WILDER v. OKLAHOMA TAX COMMISSION

WILDER v. OKLAHOMA TAX COMMISSION
2012 OK CIV APP 91
Case Number: 109532;
Decided: 05/25/2012
Mandate Issued: 10/11/2012
DIVISION III
Comp. w/109533; 109534; 109535; 109536; 109537; 109538; 109538; 109540
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

IN THE MATTER OF THE PROTEST TO THE DENIAL OF AN ELECTRIC CAR INCOME TAX CREDIT:

ROBERT V. WILDER, JR. and MARIE C. WILDER, Appellants,
v.
OKLAHOMA TAX COMMISSION, Appellee.

APPEAL FROM THE OKLAHOMA TAX COMMISSION

REVERSED AND REMANDED

Katresa J. Riffel, Craig Riffel, Phillip John Outhier, Mitchel, Gaston, Riffel & Riffel, PLLC, Enid, Oklahoma, for Appellants,
Larry D. Patton, Assistant General Counsel, Oklahoma City, Oklahoma, for Appellee.

Wm. C. Hetherington, Jr., Judge:

¶1 Involved here is one of nine appeals by taxpayers from an order of the Oklahoma Tax Commission (OTC/Tax Commission) denying their protests to the disallowance of a tax credit for investments in "qualified electric motor vehicle property" available under 68 O.S. Supp. 2008 § 2357.22(C). By Supreme Court order, taxpayers' appeals were made companion cases. We disagree with OTC's interpretation of § 2357.22(C) and simultaneously issue a decision in each appeal reversing the agency order and remanding with directions to allow the tax credit.

FACTS & PROCEDURAL HISTORY

¶2 In the present case, Robert V. Wilder, Jr. purchased a four-wheeled electric motor vehicle in December of 2009 from Ada Electric Cars, LLC, one of several Oklahoma-authorized Dealers for Tomberlin "low-speed electric vehicles" (LSVs). Mr. Wilder and Marie C. Wilder (the Wilders) insured, paid registration fees, and received an Oklahoma license plate and a certificate of title for their LSV, a 2010 "Tomberlin E-Merge Classic."

¶3 In April 2010, the Wilders filed a joint Oklahoma Resident Income Tax Return (Form 511) for the 2009 tax year, in which they claimed a tax credit for their LSV as an investment in "qualified electric motor vehicle property" (QEMVP). On March 29, 2010, OTC informed the Wilders their "511CR Electric Car credit" was disallowed because "the vehicle(s) does not meet the definition of [QEMVP] as set forth in [§ 2357.22]."

¶4 The Wilders filed a timely protest. By agreement, it was consolidated for hearing purposes with eight other taxpayer protests (collectively, Taxpayers), each of whom were given the same reason for OTC disallowing the tax credit for their 2009 purchases of different, but related models of the Tomberlin E-Merge line of LSVs (the Tomberlin LSVs).1 Like the parties did below, we refer to these nine protests as the "Tomberlin Test Cases."

¶5 An evidentiary hearing limited to the "technical aspects" of the Tomberlin LSVs was held September 29, 2010. During this hearing, counsel for Taxpayers and counsel for OTC's Account Maintenance Division (Division) stipulated the Tomberlin LSVs "meet Federal guidelines and [Oklahoma's] guidelines for LSVs."2 OTC's Administrative Law Judge (the ALJ) heard testimony from Taxpayers' witnesses and Division's witness and admitted numerous exhibits.

¶6 Taxpayers' first witness, Ms. Cash, Director of the OTC's Tax Policy Division, testified that division decided the Tomberlin LSVs were not QEMVP because they were "known as golf carts" and that decision was primarily based on internet research of out-of-state advertising and marketing for the Tomberlin LSVs. Taxpayers' main witness, Mr. Tomberlin, owner and operator of Tomberlin Automotive Group, testified Tomberlin manufactures LSVs and has never manufactured traditional golf carts or golf cars. He explained golf cart dealers do not have to be licensed in Oklahoma, whereas dealers of LSVs are licensed through the Department of Motor Vehicles.3 Mr. Tomberlin explained the technical and manufacturing differences between golf carts or golf cars and LSVs, the latter of which have to meet federal and state safety standards in order to be operated on streets and highways. He testified about the increased cost to manufacture and obtain the required certifications for LSVs. He further testified Tomberlin LSVs are "purpose engineered for on road use."

¶7 Ms. Cash, the only witness in Division's case, testified in greater detail about Tax Policy Division's research and its reason for disallowing Taxpayers' claimed tax credits. At the hearing's conclusion, the ALJ agreed to keep the record open for receipt of the only exhibit admitted over Division's objection4 and instructed both parties to file post-hearing proposals of findings of fact and conclusions of law on November 29, 2010.5

¶8 On March 3, 2011, the ALJ submitted to Tax Commission a 42-page "Findings of Facts, Conclusions of Law and Recommendation" (Recommendation), in which the ALJ disagreed with Division's position that the Tomberlin LSVs were disqualified because they were "known as golf carts" and recommended Taxpayers' protest be granted. Division moved for a hearing by Tax Commission en banc, alleging error with the ALJ's statutory interpretation and findings and requesting vacation of the Recommendation.

¶9 By final order filed May 5, 2011, Tax Commission denied Division's request for consideration en banc, deciding instead to review the files and records of the Tomberlin Test Cases. Tax Commission adopted parts of the Recommendation verbatim with slight modifications to the findings of fact, and applying its own interpretation of § 2357.22(C) to the evidence, nevertheless agreed with Division the Tomberlin LSVs did not qualify for the tax credit because they were "known as golf carts" and denied the taxpayers' protests. Tax Commission filed nine final orders specific to the relevant facts in each taxpayer protest. Taxpayers filed nine separate appeals from each final order, raising the same four issues of error, and as previously explained, their appeals were designated companion cases with separate records.6

STANDARD OF REVIEW

¶10 Article II of the Administrative Procedures Act (APA), 75 O.S. 2011 §§ 308a-323, specifically § 318, which addresses judicial review of final agency orders, does not apply to Tax Commission. 75 O.S. Supp. 2002 § 250.4(B)(1); United States Fidelity & Guaranty Co. v. State ex. rel. Oklahoma Tax Commission, 2002 OK 42, ¶17, fn.1, 54 P.3d 1010, 1012. Therefore, in a direct appeal to this Court from an order by Tax Commission, we will "review the entire record made before an administrative agency acting in its adjudicatory capacity to determine whether the findings and conclusions set forth in the agency order are supported by substantial evidence." Samson Hydrocarbons Co. v. Oklahoma Tax Commission, 1998 OK 82, ¶5, 976 P.2d 532, 535. Tax Commission's order will be affirmed "if the record contains substantial evidence in support of the facts upon which the decision is based and the order is otherwise free of error." Id. However, its legal rulings, like those made by a district court judge, are subject to an appellate court's plenary, independent and non-deferential re-examination. Blitz U.S.A., Inc. v. Oklahoma Tax Commission, 2003 OK 50, ¶6, 75 P.3d 883, 885.

ANALYSIS

The Tax Credit Statute

¶11 Tax Commission found the issue presented by the Tomberlin Test Cases is "[w]hether the Tomberlin E-Merge Line of LSVs meets the definition of [QEMVP] and qualifies for the Credit provided by [§ 2357.22(C)]." The parties agreed 68 O.S. Supp. 2008 § 2357.22 is applicable to the 2009 tax year, which provided, in pertinent part:7

A. For tax years beginning before January 1, 2010, there shall be allowed a one-time credit against the income tax imposed by Section 2355 of this title . . .for investments in qualified electric motor vehicle property placed in service after December 31, 1995.

***

C. As used in this section, "qualified electric motor vehicle property" means a motor vehicle originally equipped to be propelled only by electricity to the extent of the full purchase price of the vehicle; provided, if a motor vehicle is also equipped with an internal combustion engine, then such vehicle shall be considered "qualified electric motor vehicle property" only to the extent of the portion of the basis of such motor vehicle which is attributable to the propulsion of the vehicle by electricity. The term "qualified electric motor vehicle property" shall not apply to vehicles known as "golf carts," "go-carts" and other motor vehicles which are manufactured principally for use off the streets and highways.

D. The credit provided for in subsection A of this section shall be fifty percent (50%) of the cost of the qualified clean-burning motor vehicle fuel property or qualified electric motor vehicle property. (Emphasis added.)

¶12 There is no dispute the subject vehicles are "motor vehicles originally equipped to be propelled only by electricity to the extent of the full purchase price of the vehicle," the definition of QEMVP provided by § 2357.22(C)'s first sentence. As a result, the proviso that follows for electric vehicles which are also equipped with internal combustion engines does not apply here.

¶13 Tax Commission narrowed the issue when identifying "resolution of the protest requires proper interpretation of the provisions of [§ 2357.22(C)]8 . . . specifically the last sentence of the subsection"(the Exclusion). Its interpretation is an issue of first impression for Tax Commission and this court.9

¶14 Statutory construction presents a question of law. Blitz U.S.A., Inc. v. Oklahoma Tax Commission, 2003 OK 50, ¶6, 75 P.3d 883, 885. Tax Commission correctly recognized "[t]he goal of any inquiry into the meaning of a legislative act is to ascertain and give effect to the intent of the legislature." Id., ¶14, 75 P.3d at 888. The Legislature "is presumed to have expressed its intent in a statute's language and to have intended what the text expresses." Id. "Where a statute is plain and unambiguous, it will not be subject to judicial construction, but will be given the effect its language dictates." Id. "Only where the intent cannot be ascertained from a statute's text, as occurs when ambiguity or conflict (with other statutes) is shown to exist, may rules of statutory construction be employed." Id.

¶15 Like tax exemptions and deductions, tax credits depend entirely on legislative grace. Tax credits must clearly be expressed, and whether one is allowed to the taxpayer depends upon the statute. Fent v. Oklahoma Tax Commission, 2004 OK 59, ¶7, 99 P.3d 241, 244. Tax credits are strictly construed. TPQ Investment Corp. v. Oklahoma Tax Commission, 1998 OK 13, ¶8, 954 P.2d 139, 141.

Statutory Constructions
Presented to Tax Commission

¶16 According to Taxpayers, whether the subject vehicles qualify for the tax credit under § 2357.22(C) "depends upon how the LSV was 'principally manufactured.'" They argue if the LSV is propelled by electricity and is not a golf cart, go-cart or vehicle principally manufactured for use off streets and highways, it is QEMVP. They also argue a LSV manufactured for incidental use off streets and highways still qualifies for the tax credit, and only those "principally manufactured" for use off streets and highways are not QEMVP. Taxpayers rely on the definition of LSVs in Title 47 (Oklahoma's Highway Safety Code and the Vehicle and Registration Act) which requires compliance with federal motor vehicle safety standards for LSVs.10

¶17 Division argued, regardless of whether a vehicle is a LSV under state or federal law, "a vehicle is only qualified for the § 2357.22(C) tax credit if it is: (1) not known as a golf cart or go-cart, or (2) not known as a motor vehicle manufactured principally for use off the streets and highways." (Emphasis in original.) Division relies on the plain language of § 2357.22(C) and that since its enactment in 1996, the Legislature has not amended it to include LSVs, despite having introduced that the new term "LSVs" to Title 47 in 2001and having since amended § 2357.22 several times.

ALJ's Interpretation

¶18 The ALJ concluded the Exclusion is clear and unambiguous, but because the term "golf carts" is not defined in Oklahoma statutes, he relied on other states' definitions from which he deduced a "composite description" for that term. After considering Oklahoma law prohibits the registration of golf carts and their operation on its streets and highways, the ALJ then concluded:

From the plain and unambiguous language of the Statute, the Legislature intended to exclude "vehicles" known as "Golf Carts" (which are used to convey a person or persons and equipment to play the game of golf in an area designated as a golf course, which were originally designed and manufactured for operation on a golf course for sporting and recreational purposes and that are not capable of exceeding speeds of fifteen (15) miles per hour) which are manufactured principally for use off the streets and highways.

Based in part on Tax Policy Division's testimony that the legal, on-road operation of LSVs in Oklahoma do not immediately qualify them for the tax credit because golf carts can become equipped to be street legal, the ALJ concluded the Legislature also intended to exclude a "golf cart," which has been modified (post-manufacture) to meet the safety requirements required by [federal law] to make the "vehicle" a street legal LSV.

¶19 The ALJ next considered OAC 710:60-3-115 (the Rule) recognizes 68 O.S. Supp. 2008 § 1355(10)'s allowance of an exemption from sales tax if the owner of a LSV tags and titles it and has paid the required excise tax for the LSV.11 The ALJ concluded the Exclusion's language did not support Division's interpretation and "the phrase 'known as a golf cart' cannot be read in isolation as a separate exclusion but instead read in its entirety to put the exclusionary language in its proper context. By doing so, there are no conflicts with the Rule and/or the Exemption, so as to avoid absurd results."

Tax Commission's Interpretation of the Exclusion

¶20 After dealing with preliminary matters, the Commission cited 68 O.S. Supp. 2006 § 2353(3) for the mandate that "any term used in [the Oklahoma Income Tax Act, 68 O.S. 2001 § 2351 et seq.] shall have the same meaning as when used in a comparable context in the Internal Revenue Code [IRC] unless a different meaning is clearly required." Based on the IRC use of the phrase "'manufactured primarily for use on public streets, roads, and highways' as one of its requirements for the federal 'qualified plug-in electric vehicle credit,'" Tax Commission determined the word "'principally' is a synonym of 'primarily'" and the same IRC phrase "is practically identical; inversely, to the term 'manufactured principally for use off streets and highways" used in the Exclusion.

¶21 Finding "the terms 'known as a golf cart' and 'known as a go-cart' used in [§ 2357.22(C)] have no comparable terms used in the IRC," Tax Commission concluded a "different meaning is clearly required" for those terms and proceeded to interpret the Exclusion, as follows:

The words "known as" cannot be ignored and must be given legal effect. We are not allowed to ignore the plain language of the statute for to do so would render such language a nullity. If we simply looked at whether or not the vehicles were golf carts (as the Administrative Law Judge did) we would be ignoring the plain express language of the statute. The language of the statute does not say that golf carts are disqualified. It says that vehicles "known as" golf carts are disqualified. We conclude that the phrase "known as" modifies the terms "golf carts" and "go-carts" and does not modify the phrase "manufactured principally for use off the streets and highways." Pursuant to [§ 2357.22(C)]:

1. All vehicles known as golf carts are not qualified electric motor vehicle property;

2. All vehicles known as go-carts are not qualified electric motor vehicle property;

3. All vehicles which are manufactured principally for use off the streets and highways are not qualified electric motor vehicle property.

A vehicle which is known as a golf cart but is manufactured principally for use on the streets and highways is not qualified electric motor vehicle property. In this case, the legal issue which must be resolved is whether the subject vehicle falls into category 1, that is, is it a vehicle which is known as a golf cart.

(Parentheses in original.)

Appellate Arguments

¶22 Taxpayers argue Tax Commission's interpretation "creates an absurd result" not contemplated by the Oklahoma Legislature. They claim because "LSVs did not exist when [§ 2357.22(C)] was originally enacted - there is no basis to assume the [Legislature] meant to exclude [LSVs] that possibly resembled golf carts in some form" and "it makes no logical sense to disqualify the LSVs from the tax credit if someone, anyone, thinks of them as such." They also complain Tax Commission's analysis introduces criteria which does not appear in § 2357.22(C), i.e., internet advertising/marketing, the existence of enclosures, and appearance, and ignores the plain meaning of the statute.

¶23 Division argues if the Legislature intended to exclude only vehicles which were golf carts, as Taxpayers argue, the term 'known as' would constitute surplusage and be rendered meaningless. It claims the Legislature intended to exclude from the status of QEMVP "not only vehicles which are 'golf carts' and 'go-carts' but vehicles which are known as 'golf carts' and 'go-carts.'"

The Exclusion - Unambiguous or Ambiguous?

¶24 Tax Commission did not agree or disagree with the ALJ's conclusion that the Exclusion was clear and unambiguous, but implied such by limiting its interpretation to the common meaning of the "plain express" language. The test for ambiguity in a statute is whether the language is susceptible to more than one reasonable interpretation. YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶6, 136 P.3d 656, 658. This issue is a question of law for this court. Id. We find the "strikingly opposing views of its meaning" demonstrates the Exclusion is ambiguous. McNeill v. City of Tulsa, 1998 OK 2, ¶10, 958 P.2d 329, 332; see also Berry v. State ex rel. Oklahoma Public Employees Retirement System, 1989 OK 14, ¶ 7, 768 P.2d 898, 900.

¶25 The ambiguity arises from the phrase "known as 'golf carts,' 'go-carts'" and § 2357.22(C)'s failure to answer the question that phrase poses, "known by whom?" Responding to that very question at the hearing, Ms. Cash testified Policy Division decided to "look at people in the industry, dealers, manufacturers, people who golf and sell golf carts" and did internet research of companies "all over the country . . . places where people play golf." Based on that research, Policy Division decided the subject vehicles "were known as golf carts" and did not qualify as QEMVP under § 2357.22(C). After slight modification to Policy Division's statutory interpretation, Tax Commission relied on evidence it found was relevant to the issue of whether the subject vehicles were "known as golf carts" and reached the same decision.12

¶26 We conclude Tax Commission's interpretation of the Exclusion as having three separate categories focuses too narrowly on certain phrases in the Exclusion. While agreeing the phrase "known as" cannot be ignored, we disagree such phrase modifies "golf-carts" and "go-carts."

¶27 The phrase "known as a 'golf cart,' 'go-cart'" is a participial phrase in which "known" is the past participle of the irregular verb "know." The preposition "as" and its two objects, the plural nouns "'golf carts,' 'go-carts'" form a prepositional phrase that acts as an adverb to modify "known." The entire phrase "known as 'golf carts,' go-carts'" acts as an adjective to modify or describe the plural noun "vehicles." That term is the object of the prepositional "to," which prepositional phrase together with the auxiliary verb and adverb "shall not," and the intransitive verb "apply" clearly mandate the subject of the Exclusion, "[t]he term 'qualified electric motor vehicle property'" shall not apply "to vehicles" described by "known as 'golf carts,' 'go-carts.'"

¶28 Lacking a statutory definition for "known as," Tax Commission relied on Black's Law Dictionary for the meaning of "known," which is "perceived, understood, recognized, familiar." Webster's Third New International Dictionary (1986). However, the phrase "known as" means "to be called a certain name," www.englishclub.com/ref/esl/phrasal_verbs/K/known_as_1966.htm. It may also mean "perceive as having a specified characteristic" or "give a particular name or title."13 The New Oxford American Dictionary (Third Edition).

¶29 Oklahoma statutes similarly do not define "golf carts" or "go-carts," and the same can be said about most dictionaries printed within the last twenty years. Therefore, we look to other resources to determine the common meaning of the relevant term, "golf carts." Definitions obtained on the internet from various online dictionaries reveal dual meanings of the term "golf carts."14 Technically, "golf carts" refer to two-wheeled, non-motorized carts with long handles used to carry golf bags by golfers. However, according to golf industry and government websites,15 the general public continues to erroneously use "golf carts" for the four-wheeled motorized versions (first propelled by electric battery and later by gas engines) which have been mass produced since the late 1950's for transporting one or more golfers and their golf equipment around a golf course while playing golf. Such golf carts, as originally manufactured and under current industry standards, may not exceed fifteen miles per hour (mph) on a horizontally level surface.16 For the past fifteen years, these "conventional golf carts" have been called "golf cars" by their manufacturers.17

¶30 Despite the industry's new term, our Legislature acknowledged the continued use of "golf carts" by the general public for the conventional motorized versions used on golf courses in 1996, when it amended § 2357.22 to add subsection C. The Exclusion phrase, "vehicles known as 'golf carts,' 'go-carts' and other motor vehicles which are manufactured principally for use off the streets and highways" was transferred from a statute enacted in 1985 listing "unlawful acts" regarding registration and operation of motor vehicles, i.e., 47 O.S. Supp. 1985 § 1151. In the same subsection as the Exclusion phrase, § 1151(E),18 the Legislature also addresses "cycles, known and commonly referred to as 'minibikes' and other similar trade names," recognizing both the name the general public uses in quotation marks and other possible names used in commerce. However, instead of adding the industry name "golf car" for "golf carts" when enacting § 2357.22(C) ten years later, the Legislature elected to use the same phrase and quotation marks from § 1151(E) in the Exclusion. Considering all of the above, we conclude by the phrase "known as 'golf carts,' 'go-carts,'" the Legislature simply intended to identify the "vehicles" the general public continues to recognize and call "golf carts," i.e., conventional golf carts which are used only on golf courses and do not exceed 15 mph.

¶31 This interpretation is consistent with the Legislature's continued prohibition in 1996 against registration and operation of golf carts on Oklahoma streets and highways, despite the emerging trend begun by several states and cities in the early-1990's authorizing operation of golf carts and all-terrain vehicles on public roads. Due to this trend and the resulting conflict between state laws and federal motor vehicle safety standards for passenger cars the federal Department of Transportation created in 1998 a new classification of motor vehicles, "Low speed vehicles," and set for it safety standards to decrease injuries or hazards to the public which might potentially be caused by these slower moving vehicles.19

¶32 Tax Commission's interpretation also ignores the meaning and significance of the general phrase, "and other motor vehicles," which immediately follows "'golf carts,' 'go-carts.'"20 There is no comma separating the last named vehicle from the conjunction "and," which connects the specific vehicles to the general phrase. The next word, "other" is an adjective modifying the noun phrase "motor vehicles" and as used there, means "more" or "additional." Webster's Third New International Dictionary (1986). This definition makes clear the Legislature's purpose for this "catchall phrase" which follows the specifically named vehicles - to assure inclusion of additional unnamed motor vehicles "of the same kind." Broadway Clinic v. Liberty Mutual Insurance Company, 2006 OK 29, ¶20, 139 P.3d 885, 878; Bonner v. Oklahoma Rock Corporation, 1993 OK 131, ¶8, 863 P.2d 1176, 1181. Based on the Exclusion's list of specific vehicles followed by the catchall phrase, we conclude the Legislature intended to identify a class of vehicles of like or similar import, to which the term "qualified electric motor vehicle property" shall not apply.21

¶33 Consistent with the general public view of a conventional "golf cart," Oklahoma's Sales Tax Code lists the term "golf carts" as one example of "amusement, sports, entertainment, or other recreational activities." See 68 O.S. Supp. 2007 §1354 (15) and (16). The class to which the Exclusion applies is not restricted to those activities, however, because the catchall phrase "and other motor vehicles" is followed by a restrictive clause "which are manufactured principally for use off the streets and highways." See Baccus v. Banks, 1947 OK 322, 192 P.2d 683.22 The restrictive clause identifies the relationship or similarity between the specific and the un-named vehicles and determines the makeup of the class.23

¶34 Interpreting the Exclusion as a whole, we conclude the Legislature's intent was to exclude from the definition of QEMVP a class of electric motor vehicles which, like conventional golf carts and go-carts, are manufactured principally for use off streets and highways. This issue should have been the sole focus when determining whether the Tomberlin LSVs fall within the excluded class, which we find includes not only conventional golf carts and go-carts but also any electric motor vehicle manufactured principally for use off Oklahoma streets and highways.

¶35 Division's application of the Exclusion with three separate exceptions has resulted in approving the credit for 84 models of LSVs and disallowing 66 models of LSVs from approximately 30 manufacturers.24 Similarly, Tax Commission expressly holds that certain evidence is relevant to the issue whether the subject vehicles were "known as golf carts" and that the very same evidence would not be relevant to whether the subject vehicles were "manufactured principally for use off the streets and highways."25 An ambiguous statute must be given an interpretation that "will insure its just and uniform operation," Magnolia Pipe Line Co. v. Oklahoma Tax Commission, 1946 OK 113, ¶16, 167 P.2d 884, 889, and "will not operate to the advantage of some taxpayers and to the disadvantage of others,'" Neumann v. Oklahoma Tax Commission, 1979 OK 64, ¶7, 596 P.2d 530, 532.

¶36 Article 10, §22 of the Oklahoma Constitution allows "the classification of property for purposes of taxation." The State, through the Legislature, "may provide for exemptions and credits from income taxation in the Income Tax Code, 68 O.S. 2011 §2357 et seq." Fent v. State ex rel. Oklahoma Tax Commission, 2004 OK 59, ¶10, 99 P.3d 241, 245. An invalid tax classification includes one that discriminates between persons or property in like situations. Id. "When a statute is susceptible to more than one construction, it must be given an interpretation that frees it from constitutional doubt rather than one which would make it fraught with fundamental-law infirmities." State ex rel. Turpen v. Oklahoma State Board for Property and Casualty Rates, 1986 OK 54, ¶7, 731 P.2d 394, 398-399. Unlike Tax Commission's interpretation and application, our interpretation of the Exclusion as a single exception to QEMVP would prevent inconsistent and unequal operation upon property within the same class when determining entitlement to the tax credit.

¶37 Implied from our interpretation of the Exclusion is legislative intent that the term QEMVP means motor vehicles originally equipped to be propelled by electricity and which are manufactured principally for use on streets and highways. This interpretion is supported by the amendment to § 2357.22, enacted as an emergency measure effective June 9, 2010, eleven months before Tax Commission filed the order on review. Subsection (A)(2) allows a one-time tax credit "[f]or tax years beginning before January 1, 2015" . . . [f]or investments in [QEMVP] in service after December 31, 1995, and before July 1, 2010." Pertinent to this appeal is the Legislature's amendment and re-designation of § 2357.22(D) to (E) and substitution of (D) with the following definition, "[a]s used in this section, "motor vehicle" means "a motor vehicle originally designed by the manufacturer to operate lawfully and principally on streets and highways."

¶38 The fact that the 2010 amendment was not in effect when Taxpayers made their claim for the tax credit or when Division disallowed that claim does not make the amended definition irrelevant. Quail Creek Golf and Country Club v. Oklahoma Tax Commission, 1996 OK 35, ¶10, 913 P.2d 302, 304. "It is well settled that subsequent amendments to an act can be used to ascertain the meaning of a prior statute." Id. "Where the meaning of a prior statute is subject to serious doubt and has not been judicially determined, a presumption arises that a subsequent amendment was meant to clarify, as opposed to change, the prior statute." Id.

¶39 Importantly here, the new definition of "motor vehicle" for § 2357.22 clarifies the definition of QEMVP under § 2357.22(C) to mean a "motor vehicle" which is originally designed by the manufacturer to operate lawfully and principally on streets and highways. As we view it, the new definition clarifies what was implied from § 2357.22(A) and (C) as a whole, i.e., the Legislature's intent to benefit taxpayers who invest in electric motor vehicles which, as originally designed and equipped, are manufactured principally for lawful use or operation on streets and highways in Oklahoma. This clarified focus on how the motor vehicles are designed and manufactured or equipped clearly eliminates the tax credit for motor vehicles modified, post-manufacture, to qualify as QEMVP, e.g., street modified golf carts.

¶40 Moreover, even without considering the 2010 amendment, interpretation of the Exclusion as having three separate and distinct "categories" creates an absurd result that we believe was not intended by the Legislature. One of the examples Tax Commission gave in its order to show how the Exclusion would apply demonstrates this point, i.e., "[a] vehicle which is known as a golf car but manufactured principally for use on streets and highways is not a qualified electric motor vehicle property and does not qualify for the tax credit." (Emphasis added.) Tax Commission's interpretation gives more weight or priority to its first category, "known as 'golf carts,'" and allows it to trump the Legislature's intent for § 2357.22(C). We find there is no support in the express language of the Exclusion for doing so.26

¶41 Tax Commission's order is clearly erroneous and must be reversed. However, we need not remand for further resolution in light of our interpretation of § 2357.22(C) and the Exclusion, because its primary issue - whether the Tomberlin LSVs are manufactured principally for use off the streets and highways - was fully tried below.27 On this record it is undisputed the Tomberlin LSVs were originally equipped for propulsion by electricity, manufactured principally for legal use on roads, and not manufactured principally for use off the streets and highways.28 As a result, the Tomberlin LSVs are QEMVP and qualify for the tax credit. We remand with directions to allow the tax credit for the 2009 tax year.

¶42 REVERSED AND REMANDED.

BELL, P.J., and MITCHELL, J., concur.

FOOTNOTES

1 The Tax Commission clarified in its order that the subject LSVs include the following Tomberlin models: 2010 E-Merge Classic, 2010 E-Merge E4 LE, 2010 E-Merge E4 LE (AC Drive), 2008 E-Merge E4, 2010 E-Merge E2 Shelby, 2010 E-Merge E2 LE, three 2010 E-Merge E2 48SS, and 2009 E-Merge E2.

2 Effective November 1, 2001, the Oklahoma Legislature first defined "low-speed electrical vehicle" in Title 47 and 68, as "any four-wheeled electrical vehicle that is powered by an electric motor that draws current from rechargeable storage batteries or other sources of electrical current and whose top speed is greater than twenty (20) miles per hour but not greater than twenty-five (25) miles per hour and is in compliance with the National Highway Traffic Safety Administration standards for low-speed vehicles in 49 C.F.R. 571.500." See 47 O.S. Supp. 2011 § 1-134.1, the Highway Safety Code, 47 O.S.2011 § 1102(14), the Vehicle License and Registration Act, and 68 O.S.2011 § 2101(3), Vehicle Excise Tax. For the record, the federal standard for "low speed vehicles" includes vehicles propelled by battery or gasoline engines.

3 The record shows the Oklahoma Motor Vehicle Commission approved Power Group International, d/b/a Tomberlin Outdoors, as an authorized distributor for Tomberlin LSVs in Oklahoma during the tax year at issue.

4 Division timely objected to admission of the hearing transcript in a 2009 action filed against OTC in Garfield County District Court by Ada Electric Cars, LLC and other Oklahoma businesses who sell various makes of LSVs, seeking, inter alia, declaratory and injunctive relief and civil damages. After the judge granted an injunction against OTC's emergency rule, OTC and its commissioners applied to the Oklahoma Supreme Court, who assumed original jurisdiction and issued a writ prohibiting the judge from proceeding further except to dismiss the action. The Supreme Court determined the judge "ha[d] no subject matter jurisdiction and venue [was] improper" and vacated his orders filed October 22 and October 28, 2009. See OTC's Proposed Findings and Conclusions of Law, Exhibit G.

5 Division, whose pretrial motion to exclude the transcript and its timely objection at the hearing were both overruled, complained about the ALJ's admission of the transcript as hearsay. The Tax Commission filed an order December 16, 2010, allowing the admission, and Division did not raise the issue again.

6 The Supreme Court denied OTC's motion to consolidate the related appeals with a single record, because each case had separate records at the Tax Commission. In the same order filed June 17, 2011, the Court directed Taxpayers to respond to OTC's request that the parties submit one combined brief to cover all of the companion cases. Taxpayers agreed with the request and the Court ordered the parties to file their briefs under No. 109,532 and to file 10 copies of a one-page Notice explaining their agreement that the briefs filed in No. 109,532 apply to each of the other eight cases. All parties complied with that order.

7 Section 2357.22(A) also provided, as does the 2011 version, a one-time tax credit for investments in "qualified clean-burning motor vehicle fuel property" placed in service after December 31, 1990, which term is defined from the omitted sub-section, § 2357.22(B).

8 We have replaced "§ 2357.22(C)" in lieu of "the Statute," to which Tax Commission refers in its order when clearly addressing (C). The correction is necessary because Tax Commission adopted the ALJ's reference to "the Statute" for "the income tax credit ('Credit') available pursuant to 68 O.S. § 2357.22(D)." However, subsection (D) sets the allowable amount of the "Credit" and by its own terms explains the "Credit" is granted under § 2357.22(A).

9 According to the ALJ, "this is the first time any protest to the Division's disallowance of the Credit provided by [§ 2357.22(C)] had been filed with the Office of the Administrative Law Judges and it will be the first time the Tax Commission has ever issued a Commission Order concerning the Credit provided by [§ 2357.22(C)]." However, we note the record includes ALJ's Exhibit 1, "Electric Car Cases Litigation Schedule," dated July 16, 2010, relating to the Tomberlin Test Cases and several taxpayer protests over the disallowance of the same credit for representative models of LSVs manufactured by "Ruff & Tuff." By agreement, the "Ruff & Tuff Test Cases were also consolidated for hearing by another ALJ on the same day as the Tomberlin Test Cases for "more effective management" of Division's then-current "caseload of 435 Electric Car Cases." Tax Commission entered non-precedential decisions in the Ruff & Tuff Test Cases allowing the Credit for the taxpayers and sustaining their protests.

10 See fn. 2 for the definition of "LSV," requiring compliance with the "National Highway Traffic Safety Administration standards for low speed vehicles in 49 C.F.R. 571.500," a/k/a the "NHTSA Standard 500" or "FMVSS 500." In addition to the 25 mph maximum speed attainable in 1 mile, FMVSS 500 requires LSVs to have: (1) headlamps, (2) front and rear turn signal lamps, (3) tail lamps, (4) stop lamps, (5) reflex reflectors: one red on each side as far to the rear as practicable, and one red on the rear,(6) an exterior mirror mounted on the driver's side of the vehicle and either an exterior mirror mounted on the passenger's side of the vehicle or an interior mirror, (7) a parking brake, (8) a windshield of AS-1 or AS-5 composition conforming to the American National Standard Institute's (ANSI) safety code for glazing materials on motor vehicles operating on land highways, (9) a 17- digit Vehicle Identification Number (VIN), and (10) a Type-1 or Type-2 seat belt assembly installed at each designated seating position.

11 The ALJ found it surprising that neither party cited OAC 710: 60-3-115, which first went into effect June 25, 2009, and defines "low speed electrical vehicle" identical to 47 O.S.2001 § 1-134.1, 47 O.S.2001 § 1102, and 68 O.S.2001 § 2101(3).

12 Tax Commission found (1) evidence in the record of how the vehicle was marketed" was entitled to great weight in determining how the vehicle was known; (2) testimony regarding how the vehicles were "commonly referred to, marketed and utilized in the industry and in the public domain" was the "strongest and most persuasive evidence of how these vehicles were known. Mr. Tomberlin's testimony that "the LSV's were commonly referred to as golf carts" was given as an example of the latter finding. We note for the record he actually testified that LSVs were commonly referred to as "street legal golf carts."

13 The last definition best fits the Legislature's most common and longtime use of "known as" to provide titles to its enactments, e.g., 2 O.S.2011 § 1-1, "[t]his Act shall be known as the Oklahoma Agricultural Code."

14 See http://www.merriam-webster.com/dictionary/golf%20cart; Dictionary.com, http://dictionary.reference.com/browse/golf+cart; The Free Dictionary, http://www.thefree dictionary.com/golf+cart.

15 See "The History of Golf Carts," http://www.golflink.com/facts_18499_history-golf-carts.html; "A History of Golf Carts," http://golfguidetoday.info/?p=305; "Golf Carts," http://topics,info.com/Golf-Carts_1582; "Low Speed Vehicles," http://www.gsa.gov. See also fn. 18 and 19.

16 The ALJ took judicial notice of the website for the National Golf Car Manufacturers Association, Inc. (NGCMA) "to complete the background of the Tomberlin Test Cases." The NGCMA is now known as "International Light Transportation Vehicle Association." See http://www.iltva.org/Standards.aspx.

17 The ALJ took judicial notice and Tax Commission relies on 49 CFR Part 571, i.e., FMVSS 500. See fn. 10. Effective June 17, 1998, the summary of final rule explains, in footnote one, that "[w]hile many members of the general public use the term 'golf cart,' the manufacturers of those vehicles use the term 'golf car'. The final rule uses 'golf car,' except in those instances in which the term is used in quotation." See http://www.nhtsa.gov/cars/rules/rulings/lsv/lsv.html.

18 Until its amendment in 2005, subsection E of § 1151 provided, in relevant part:

Self-propelled or motor-driven cycles, known and commonly referred to as "minibikes" and other similar trade names, shall not be registered under the provisions of the Oklahoma Vehicle License and Registration Act or be permitted to be operated on the streets or highways of this state.
****
The provisions of this subsection shall also apply to those motor-driven or operated vehicles known as "golf carts", "go-carts" and other motor vehicles which are manufactured principally for use off the streets and highways.

In 2005, the Legislature created a new introductory paragraph setting out the unlawful acts described in the first paragraph which would apply to "the following self-propelled or motor-driven and operated vehicles." The specific cycles, vehicles and the general phrase were combined into a 4-item list, with slight modification to the language, and the quotation marks were removed from the terms, golf carts and go-carts, but not minibikes.

19 See footnotes 11 and 19.

20 We note the term "vehicles" is consistently alternated with "motor vehicles" in § 2357.22(C) and throughout § 2357.22, from which we presume the Legislature intended they be used interchangeably for purposes of this section.

21 Similar statutory construction, i.e., a list of specific words suggesting a class that is followed by general words, has been construed under the doctrine of ejusdem generis as restricting the general words to the same class defined by the specific words. See State ex rel. Com'rs of Land Office v. Butler, 1987 OK 123, 753 P.2d 1334, ("oil, gas and other minerals"); White v. Wint, 1981 OK 154, 638 P.2d 1109 ("laborers, workmen, mechanics, prison guards, janitors of public institutions, or other persons now employed.")

22 This case holds the doctrine of ejusdem generis does not apply to restrict the meaning of the general words when it is apparent the Legislature intended the words to go beyond the class identified by the particular words.

23 The Legislature's prior use of the identical phrase in 47 O.S. Supp. 1985 § 1151 similarly identifies a class of vehicles for which registration and operation on the streets and highways of this state are not permitted.

24 In ¶ 15 of the Findings of Fact section, the Order states, "Tax Policy has issued Letter Rulings approving the Credit provided for by the Statute for approximately Eight-Four (84) Models of LSVs and disallowing the Credit for approximately Sixty-Six (66) Models of LSVs from approximately Thirty (30) manufacturers."

25 After interpreting the Exclusion, Tax Commission found "[w]hether or not a vehicle is known as a golf cart is a question of fact to be determined by a consideration of all relevant evidence." It then found the IRS determination that the Tomberlin LSVs are eligible for the federal "qualified plug-in electric vehicle" tax credit is relevant on the question whether a vehicle was manufactured principally for use off the streets and highways, but not relevant with regard to whether a vehicle is known as a golf cart. This finding was based on the federal definitions of "new qualified plug-in electric vehicle" and "motor vehicle" as used in "IRC § 30D," i.e., 26 U.S.C. § 30D (2009), the tax credit upon which § 2357.22(C) is based. Importantly, "motor vehicle," for purposes of § 30D, means "any vehicle which is manufactured primarily for use on public streets, roads, and highways . . .and which has at least 4 wheels." See IRC § 30(c)(2).

26 Our interpretation also resolves the absurd result with Oklahoma's Motor Vehicle laws in Title 47 and sales tax exemption in Title 68, as recognized by the ALJ. Statutes relating to the same class of persons or things or which have a common purpose should be viewed as in pari materia. Culbertson v. McCann, 1983 OK 57, ¶14, 664 P.2d 388, 391. Because we find sufficient support for our interpretation, we do not decide whether a statute providing an investment tax credit for motor vehicles propelled by electricity should be construed as in pari materia with motor vehicle safety and registration laws which specifically define and regulate "Low speed electric vehicles."

27 At the hearing, Ms. Cash testified Policy Division considered whether the Tomberlin LSVs were manufactured principally for use off streets and highways, but disallowed the tax credit solely because in Division's opinion, the Tomberlin LSVs were known as golf carts. Taxpayers tried their case, arguing the issue was whether the Tomberlin LSVs were manufactured principally for use on streets and highways.

28 Division admitted some marketing of the Tomberlin LSVs as "Dual Use - Street or Golf" to prove they were "known as golf carts." This marketing refers to the Tomberlin LSVs' key switch which has three positions, "OFF/SPEED 1/SPEED 2." In light of Mr. Tomberlin's testimony concerning various non-golf reasons for the optional 15 mph speed position, Division's evidence does not establish the Tomberlin LSVs were manufactured principally for use off streets and highways, as required for disallowance under the Exclusion. Furthermore, if the Legislature had intended to prohibit any other alternative use, it would have expressly done so, as it did several times in § 2357.22(B)(3), e.g., "If the [qualified clean-burning motor vehicle fuel] property is used for any other purposes than the delivery of methanol or "M-85," the tax credit shall immediately be refunded to the [OTC]."