T]he claim that their new assessments are in excess of
the fair cash value of their real property . . . is a peculiar grist
for the mill of the county board of assessment appeals . . . .
The respondents should not have been permitted to avoid
the well established requirement that a taxpayer must
exhaust his administrative remedies before resorting to the
courts .83
79
Id . at 626 .
$° Id . at 627.
81
Ky., 957 S .W .2d 206, 211 (1997).
82
Ky., 616 S.W.2d 501, 503 (1981) .
83 Id . at 503 (citations omitted) . Accord Tharp v. Louisville & N. R . Co . , Ky., 307
Ky. 322, 210 S.W.2d 954, 955 (1948) ("It is, of course, an ancient and settled principle
that an equity court will not exert its powers where the litigant has an adequate remedy
at law.") .
- 25-
Accordingly, the Gilli Court stated that "because appellees had an adequate
administrative remedy, [the] case should have first been decided by the Kentucky Board
of Tax Appeals, not the circuit court[,] "84 and held that "[c]onsequently, the respondents
should not have been permitted to pursue their cause in the courts before exhausting
their administrative remedies . ,85
In the case sub iudice, although the facts were undisputed, the Docks did not
raise the issue of the facial validity or constitutionality of KRS 139.483, and an adequate
administrative remedy was available . Thus, the Court of Appeals erred in reversing the
Franklin Circuit Court judgment dismissing this action.
IV. CONCLUSION
For the above reasons, in 2001-SC-0434-DG, we affirm the Court of Appeals,
and, in 2001-SC-0439-DG, 86 we reverse the Court of Appeals and reinstate the Franklin
Circuit Court's judgment dismissing the Docks' complaints for lack of jurisdiction .
All concur.
84
Gillia , 957 S.W .2d at 211 .
85 Parrent , 616 S .W .2d at 504 .
86 We would note, however, that our decision in 2001-SC-0434-DG is also
dispositive of the underlying substantive issue of sales and use tax law in 2001-SC0439-DG, i.e. , whether State Dock's houseboat rentals and sales of gasoline consumed
in the houseboats' operation are exempt from sales and use taxes under KRS 139.483 .
- 26-
COUNSEL FOR APPELLANT, POPPLEWELL'S
ALLIGATOR DOCK NO. 1, INC . :
Leslie Rosenbaum
Rosenbaum & Rosenbaum
201 West Short Street
Suite 300
Lexington, Kentucky 40507-1289
COUNSEL FOR APPELLEE, REVENUE CABINET,
COMMONWEALTH OF KENTUCKY:
Douglas M . Dowell
Legal Service Division
Revenue Cabinet
PO Box 423
Frankfort, Kentucky 40602
COUNSEL FOR APPELLANT, REVENUE CABINET,
COMMONWEALTH OF KENTUCKY :
Douglas M. Dowell
Legal Service Division
Revenue Cabinet
PO Box 423
Frankfort, Kentucky 40602
COUNSEL FOR APPELLEES, STATE DOCK, INC. ; and
POPPLEWELL'S ALLIGATOR DOCK NO. 1, INC . : :
Leslie Rosenbaum
Rosenbaum & Rosenbaum
201 West Short Street
Suite 300
Lexington, Kentucky 40507-1289
,Suyrrmr (~vurf of irufurkV
2001-SC-0434-DG
POPPLEWELL'S ALLIGATOR DOCK NO.
1, INC .
V.
ON REVIEW FROM COURT OF APPEALS
NO. 1999-CA-1800-MR
FRANKLIN CIRCUIT COURT NO . 98-CI-1578
REVENUE CABINET, COMMONWEALTH
OF KENTUCKY
AND
APPELLEE
2001-SC-0439-DG
REVENUE CABINET, COMMONWEALTH
OF KENTUCKY
V.
APPELLANT
APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO . 1999-CA-1798-MR
FRANKLIN CIRCUIT COURT NO. 97-CI-1543
STATE DOCK, INC. ; and
POPPLEWELL'S ALLIGATOR DOCK NO .
1, INC.
APPELLEES
ORDER
On the Court's own motion, the Opinion of the Court by Justice Keller rendered
April 22, 2004 shall be modified on page 26, footnotes 84 and 85 . Said modification
does not affect the holding.
Entered : June 3, 2004.
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