Harrah's Bossier City Investment, L.L.C. (Harrah's), Louisiana Limited Liability Company VS Cynthia Bridges, Secretary of Department of Revenue and Louisiana Department of Revenue (2008CA1727 Consolidated With 2008CA1728 2008CA1729 2008CA1730 2008CA1731 2008CA1732 2008CA1733 2008CA1734 2008CA1735 200)
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1 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 1727 CONSOLIDATED WITH tJ 2008 CA 1728 THROUGH 2008 CA 1756 2008 CA 1758 AND HARRAH S BOSSIER CITY INVESTMENT COMPANY L L C VERSUS CYNTHIA BRIDGES IN HER CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF REVENUE AND THE LOUISIANA DEPARTMENT OF REVENUE CONSOLIDATED WITH 2008 CA 1757 CYNTHIA BRIDGES SECRETARY OF THE DEPARTMENT OF REVENUE FOR THE STATE OF LOUISIANA VERSUS WILHITE ELECTRIC COMPANY INC Judgment 9 L 9 2 p W r lg 8 l 1 9 7 Ct 4 t lAcA fOlk wUt wf4 tAt t Rendered J tlO cJ Uo rf JUL 2 7 2009 w P l i 1 @ Appeal from the 19th Judicial District Court In and For the Parish of East Baton Rouge On Trial Court Numbers 537 225 538 117 539 022 539 912 540 794 541 695 541 696 403 543 544 186 544 282 544 511 546 327 547 102 548 272 550 038 410 549 551 030 552 003 553 231 554 268 555 331 556 320 557 303 558 132 560 331 561 048 561 864 562 942 563 823 564 182 and 411 559 565 035 The Honorable Kay Bates Judge Presiding Linda S Akchin Counsel for Plaintiff Appellant Christopher J Dicharry Jenny N Phillips Baton Rouge LA Harrah s Bossier Robert R Rainer Counsel for Defendants Drew M Talbot Baton Rouge LA Company City Investment LLC Cynthia Bridges Appellees and Louisiana Dept of Revenue Brian A Cowan Counsel for Amicus Curiae Malcolm S Murchison Churchill Downs Louisiana Shreveport LA Horseracing Company L L C db a F air Grounds Race Course and David F Waguespack New Orleans LA BEFORE GUIDRY PETTIGREW McDONALD HUGHES AND WELCH JJ 2 HUGHES J This is racing offtrack betting claim for refund of statutory basis for taxes an follow use judgment ruling taxes for slot machine casino alternate RS facility dismissing taxing regime 47 302 that holding corporate to that the taxpayer s For the R its horse the taxpayer s that had exemption was an and Q a related purchases under protest and paid suspended by LSA been summary a liable for sales and was taxpayer from appeal an reasons that and remand we reverse FACTS AND PROCEDURAL HISTORY On October 17 Harrah LL C 2005 the first of filed s consolidated for trial Harrah s Bossier thirty Investment City lawsuits one in her against Cynthia Bridges Secretary of the Louisiana Department of Revenue Department of Revenue referred to the refund of sales and paid during its the horse course of use taxes herein making improvements to racing offtrack betting facility purchases made of were I add subsequently capacity as LDR Harrah s seeking alleged that slot machine casino a in Bossier City 1 A thirty was heating and air conditioning systems security determined that Harrah s had second lawsuit was filed by LDR 26th Judicial District Court Bossier Parish failed to pay sales defendant s Downs Harrah s the 26th J D C non conveniens s purchases one alleged no ofHarrah sales and s The audit tax on the electrical contractors in the in this suit that the defendant contractor of materials made for use in the performance of the s to recover was in January 2008 transferring the matter to the 19th J D C for reasons offorum Thereafter the transferred case was consolidated for trial with the other thirty one cases 2 use audit2 included in an amount previously paid under protest by also reiterated issues raised in the other lawsuits A judgment was rendered by sought Harrah s Harrah on with Harrah against LDR paid an in the real property construction of Harrah s Louisiana intervened in this suit and filed a cross claim against LDR asserting that the contract amount LDR tax to considerable systems gaming devices and other operating equipment During LDR it the building materials fixtures flooring appliances artwork computer systems by as and the Louisiana collectively under protest Company period was from January 1 2003 through December 31 3 2005 purchase lease andor rental of this property and demand Harrah s for the payment of these allegedly delinquent Harrah s contention that pursuant LSA R S 4 168 its facility these were not taxes under subject protest to to sales andor use was 2006 the denying reconventional demand and allegations the asserting of the date of the additional filing entitling it LDR filed 47 1512 2007 taxes collected4 taxes sum an of filed and paid under protest by Harrah s together with did not time of pass tax the suits necessitated the any of hiring on to private LSA R S November 2 R S entitled not 4 168 title the to exemption construction materials to to Harrah s at the purchase by the General Contractor and the eighty plus amount If title Harrah to language The total was free from the various vendors subcontractors pass s to the said construction materials did the agency relationship created by the of the exemption certificates was effective solely for Harrah s s seeks to recover from LDR In its reconventional demand LDR in its thirty one suits is 3 347 592 61 alleged Harrah s is not entitled to any sales and use tax exemption with respect to the material supplies and equipment purchased to enable sic the General Contractor and the eighty plus subcontractors for use and consumption in the construction of the new slot machine casino Harrah rentals and s is also not entitled to a tax it exemption for the purchases to the construction by individually with respect equipping and operating the new slot machine casino uses as LDR thereafterfurther represented amended reconventional demand Harrah a 3 222 394 72 award of attorney fees pursuant an provided by LSA 4 of the June stating Since 3 2007 in the total and interest an answer on of the reconventional demand litigating to to pay October 20 paid under protest amounts in reconvention that counsel of amount on validity requesting judgment against Harrah s being the total compelled to 3 In response to these consolidated suits LDR filed 6 Despite taxes purchases related it taxes made upon was leases furnishing Harrah s is not entitled to a tax exemption for the purchases leases rentals and uses by it individually with respect to purchases of articles for the of the facility that serve patrons of both the race track and the common areas slot machine casino such as restrooms and restaurants 4 purposes of sale and transfer of title but not for purposes of tax and such exemption and were not LDR also filed a purchases exempt from motion for partial the trial court that LSA R S period by LSA R S 47 302 On November 15 action to LDR as for which LDR s as a was reconventional demand a valid mutuel horse entitled ruling by suspended during the audit seeking R 2007 Harrah s filed cause motion for summary pari Q and a an exception of of no cause asserting that because the of action for judgment in the for statutory attorney fees thereon taxes or cross summary judgment 4 168 had been s LSA R S 4 168 to pursuant Harrah to taxes sought judgment had actually been paid albeit under protest LDR failed to state paid tax fully taxable were judgment on racing facility and exclusion from sales and to Further Harrah November 21 offtrack an use 2007 tax as of the amount s filed asserting a that wagering facility it LSA R S provided by 4 168 and 4 227 Harrah also s November 26 2007 filed asserting for fiscal years acknowledged sales LDR on paid interest Tax stating taxes imposed remove on d the licensed by amounting 2007 Harrah s the additional 4 227 had been was liability race for tracks and wagering facilities November 28 owed that LDR had through 2006 2007 in which it special on Exemption Budget each supplemental and amended reconventional demand allegedly been a that LSA R S 4 168 and 4 227 licensed offtrack A 1997 1996 in lieu of the tax amending petition detrimental reliance and previously taken the position and published year and supplemental a to on taxes seeking was the recovery of additional taxable transactions for which allegedly 659 118 10 re filed owed were 1 asserting that 420 052 LSA R S taxes no tax 13 by had including 4 168 and suspended by the legislature during the audit period making 5 the transactions at issue taxable and its entitlement urging re to statutory attorney fees On 29 February 2008 Harrah s filed an reconventional demand amended reconventional demand and and amended reconventional demand owed use taxes were not on 4 168 and 4 227 that these applied its the to contractor On lease procurement s filed judgment more was the audit granted partial Harrah s petitions acting as agents and court than ninety days not exception sales summary consider Harrah judgment pursuant reason goods andor services by to The its behalf on a tax court of peremptory exception of amended reconventional reconventional s on judgment The s citing demand which ruled that LSA prescription that to 2008 were suspended LSA R S 47 302 Q in favor of LDR and dismissed cases and reserved to LDR the judgment further stated that Harrah s was not reached by the court claims asserted in its first judgment LSA C C P June 12 exemptions in all of the consolidated amending petition ofLSA R S after the main demand the trial signed by partial summary judgment did account and amended reconventional demand claims asserted in reconvention the of period by the Legislature pursuant and R motion for etc reconventional demand were supplemental that sales and essence on s suspended and that the statutes 1067 and the fact that LDR art 4 168 and 4 227 during issue 2008 Harrah s also filed overruled Harrah s peremptory RS at statutes were not supplemental pleadings were A 29 LDR to as and LSA C C P the transactions and subcontractors February prescription demand purchase in maintaining LDR to answer art for delay because of economic 6 was certified 1915 B reasons the as a supplemental final court and that appealable finding and time constraints no just Harrah s has the specifies and appealed following assignments of error The trial l i LDR judgment because of sales exemptions tax erred in court not been LSA R S 4 168 and 4 227 created iii exemptions the so to exemptions applied only failed establish to of sales suspension wagering The prescription as the were not as trial to purchases judgment and tax sales and iv ii tax tax LDR legislative of the mutuel and offtrack at s to exception of amended reconventional demand for additional issue were for the racetrack the slot machine provoked gaming area of its facility and the tax payments made and common areas of the the lawsuits for refund of those payments The trial court erred in was premature supplemented and to as failing to LDR court erred in that partial reconventional demand s well as expressly reserved to both parties The trial recognize to clearly and unequivocally the demands made therein 4 sales of overruling Harrah s in the subject of the LDR audit that or 3 erred court LDR under protest related facility pari to waived tax not 5 sales application statutes was facilities 2 taxes and suspension state uniform legislative suspension from sales legislative of the 4 2 motion for summary s answer exclusions exemption tax in its pled called and equal LDR affirmative defense of s had granting failing amended in judgment that the defenses raised thereto as and state as summary are to not are part of the judgment address Harrah s cross motion for summary judgment 5 Harrah points the remaining 2 s out that LSA RS 47 302 provides for only 2 LSA RS 47 321 of the 1 state s 4 is authorized as follows Harrah s argues that LSA RS 47 302 Q and LSA R S 51 1286 0 03 LSA RS 47 321 LSA RS 47 331 and LSA R S 51 1286 7 sales tax while LSA R S 47 331 0 97 R do not and apply to The trial court erred in 5 III that judgment of Harrah all related supplemental petition defenses thereto to failing to claims s in its raised detrimental reliance expressly reserved are clearly and unequivocally to both as amended well and parties state as are not and LDR s part of the judgment LAW AND ANALYSIS Summary Judgment Motion for The summary speedy disallowed construed judgment CP by LSA C to accomplish art 969 the procedure LSA C C P these ends shall be rendered in favor of the answers to depositions is entitled mover to no the just except those is favored and shall be art 2 966 A mover on genuine issue as a matter judgment to secure action and admissions interrogatories the affidavits if any show that there is and that designed determination of every inexpensive and is judgment procedure Summary if the file as to pleadings together with material fact LSA C C P of law art 966 B Appellate courts criteria that govern a judgment is appropriate review summary judgments de district 977 So 2d 880 882 Allen Exhibition Hall 377 In Rau 2007 1726 pp 3 4 v State v p 5 La 4 9103 2007 2555 Vankerkhove same La 2 26 08 reI Ernest N Morial New Orleans ex Authority 2002 1072 Boudreaux 8 1108 v under the consideration of whether summary court s Samaha novo p 5 842 So 2d 373 La 1 App Cir 993 So 2d 725 729 30 ruling evaluate the but instead on a weight to motion for summary judgment the judge s role is of the evidence or to determine whether there is 8 determine the truth of the a genuine not to matter issue of triable fact All doubts should be resolved in the A fact is material if it litigant s ultimate genuine issue is A or determines the reasonable persons could reach only one that issue and summary judgment is on 876 So 2d at or of the outcome conclusion there is on the issue for at one or more elements essential non p 1 proof remains with to absence of factual support an must produce or factual support sufficient satisfy his evidentiary burden of proof at to do so there is judgment will be granted no genuine issue LSA C C P art 2 provided motion for summary a in LSA C C P allegations or art denials of his otherwise provided above genuine issue for trial appropriate 967 Agricultural must set 984 So 2d 72 79 80 1 Cir 5 14 04 adverse party may forth facts specific so against him respond mere affidavits or as showing summary LSA C C P of Louisiana State by as the not rest on but his response If he does not Supervisors Finance an judgment is made and supported pleading shall be rendered also Board of App at the adverse party s claim action If the opponent of the motion fails When a to moving party of material fact and summary 966 C that there is out establish that he will be able trial need for trial moving party will not bear the burden of proof points trial and defense then the to no disagree if 765 66 However if the movant legal dispute 2004 0806 Id appropriate On motion for summary judgment the burden of the v recovery affects precludes which reasonable persons could as to one insures potentially success Hines favor s party movmg 876 So 2d 764 765 La 6 25 04 Garrett 2004 0806 p 1 a non art University that there is judgment if 967 B v See Louisiana Authority 2007 0107 p 9 La App 1 Cir 2 8 08 Cressionnie Intrepid v 879 So 2d 736 738 9 Inc 2003 1714 p 3 La it Because is whether materiality a particular in light of the substantive law 6 25 04 applicable Cressionnie Intrepid v 137 Dyess v v determines be seen only Hall 2003 American National 4 p 2003 1714 Inc can the case Richard 1 Cir 10 29 04 885 La La writ denied 2004 1858 886 So 2d 448 451 So 2d 592 to 2003 1971 Casualty Company and Property dispute is material fact in 874 So 2d 131 La 4 23 04 1488 p 5 that law substantive applicable the App 3 879 So 2d at p at 738 39 Applicable Taxing Provisions The resolution of this the state sales s applicable to tax horse racing upon the sale storage for use at or and offtrack The sales retail the use consumption or statute the the apparent conflict between and the 47 302 facilities betting provides tax statute consumption in this state and B taxing See LSA R S C a article of or rental within this and Various have been enacted both within the levy of for the of each item or statutes the distribution and the tangible personal property LSA R S 47 302 A services taxing article of on upon the lease tangible personal property each item turns LSA R S statute 4 168 and LSA R S 4 227 tax dispute state of upon all sales of exemptions to this and elsewhere in the statute Revised Statutes Harrah governing contends s horse statutory provIsIOns authorizing and racing and offtrack betting provide payment of sales LSA R S 4 168 that the 6 tax to which these facilities In exclusions Harrah particular s from the relies on states The license fees commissions and taxes imposed in this Part are in lieu of all other such licenses sales excise and 6 Section 168 is contained in Part I Amusements and Horse Racing Sports 10 of Chapter 4 Racing of Title 4 occupational other and political state to any or subdivision thereof LSA R S 4 227 on the taxes to 7 parish city which states wagering facility offtrack in this Part such licenses sales excise and Contrarily these are taxes to the state occupational or other political added LDR asserts that LSA R S 4 168 and LSA R S 4 227 from the sales R and paragraphs Q imposed upon in lieu of all other taxes municipality Emphasis subdivision thereof exemptions town parish city to any or or added Emphasis The license fees commissions and an town 8 imposed by LSA R S of LSA R S 47 302 have for the exemptions tax periods tax at issue 47 302 are and that suspended the effect of rendering Harrah s liable for sales tax draws Harrah s contends is and tax an a Offtrack Section 227 is contained in Part II 8 a an things which exclusion from sales tax liability are suspended of Wagering Chapter 4 under LSA R S provided Racing to race of Title 4 Sports provides in pertinent part Q Notwithstanding any other provision of law to the contrary including but not limited to any contrary provisions of this Chapter for the period July 1 2002 through June 30 2004 the exemotions to the tax levied pursuant to the provisions of this Section except for those exemptions provided by R S 39 467 k 1 B D 1 f 0 m s and t and G and 468 R S 47 305 A I 1 305 305 2 305 3 305 8 10 305 15 305 305 20 305 25 A 1 and 2 14 305 305 37 305 38 46 305 and 305 50 and R S 51 1787 shall be inapplicable inoperable and of no effect R 1 Notwithstanding any other provision of law to the contrary including but not limited to any contrary provisions of this Chapter for the period July 1 2004 through June 30 2009 the exemotions to the tax levied for those exemptions provided pursuant to the provisions of this Section except B D 1 t 0 k 1 m s S 39 467 and 468 RS 47 305 A 1 by R Louisiana Revised Statute 47 302 and and t 25 305 A 1 G and 305 1 2 305 2 305 37 51 1787 shall be inapplicable provided 305 8 305 38 46 305 inoperable 10 305 305 14 305 50 305 15 and 305 51 305 20 and RS and of no effect any other provision of law to the contrary including the exemption to any contrary provisions of this Chapter limited 305 A 2 and 305 25 A 3 shall be applicable operable for in RS 47 2 but not 305 3 Notwithstanding and effective from Emphasis July 1 2007 added 11 it transactional release from sales Harrah s maintains that the exclusions R Amusements and or only exemptions Thus since Q and class of persons which it contends is exemption liability 47 302 7 removal of a distinction between a 4 227 affected are not Harrah s 672 La on is demonstrated in its citation of Tarver 615 So 2d 423 App in which the issue 1993 was into the from sales state produced bona fide interstate exclusion from sales If this exemption or on the section whether LSA R S articles of tangible constituted Chapter 2 for the construed However from period personal property exemption an so as it could fall within the ambit of above which suspended all of the to 47 305 E or therein stated court were World manufactured in the state for export and commerce tax referred 1988 tax v writ denied 616 So 2d 4 Cir La providing immunity imported by that suspension position Inc Ship Supply 4 168 and LSA R S RS by LSA facilities wagering tracks and offtrack 1986 through July 31 this section to provide for an July we construe provide an the legislation exemptions in to 1 The difference can readily be seen by reference to the following from section 3 1 of Use Taxation by Bruce 1 Oreck Louisiana Sales exclusion rather than Two an exemption well construction established play exemptions A into come exclusions and rules of statutory when tax considering exemption is a which exempts from tax a transaction which would in the absence of the exemption otherwise be subject to tax That is there has been provision certain transaction which is clearly within the ambit and authority of the taxing statutes to tax On the other hand an a statutory decision exclusion relates not to tax to a a transaction which is not taxable because it falls outside the scope of the Transactions statute giving rise to a tax ab initio excluded from tax of the are statutes are those which defined as by the language beyond the reach of the tax The author goes on to say citing a wealth of authority that while exemptions from taxation are strictly construed against the taxpayer statutes imposing the tax of which exclusions are an integral part are construed liberally in favor of the taxpayers and against the taxing authority 12 an Tarver by World v Kerr McGee Corporation In contrast 6 28 96 refinery 426 cited with meaning of exemption Exxon v whether LSA R S 47 305 D approval 10 11 La adopted by l h was an 1 App Corporation this whether it constituted or La 95 2501 Corporation In State legislatively suspended been the on Exxon v 676 So 2d 783 considering at McNamara 2000 0770 pp v LDR relies in State court 615 So 2d 826 So 2d 1 7 1 Cir 6 22 01 App this Ship Supply Inc Cir court in exemption that had a method for valuing gas for tax calculation purposes stated Initially significant that in it conclusive l h is located in a is section Exclusions and whether deciding rather it is the effect of the n not exemptions from the tax a provision grants a tax the words and form used exemption A while La R S 47 305 D of Title 47 entitled However that note we exemption implies a provision are not dispositive which is determinative release from some burden duty or expressly Even if the word exemption is not obligation used an exemption is created if the effect of the provision is to grant an immunity from taxation As stated by the Supreme relieved property Court from the burden of taxation is exempt State Exxon v 95 2501 Corporation at pp 5 6 676 So 2d at 786 87 citations omitted Although the suggested by dispositive the cited parties no case as cases to directly research has revealed the on exemplify the differing interpretations taxing provisions issue to this they are not and our unambiguous and its application does not point has been cited at court none Statutory Interpretation When lead to further a law is clear and absurd consequences interpretation LSA C C art 9 the law shall be applied as written and may be made in search of the intent of the When the no legislature language of the law is susceptible of different 13 meanings it must interpreted be the purpose of the law their be as LSA C C having the meaning that best conforms 10 art The words ofa law Words of generally prevailing meaning and technical art given their technical meaning when the law involves LSA C C must be When the words of law a are a be whole LSA C C interpreted in reference as a be 12 art to Laws each other given terms must technical matter ambiguous their meaning sought by examining the context in which they occur and the the law must 11 art must to on the same LSA C C text subject 13 art of matter See also LSA R S 1 3 4 When interpreting It is lawmaker intended in the law was be to given provisions intended each lawmaker inserted idle law or useless meaningless The matter and a no be of the law presumed to interpretation to words or to be law is a placed on the or meaningless have enacted each law to on the be determined entirety and all other laws terms effect is presumed that the knowledge of all existing laws on the same provision in same by a subject question that of the law and with the obvious intent of enacting it Where it is possible in the some unnecessary not provision or superfluous language in the law provision construction should be the lawmaker in courts or meaning and intent of is consistent with the express the and that The lawmaker is consideration of the law in its sentence useful purpose that Conversely it will or give it the meaning the that every word provision with deliberation and with full subject should court serve some that it intended for any part redundant the presumed to such used were a of laws to to do adopt a so it is the duty of construction of the provision in question that harmonizes and reconciles it with other provisions A construction of a when interpretation a reasonable law that creates an can be 14 inconsistency should be avoided adopted that will not do violence to the plain words of the law and will carry When the discovering the of it or the true cause practical effect meaning the intention of the lawmaker dubious are of the law is to to provisions of act to be is law a only v Ransome 2001 2361 After careful consideration of the language of LSA 9 These Racing taxes imposed 4 Chapter other such licenses RS on clearly the horse Racing are state reasonable that renders prevail La App 5 6 Bunch v 1 Cir 1984 La 1 App Cir which ambiguity Title 4 in the Chapter or other et seq instead of means occupational the horse LSA R S 47 301 Sales Tax no 4 that the license fees commissions in lieu of municipality remove find 4 227 taxes to political the 10 all state or to subdivision These racing and offtrack wagering industry from the application of the general sales 9 law is racing and offtrack wagering industry by sales excise and provisions effectively 2 over one can pp matter we 4 168 and LSA R S statutes town parish city any 1360 a a 822 So 2d 746 752 6 21 02 Title 4 When spirit irreconcilable conflict an provision one and reason it to enact preferred Town of St Francisville 446 So 2d 1357 See also Ransome effectual way of consider the If there is nugatory most that which affords interpretations the entire or and the that induced the lawmaker part thereof ridiculous between the law a to two or more susceptible and of expressions out tax law Title 47 Chapter including its mandatory taxing by Churchhill Downs Louisiana Horseracing of the public b Company LLC da Fair Grounds Race Course citing the legislative declaration interest as expressed in LSA RS 4 141 and LSA RS 27 352 in promoting the continued policy economic viability of the horse racing industry particularly in light of the detrimental impact presented by other legalized wagering facilities such as the lottery riverboat gaming and land based casino gaming However because we find no ambiguity as to the meaning of LSA RS 4 168 and LSA R S 4 227 we find it unnecessary to examine legislative intent We 10 acknowledge the amicus curiae brief filed State ex reI Saint v City of instead of in place of in substitution for See also State v Escalade 150 La 118 So 30 31 La 1928 New Orleans is taken from the French on rehearing 638 91 So 135 La 1921 stating that i n lieu of language and means in place of or instead of and Black s Law Dictionary 791 7th ed 1999 In lieu of means 166 La 817 819 defining in lieu of as i nstead of or in place of 15 in exchange or return for provisions instead well as alternate an occupational taxes The of Title 47 argued by as and LSA R S 4 227 is 47 sales tax of these sales provisions tax of definitional 1 This the burden be called 14 Racing the 1 4 trackofftrack race hallmark tax of these substitute tax LSA R S a therefore the exemption an burden 13 Nor do statutes as merely exclude the payment of sales or 4 or of an taxing provisions for the Title relieved or precise description alternate excise Because the effect of LSA R S 4 168 for the determination of the exclusions holding also applies to which racing facilities burden 47 305 E Harrah s slot machine casino tax burden application we find the other statutory without the tax See LSA R S 47 301 interstate commerce was enacted Chapter 4 Racing Facility specifically to authorize See LSA R S 27 353 Racing are opened pursuant to LSA RS 27 351 Redevelopment and Gaming slot machine gaming at eligible live Economic See also LSA RS 33 9561 The license fees commissions and deductions from Title 4 sales 15 Control Act 12 an tax a 2 LDR relieve not the Louisiana Pari mutuel Live et seq horse a licenses substitute the Title 4 cannot exclusions replacement exclusion does done away with not exclusion term to provisions remains and is for Chapter 2 taxing provisions with Title from wagering facility taxpayer exclusory provisions substituting wholly within Title 4 Chapter contained taxing provisions exemption and exempting taxing regime replacement 4 Chapter its as racing proceeds addressed in Sections 161 161 2 162 authorized 1 163 to be levied by 1 166 166 2 166 166 3 166 5 166 6 166 7 167 169 216 and 218 13 persuaded by LDR s suggestion that the application of the term exemption to 2d So 409 La App 4 Cir writ LSA RS 4 168 found in Traigle v Fairgrounds Corp 288 2d 246 La 1974 So is dispositive of the issue currently before this court In refused 292 the tax collector was not claiming sales taxes on items that the defendant race track Traigle bought for its own use but only on those items that were sold on a retail basis to the patrons of the race track The Fourth Circuit ruled that LSA RS 4 168 did not provide an exemption to the defendant race track from a duty to collect sales tax on sales made to its patrons As to an occupational license tax sought to be collected the court found LSA RS 4 168 provided an The denomination of LSA RS 4 168 as an exemption in Traigle was merely exemption We are not dicta since classification of LSA RS 4 168 taxing regime suspended 14 See Associated So 2d 356 358 15 was at the time Kerr McGee not the an issue in the case was Hospital as an case exemption nor were an sales tax exclusion exemptions Services Inc v alternate legislatively rendered v State Department of Revenue and Taxation 588 La 1991 Corporation or an McNamara 2000 0770 at p 14 826 So 2d at 9 16 We reject like case LDR glove and that if it looks like a walks like duck it is a this case does an exclusion not that legislative decision not The grant of Tarver v as conclude it is The exclusion an not World duck It is because the duck we must or transaction a a quacks like an when to tax exclusion a sets tax exclusion the scope of taxation law see LSA R S because the rather the et any definitional not excused legislature has substituted one for another LSA R S 47 302 seq reject LDR facilities vis a vis the racing asserts that if a s an represents taxing a not Neither of these been sales a a See statute There is placed provision applicable tax to no outside sales tax exemption racing facilities from taxation but system of taxation LSA R S 4 161 16 assertion that the imposition racing facility or other than either 426 at Nor is there 47 301 302 legislature has We further 16 by issue in apart by legislative definition racing facilities have because at exemption concepts precisely fits the circumstances considered herein sales duck and transaction would otherwise be 615 So 2d Inc an exemption an taxable because it falls outside the Ship Supply a taxing scheme something grant of fits this exemption exactly fit the characteristics of either exemption taxable assertion that the definition of s of sales cannot legislative tax prove is treatment conditiona1 payment of the of LDR fees of another group oftaxpayers with as that presented herein in support of their argument that the taxing a scheme applicable to racetracks is an exemption that has been suspended by the legislature However we find the cited statute applicable to electric cooperatives to be distinguishable as the within the definition of language of the statute clearly brings the tax relief granted therein The LDR cites this court similar taxation scheme exemption The statute to LSA R S 12 425 as an example provides Each cooperative shall pay annually on or before the first day of July to the department of revenue a fee of ten dollars for each one hundred persons or is withinthe state by it but shall be fraction thereof to whom electricity supplied exempt from all other excise and income taxes whatsoever LSA R S 12 425 emphasis added No such denomination exists in the Title 4 statutes at issue herein 17 commissions and the condition its taxes on LSA R S 4 168 and LSA R S 4 227 imposed by taxes precedent is not satisfied and purchase like everybody else LSA R S 4 168 and LSA R S 4 227 the substitution of the Title 4 and LDR cites conditional other Title 4 provisions are taxing no in do commissions and other deductions not contain any to pertinent statutes language making for other statutes must pay racing facility However the taxing for this assertion authority place the statutes Moreover the payment of the fees ensure imposed therein a deposit is required by LSA R S 4 161 and 161 2 that is refundable after payment of specified fees and LSA R S 4 152 and 4 160 authorize the Louisiana to suspend refuse by it for non Presumably requirement or withdraw compliance with LDR that a refers person to a licenses the permits provisions condition applying to a of LSA R S sales tax Commission privileges granted and precedent it for Racing to its 4 141 et seq own internal exemption certificate present proof that payment of other governmental fees due have been paid prior to the issuance by LDR of a sales the existence of such application R 17 of statutory law not been 17 The plain to judge the wisdom language we reverse of legislation or desirability ruling the judgment must be we applied as However affect the not hold that LSA R S 4 168 suspended by of legislation certificate procedure does Consequently Because the trial court erred in Harrah s lawsuits exemption administrative an and LSA R S 4 227 have tax LSA R S 47 302 in favor of LDR and 18 Further the trial written See Lakeside Q or dismissing court failed it is not the function of this court Imports Inc v State 94 0191 p 6 La 7 5 94 639 So 2d 253 257 Authement v Davidson 366 So 2d 986 990 La App 1 Cir 1978 The LDR s attempts to bring racetrack operators within the purview of sales tax law is properly 1260 18 directed 1265 La App to the legislature 1 Cir Having decided the case assignments of error See A P Boat Rentals Cronvich 361 So 2d find it unnecessary to address Harrah s remaining writ denied 363 So 2d 923 on this issue we 18 Inc v La 1978 to reach the motion for summary judgment filed by Harrah s thus remand the matter for further proceedings in accordance with the we foregoing CONCLUSION F or the trial court reasons in favor of the Louisiana Bridges in her Revenue is capacity as the Department of costs of this Revenue and Cynthia Secretary of the Louisiana Department of hereby reversed and the proceedings all borne assigned herein the summary judgment granted by the matter appeal in the is remanded amount of for further 18 026 64 are by the Louisiana Department of Revenue and Cynthia Bridges capacity as the Secretary of the Louisiana Department REVERSED AND REMANDED 19 of Revenue to be in her STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 1727 CONSOLIDATED WITH 2008 CA 1728 THROUGH 1756 AND 2008 CA 1758 HARRAH S BOSSIER CITY INVESTMENT COMPANY L L C VERSUS CYNTHIA BRIDGES IN HER CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF REVENUE AND THE LOUISIANA DEPARTMENT OF REVENUE CONSOLIDATED WITH NUMBER 2008 CA 1757 CYNTHIA BRIDGES SECRETARY OF THE DEPARTMENT OF REVENUE FOR THE STATE OF LOUISIANA VERSUS WILHITE ELECTRIC COMPANY INC GUIDRY J concurs GUIDRY J part and dissents in part and assigns concurring I concur covered only the as by an Harrah s in alternative to its pari extends the slot machine by the majority relative taxing scheme under mutuel operations application of La operations which were taxes provided Harrah s being However I dissent to the extent that R S 4 168 and La authorized none long R S 4 227 to after the enactment of the fees commissions for in La R S 4 168 and La R S 4 227 1 to La R S 4 168 and La R S 4 227 of La R S 4 168 and La R S 4 227 and for which and reasons part and dissenting in part with the result reached it relates majority in are applicable STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 1727 CONSOLIDATED WITH 2008 CA 1728 THROUGH 1756 AND 2008 CA 1758 HARRAH S BOSSIER CITY INVESTMENT COMPANY L L C VERSUS CYNTHIA BRIDGES IN HER CAPACITY AS THE SECRETARY OF THE DEPARTMENT OF REVENUE AND THE LOUISIANA DEPARTMENT OF REVENUE CONSOLIDATED WITH NUMBER 2008 CA 1757 CYNTHIA BRIDGES SECRETARY OF THE DEPARTMENT OF REVENUE FOR THE STATE OF LOUISIANA VERSUS WILHITE ELECTRIC COMPANY INC McDONALD J DISSENTING The real issue in this exemption exclusion Harrah 4 227 s or does are not provide suspended by exclusion an they not owe for the case an The the tax is whether the If an majority I applicable exemption then the taxes has concluded that disagree and believe exemption from the Legislature pursuant taxes to La R S provide for statutes they are are due if an an exclusions and La R S 4 168 and La R S Once these 47 302 Q exemptions and R were the taxes became due This case has been well briefed and each side majority suggests that there are other taxes s position imposed on is well Harrah argued s that The are a substitute for the be Since these license fees imposed normal sales excise and regular licensing taxes they Rather than relieve the taxpayer of a commissions substitute for them and are a a tax separate taxing scheme which makes it However in 1948 The In 1968 the suspension paid for the meaning three means suspended of the term such to taxes any taxes taxes license those Third the track had they could sales taxes for years paid s created in 1986 I believe the more were was Thus the exempted beginning enacted taxes were from 1968 until argument of LDR concerning the persuasive LDR race suggests that this track operators would be subject like everyone else it just providing the exemption in race taxes not or However in 1968 term Such they were not imposed engaged exemption to prove not prove specifically imposed in the horse taxes was were in this Part imposed be then they everyone else 2 subject to the they would be exempt race on paid those they had paid the them to industry had been have to pay pay the license fees from the taxes In other words they other businesses conditional In order that it had on sales for the not purchases would to in lieu of them track operators would be exempt from these race the statutes create created when La R S 4 168 was taxes since 1948 instead commissions and on taxing regime longer because they would be exempt from them and Second since imposed purchases by legislature such enumerated in 1986 alternate exemption in lieu of the are exclusion from 1948 until 1968 in lieu of is occupational action of the subject an an taxes that would things First in 1968 excise and were exemptions period an and create burden Harrah as exemptions of these 20 year and then 1986 tracks such race occupational taxes taxes taxes to receive the and fees imposed license fees must pay exemption the the sales on them If and commissions taxes imposed on The majority quotes found in Tarver World v denied 616 So 2d 672 the difference between Ship Supply La 1993 is when La 4 Cir App as writ Bruce J Oreck Two well established rules of play exemption exclusion and 615 So 2d 423 Inc quoting an statutory construction considering exclusions and exemptions come into exemption A tax provision which exempts from tax a transaction which would in the absence of the exemption otherwise be subject to tax That is a there has been which is tax statutory decision a not to tax clearly within the ambit and authority On the other hand an exclusion relates a certain transaction of the to a taxing statutes to transaction which is because it falls outside the scope of the statute giving rise to a tax ab initio Transactions excluded from tax are those which by the language of the statutes are defined as beyond the reach of the tax not taxable There is purchases no question In fact legislature made track operators if definition of an could be taxes imposed from 1948 until 1968 these sales facilities In 1968 the race that sales not an horse were taxes exclusion dissent 3 that were For these track purchases by This is the imposed reasons race paid by these the decision not the tax these they paid other exemption taxes on I respectfully
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