Clark Co P.u.d. No. 1, Et Al, Cross-app./res. V State Of Wa, Dept. Of Revenue, App./cross-res.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CLARK COUNTY PUBLIC UTILITY
DISTRICT NO. 1, a municipal corporation;
and GRAYS HARBOR PUBLIC UTILITY
DISTRICT NO. 1, a municipal corporation,
No. 37330-1-II
Respondents/
Cross-Appellants,
v.
STATE OF WASHINGTON DEPARTMENT
OF REVENUE,
ORDER AMENDING OPINION
AND DENYING MOTION FOR
RECONSIDERATION
Appellant/
Cross-Respondent.
Appellant/Cross-Respondent Department of Revenue moves this court for reconsideration
of its published opinion filed on December 15, 2009. This court amends the opinion as follows:
On page 11 of the slip opinion, first paragraph, line 10, the underscore is removed from
the comma following Homestreet.
On page 15 of the slip opinion, the following paragraph is deleted:
To begin, generally issues not raised in the trial court may not be raised for
the first time on appeal. RAP 2.5(a). Neither party raised the issue of remedies
available under the APA below; therefore, we need not address the merits of the
argument.
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and the following paragraph is inserted:
Generally issues not raised in the trial court may not be raised for the first
time on appeal. RAP 2.5(a). Neither party raised the issue of remedies available
under the APA below; therefore, we do not address the merits of the argument.
On pages 15 and 16 of the slip opinion, the following paragraphs are deleted:
But even if we were to address the merits of the Department’s belated
APA argument, we cannot. The Department argues that because its assessment
and imposition of the tax on or about May 1st of every year is an “‘agency action’”
under the APA, the APA establishes the exclusive means of judicial review of the
Department’s action. See Reply Br. of Appellant at 3 n.3. Nevertheless, the
Department fails to recognize the strict procedural and notice requirements that an
agency must comply with under the APA. Indeed, there is scant information in the
record showing whether the Department took any agency action subject to the
APA or whether the Department complied with any notice requirements subject to
the APA. Significantly, the record does not include the Department’s original
assessment enumerating the amount of taxes that the Districts owed under RCW
54.28.020(1)(a). There is simply no indication that either party complied with the
requirements under the APA at any point during the controversy. Likewise, there
is no indication that the Districts were remotely aware that the APA allegedly
governed the Department’s tax assessment and imposition, as the Department now
contends.
Based on the record, we cannot analyze whether the tax assessments are
subject to the APA. Therefore we cannot address the Department’s argument that
the Districts’ lone remedy for excessive payment under RCW 54.28.020 was
through the APA.
On page 18 of the slip opinion, the following paragraph is deleted:
The Districts have failed to provide argument or authority addressing the
implications of applying chapter 82.32 RCW to other titles under which the
Department imposes taxes outside of the excise tax statutes, Title 82 RCW. For
example, if we accept the Districts’ argument, will chapter 82.32 RCW implicate
the probate taxes that the Department imposes under Title 11 RCW? Will the
application of chapter 82.32 RCW as the default administrative statute implicate
the taxes that the Department imposes on the insurance industry under Title 48
RCW?
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and the following paragraph is inserted:
The Districts have failed to provide argument or authority addressing the
implications of applying chapter 82.32 RCW to other titles under which the
Department imposes taxes outside of the excise tax statutes, Title 82 RCW. For
example, if we accept the Districts’ argument, will chapter 82.32 RCW implicate
the probate taxes that the Department imposes under chapter 83.100 RCW?
IT IS SO ORDERED. It is further
ORDERED that the motion for reconsideration is denied.
DATED this _______ day of ________________, 2010.
Bridgewater, P.J.
We concur:
Hunt, J.
Quinn-Brintnall, J.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CLARK COUNTY PUBLIC UTILITY
DISTRICT NO. 1, a municipal corporation;
and GRAYS HARBOR PUBLIC UTILITY
DISTRICT NO. 1, a municipal corporation,
No. 37330-1-II
Respondents/
Cross-Appellants,
v.
STATE OF WASHINGTON DEPARTMENT
OF REVENUE,
PUBLISHED OPINION
Appellant/
Cross-Respondent.
Bridgewater, P.J. — The Department of Revenue (Department) appeals from a summary
judgment for partial refunds to two public utility districts for privilege taxes imposed under RCW
54.28.020. Clark County Public Utility District and Grays Harbor Public Utility District (the
Districts) cross-appealed from the summary judgment that refunded only three years of taxes, not
five. We hold that because the tax is imposed “for the act or privilege of engaging within this
state in the business of operating works, plants or facilities for the generation, distribution and sale
of electric energy,”1 RCW 54.28.020, and because the charges made for “basic service charges”
are not derived from the sale of electric energy, they are not subject to taxation. But we affirm
1
We refer to this as the “privilege tax.”
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that the Districts are entitled to refunds for only three years, not five years. In short, we affirm.
FACTS
This appeal turns on whether the privilege tax imposed under RCW 54.28.020(1)(a)
applies to revenues the Districts received from basic service charges. There are slight differences
in each district’s implementation of their respective basic service charge during the challenged
period, which we explain below.
Clark County Public Utility District
Clark County Public Utility District (Clark County PUD) is a customer-owned utility
providing electric and water services in Clark County, Washington. As a part of its electric
business, Clark County PUD charges a monthly basic service charge from all of its electric
customers. The intended purpose of the basic service charge is to provide revenues for costs that
exist independent of any variable energy value (kilowatt hour or demand). Specifically, the basic
service charges that are levied monthly are created to provide revenues to cover costs that
continue to exist in the event the utility does not sell any electricity to a particular customer.
Some of these ongoing costs include debt service, insurance, and limited labor costs not related to
the sale of electricity.
The basic service charge is subject to change on an annual basis, as it is a component of
Clark County PUD’s annual budget. The budget estimates annual costs (fixed and variable) and
all revenues from the sale of energy, revenues from the basic service customer charges, and other
miscellaneous revenues. If the forecasts of revenue and expenses do not match up or provide an
operating surplus, the Clark County PUD Commission directs staff to complete a detailed revenue
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requirement and cost service study. The study examines the costs to serve each customer class.
It separates variable costs associated with consumption (kilowatt-hour energy costs and demand
energy costs) from the fixed costs associated with the basic service charges.
After receiving recommendations from staff and holding public meetings, the Clark
County Board of Commissioners adopts customer rates, including the monthly basic service
charge rates and the kilowatt-hour rate. The basic service charge varies only by the allocation of
ongoing fixed costs to each customer class. The following is a schedule of basic service charges
by class in effect during the periods at issue here:
January 1, 2000 through August 1, 2001
[Customer Class]
Residential and Small Farm Customers
General Service (no demand)
General Service (kilowatt and demand meter)
Industrial Service (kilowatt and demand meter)
[Basic Service Charge]
$6.40
$15.00
$30.00
$100.00
August 1, 2001 through December 31, 2004
[Customer Class]
Residential and Small Farm Customers
General Service (no demand)
General Service (kilowatt and demand meter)
Industrial Service (kilowatt and demand meter)
[Basic Service Charge]
$6.40
$18.00
$36.00
$120.00
CP at 218.
Clark County PUD bills the basic service charge to all customers with connected or
metered services, regardless of whether the customer uses any electricity during the billing period.
During the years at issue here, Clark County PUD received revenues from basic service charges
and has requested refunds of privilege tax paid on such revenues in the following amounts:
Tax Year
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Year Tax
Paid
2000
2001
2002
2003
2004
2001
2002
2003
2004
2005
Revenue from
Basic Service Customer
Charges
$13,682,645
$13,517,672
$14,201,594
$14,570,945
$14,946,628
Taxes Paid
$292,808
$289,278
$303,914
$311,818
$319,858
CP at 220.
Grays Harbor Public Utility District
Grays Harbor Public Utility District (Grays Harbor PUD) is also a customer-owned utility
and provides electricity to residents and businesses of Grays Harbor County, Washington. It
likewise charges and collects a monthly basic customer charge from all customers, regardless of
whether the customer consumes electric energy during the billing period. Grays Harbor PUD
charges the basic customer charge as a means to recover fixed costs associated with operating the
utility.
Similar to the Clark County procedure, the Grays Harbor County Commissioners rely on
cost of service studies to establish the basic service charge. The cost of service study determines
the true cost to serve each class of customer. Costs are allocated to each customer class based on
the study. The following is a schedule of basic service charges by class in effect during the
periods at issue here:
10/2002 - 12/2005
[Customer Class]
Residential
Small Commercial
Medium Commercial
Small Industrial
[Basic Service Charge]
$11.35
$13.60
$22.60
$30.00
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Large Commercial
$79.20
6/2002 - 9/2002
[Customer Class]
Residential
Small General Service
Medium General Serv
Large General Service
Industrial
Irrigation
[Basic Service Charge]
$9.42
$11.31
$18.85
$65.98
$65.98
$9.43
10/2001 - 6/2002
[Customer Class]
Residential
Small General Service
Medium General Serv
Large General Service
Industrial
Irrigation
[Basic Service Charge]
$10.00
$12.00
$20.00
$70.00
$70.00
$10.00
2000 - 9/2001
[Customer Class]
Residential
Small General Service
Large General Service
Small Industrial
Large Industrial
Industrial (Unreg Voltage)
Industrial General Service
Irrigation
Very Large Industrial
[Basic Service Charge]
$6.00
$7.50
$10.00
$10.00
$30.00
$30.00
$30.00
$5.00
$125.00
CP at 213-14.
Grays Harbor County PUD bills the basic service charges to all customers with connected
or metered services, regardless of whether the customer uses any electricity during the billing
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period. During the years at issue here, Grays Harbor County PUD received revenues from basic
service charges and has requested refunds of privilege tax paid on such revenues in the following
amounts:
Tax Year
2000
2001
2002
2003
2004
Year Tax Paid
2001
2002
2003
2004
2005
Amount
$3,553,414
$4,975,477
$5,527,424
$5,496,175
$5,643,157
Refund
$ 76,043
$106,475
$73,675
$118,287
$120,763
CP at 215.2
Proceedings Leading to Appeal
Under RCW 54.28.030, on or before March 15th of every year, the Districts must file
annual reports with the Department detailing the revenues and costs of their electric energy
operations for the preceding calendar year. The Department then computes the privilege tax
under RCW 54.28.020 based on the annual report that the Districts submit. Thereafter, the
Department notifies each district of the amount of privilege tax owed by June 1 of the calendar
year.
The Districts filed claims against the Department in Thurston County Superior Court on
December 28, 2005, seeking partial refunds of privilege taxes they paid in the years 2001 through
2005, based on revenues derived from basic service charges. Then, on October 31, 2006, they
2
In the tax years 2003 and 2004, Grays Harbor PUD deducted basic service charges on its annual
report to the Department, so it did not actually pay privilege tax on these revenues in the
following years, 2004 and 2005. The Department subsequently assessed the privilege tax for
these years on November 11, 2005. And Grays Harbor PUD paid the outstanding tax on
December 6, 2005. The refund amounts shown in the chart above include the privilege taxes that
Grays Harbor PUD ultimately paid in late 2005.
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moved for summary judgment. Following briefings and a hearing, the trial court issued a letter
opinion on October 22, 2007.
The trial court granted partial summary judgment in favor of the Districts. It held that the
basic service charge was not subject to privilege tax imposed under RCW 54.28.020. Thus, the
trial court granted the Districts a refund of privilege taxes paid on those revenues. Nonetheless,
the trial court limited the refund period to three years rather than five years the Districts sought.
It also reserved for trial the issue of the amount of refunds owed to each district for trial.
Thereafter, the Districts and the Department agreed on the refund amounts for the three
year period allowed by the trial court. The parties signed an agreed order and judgment on
January 18, 2008. Under the order, Clark County’s refund for the years of 2003 through 2005
totaled $935,590. Grays Harbor’s refund for the years of 2003 through 2005 was $309,580.
Neither judgment amount accrued interest because the three-year statute of limitations did not
provide for the payment of interest on such refunds. See RCW 4.16.080(3) (statute limiting
certain actions to three years, including “an action upon a contract or liability, express or implied,
which is not in writing, and does not arise out of any written instrument”).
The Department filed a timely appeal, challenging the trial court’s order granting summary
judgment in the Districts’ favor. The Districts follow with a timely cross-appeal, in which they
challenge the trial court’s limitation of refunds to three years rather than five.
ANALYSIS
I. Standard of Review
We review a grant of summary judgment de novo, and view the facts and reasonable
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inferences from those facts in the light most favorable to the nonmoving party. Overton v.
Consol. Ins. Co., 145 Wn.2d 417, 429, 38 P.3d 322 (2002). We consider summary judgment
appropriate where “there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” CR 56(c).
In addition, we review questions of law, including statutory construction, de novo. City of
Pasco v. Pub. Employment Relations Comm’n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992).
When called on to interpret a statute, our fundamental obligation is to give effect to the
legislature’s intent. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4
(2002). “[I]f the statute’s meaning is plain on its face, [we] must give effect to that plain meaning
as an expression of legislative intent.” Campbell & Gwinn, 146 Wn.2d at 9. The plain meaning
of a statute may be discerned “from all that the Legislature has said in the statute and related
statutes which disclose legislative intent about the provision in question.” Campbell & Gwinn,
146 Wn.2d at 11.
We may not add words where the legislature has chosen to exclude them. Rest. Dev., Inc.
v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003). We adhere to the rule of expressio
unius est exclusio alterius, or specific inclusions exclude implication. Black’s Law Dictionary
661 (9th ed. 2009). In other words, if a statute specifically designates the things on which it
operates, we infer that the legislature intended all omissions. In re Pers. Restraint of Bowman,
109 Wn. App. 869, 875, 38 P.3d 1017 (2001), review denied, 146 Wn.2d 1001 (2002). Finally,
only when a statute is ambiguous do we resort to principles of statutory construction, legislative
history, and relevant case law to assist our interpretation. Cockle v. Dep’t of Labor & Indus., 142
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Wn.2d 801, 808, 16 P.3d 583 (2001).
Here, the parties agree that chapter 54.28 RCW is unambiguous. Therefore, we need not
resort to principles of statutory construction, legislative history, and case law to assist our
interpretation. See Cockle, 142 Wn.2d at 808. We need only look to the statute’s plain words
and related statutes to decipher legislative intent about the provisions at issue. See Campbell &
Gwinn, 146 Wn.2d at 11.
II. Gross Revenue From the Sale of Electric Energy
The crux of this case rests on whether the basic service charges billed and collected by the
Districts are “gross revenue” and thus subject to the privilege tax imposed under RCW
54.28.020(1)(a). The Department maintains that the basic service charge squarely falls into the
statutory definition of “gross revenue.” Conversely, the Districts maintain that the basic service
charges do not qualify as “gross revenue” under the statute. Based on the plain language of the
statute, we hold that the basic service charges billed and collected by the Districts do not fall
under the definition of “gross revenue” set forth in RCW 54.28.011.
RCW 54.28.020 grants the Department the authority to impose on every public utility
district “a tax for the act or privilege of engaging within this state in the business of operating
works, plants or facilities for the generation, distribution and sale of electric energy.” RCW
54.28.020(1). Under the circumstances here, the tax imposed is “[t]wo percent of the gross
revenues derived by the district from the sale of all electric energy which it distributes to
consumers who are served by a distribution system owned by the district.” RCW 54.28.020(1)(a)
(emphasis added). “Gross revenue” means “the amount received from the sale of electric energy
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excluding any tax levied by a municipal corporation upon the district pursuant to RCW
54.28.070.” RCW 54.28.011. The amounts collected from the “sale of all electric energy” make
up the gross revenue subject to privilege taxes under RCW 54.28.020(1)(a).
The statutory scheme does not define “sale of all electric energy.” There is, however,
uncontested evidence in the record that the measurement for the sale of electric energy is
electrical power, which generally is expressed in kilowatt hours.
Likewise, the undisputed
evidence establishes that the Districts adhere to this practice.
This measure for the sale of electric energy corresponds to the common dictionary
definition of the words. A “sale” is “a contract transferring the absolute or general ownership of
property from one person or corporate body to another for a price (as a sum of money or any
other consideration).” Webster’s Third New International Dictionary 2003 (2002) (emphasis
added). “Electric” means “relating to, or produced by electricity.” Webster’s, supra, at 731.
And “energy” is “the capacity of acting, operating, or producing an effect.” Webster’s, supra, at
751.
Therefore, the “sale of electricity” is a contract transferring the absolute or general
ownership of property, i.e., electrical power or kilowatt hours, from the Districts to their
customers for a price.
The Districts do not charge their consumers the basic service charges for the ownership or
use of kilowatt hours. The basic service charges are imposed regardless of whether customers use
kilowatt hours. It is undisputed that the Districts impose the basic customer charge regardless of
whether the customer actually used electricity, or electric energy, in any given billing period.
Stated another way, the Districts impose the customer service charge for the right to receive
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electric energy and not for the energy itself. The basic service charges are not associated with the
transfer of property, i.e., electric energy.
Thus, because the basic service charges are not
associated with the transfer of electric energy, under the plain language of the statute those
charges are not derived from the “sale of all electric energy.” See RCW 54.28.020(1)(a).
The Supreme Court’s recent decision in HomeStreet, Inc. v. Dep’t of Revenue, 166 Wn.2d
444, 210 P.3d 297 (2009), supports this holding. HomeStreet originated mortgage loans and then
sold or securitized the loans to secondary lenders. HomeStreet, 166 Wn.2d. at 448. HomeStreet
retained the right to service some of the loans it sold, and retained a portion of the interest on
those loans as a service fee. HomeStreet, 166 Wn.2d. at 447-48, RCW 82.04.4292 provides for a
statutory deduction from the business and occupation (B&O) tax of RCW 82.04.220 for
“‘amounts derived from interest received on’” investments or loans primarily secured by first
mortgages or trust deeds.” HomeStreet, 166 Wn.2d. at 449 (quoting RCW 82.04.4292). After
an audit, the Department ordered HomeStreet to pay the B&O tax on the amounts retained for its
services because they were not derived from interest.
HomeStreet, 166 Wn.2d. at 450.
HomeStreet paid the amounts owed and then sued the Department for a refund of the B&O tax,
and the trial court granted the Department’s motion for summary judgment. HomeStreet, 166
Wn.2d. at 450. This court affirmed, holding that the income, while broadly derived from interest,
was due to HomeStreet only because of its contractual relationship with the loan purchaser for
servicing the loan. HomeStreet, Inc. v. Dep’t of Revenue, 139 Wn. App. 827, 843, 844, 162 P.3d
458 (2007), rev’d, 166 Wn.2d 444, 210 P.3d 297 (2009).
The Supreme Court granted review and reversed, holding that the amounts at issue were
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“derived from interest” because the borrowers paid the money as interest on amounts loaned by
HomeStreet. HomeStreet, 166 Wn.2d.at 453-54. The court found relevant only the source from
which the interest was derived, not the reason the money is received or taken from a source.
HomeStreet, 166 Wn.2d.at 454.
Our conclusion is consistent with HomeStreet’s application of the use of the term “derived
from.” Here, the Districts must pay tax on amounts “derived from” the sale of electric energy.
RCW 54.28.020(1)(a). As in HomeStreet, the only relevant concern is the source from which the
Districts received the basic fee. The Districts charge the basic service fee not in connection to the
sale of electricity, but for basic services provided. Customers pay the fee regardless of electricity
consumed. The Districts calculate the amount of the basic service fee based on the type of
customer (business, residential, industrial), not on the customer’s use of electricity. Therefore,
under HomeStreet’s application of the term “derived from,” the basic service fee is not derived
from the sale of all electric energy.
Nevertheless, the Department urges us to reason that because the amount of the basic
charge is based on, or related to, the amount of the electrical energy the customer uses, these
costs are associated with the cost of providing electrical energy and therefore should be included
in the Districts’ gross revenue for the purposes of privilege taxation under RCW 54.28.020(1)(a).
But what the Department is essentially asking us to do is to add the words “related to” or
“associated with” to the plain meaning of the statute. Such an interpretation cannot be permitted
under the plain language of RCW 54.28.020(1)(a). Rest. Dev., Inc., 150 Wn.2d at 682.
Furthermore, our review of the entire statutory provision at issue supports our conclusion.
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RCW 54.28.020(1) states in full:
There is hereby levied and there shall be collected from every district a tax for the
act or privilege of engaging within this state in the business of operating works,
plants or facilities for the generation, distribution and sale of electric energy. With
respect to each such district, except with respect to thermal electric generating
facilities taxed under RCW 54.28.025, such tax shall be the sum of the following
amounts: (a) Two percent of the gross revenues derived by the district from the
sale of all electric energy which it distributes to consumers who are served by a
distribution system owned by the district; (b) five percent of the first four mills per
kilowatt-hour of wholesale value of self-generated energy distributed to consumers
by a district; (c) five percent of the first four mills per kilowatt-hour of revenue
obtained by the district from the sale of self-generated energy for resale.
(Emphasis added.)
Contrary to the Department’s contention, the plain language of RCW 54.28.020(1) does
not support the proposition that the basic service charges should be included as gross revenues for
purposes of computing the privilege tax. The measure of privilege tax imposed is “gross revenues
derived . . . from the sale of all electric energy . . . distribute[d] to consumers.”
RCW
54.28.020(1)(a) (emphasis added). The measure of privilege tax imposed in subsection (b) is “the
first four mills per kilowatt-hour of wholesale value of self-generated [electric] energy.” RCW
54.28.020(1)(b) (emphasis added). Similarly, the measure of privilege tax imposed in subsection
(c) is “the first four mills per kilowatt-hour of revenue . . . from the sale of self-generated
[electric] energy for resale.” RCW 54.28.020(1)(c) (emphasis added). Thus, all three privilege
taxes imposed under RCW 54.28.020 are measured by electric energy.3 Next, the Department
urges us to consider various bills introduced between 2001 and 2006 to decipher the legislative
3
Subsection (b) and (c) likely refer specifically to kilowatt hours because they pertain to selfgenerated energy. See RCW 54.28.020(b), (c).
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intent of RCW 54.28.020(1)(a). But these proposed bills failed. Moreover, we need not consider
legislative history when, as the parties have agreed here, the statute is unambiguous. Cockle, 142
Wn.2d at 808. Accordingly, the Department’s reliance on proposed bills is not relevant to our
analysis.
Finally, the Department cites substantial case law to support its contention that it properly
imposed privilege taxes on the basic service charge under RCW 54.28.020(1)(a). But we need
not evaluate case law to assist in interpreting an unambiguous statute. Cockle, 142 Wn.2d at 808.
In sum, under its plain language, RCW 54.28.020(1)(a) does not impose a privilege tax on
basic service charge fees. The trial court properly found that there were no genuine issues of
material fact as to the meaning of RCW 54.28.020(1)(a). Moreover, the trial court properly held
that the Districts are entitled to a partial refund of the privilege taxes paid on the basic service
charges. And, the trial court properly entered partial summary judgment in the Districts’ favor.
III. Statute of Limitations
On cross-appeal, the Districts claim that the trial court erred when it limited their privilege
tax refund award to three years under RCW 4.16.080(3). They contend that the trial court should
have instead awarded them five years of refunds under RCW 82.32.060.4
4
The Department
RCW 82.32.060 states in pertinent part:
(1) If, upon receipt of an application by a taxpayer for a refund . . . it is determined
. . . that within the statutory period for assessment of taxes, penalties, or interest
prescribed by RCW 82.32.050 any amount of tax, penalty, or interest has been
paid in excess of that properly due, the excess amount paid within, or attributable
to, such period shall be credited to the taxpayer’s account or shall be refunded to
the taxpayer, at the taxpayer’s option. . . . [N]o refund or credit shall be made for
taxes, penalties, or interest paid more than four years prior to the beginning of the
calendar year in which the refund application is made or examination of records is
completed.
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responds, alleging for the first time, that the trial court lacked subject matter jurisdiction to issue a
refund of public utility district privilege taxes under chapter 82.32 RCW. The Department is
correct: The five-year statute of limitations does not apply here and the trial court lacked subject
matter jurisdiction to grant refunds under chapter 82.32 RCW.
Specifically, the Districts have failed to show that (1) the Department breached its duty to
establish regulations or (2) the Department’s general administrative provisions, chapter 82.32
RCW, apply to public utility district privilege tax assessment and collection procedures.
A. Administrative Procedure Act Statute of Limitation
During oral argument, the Department made a belated assertion that the Districts have no
available remedy. It contended that the Districts’ only available remedy was to challenge the
taxation by means of the Administrative Procedure Act (APA), chapter 34.05 RCW.
This
argument fails.
To begin, generally issues not raised in the trial court may not be raised for the first time
on appeal. RAP 2.5(a). Neither party raised the issue of remedies available under the APA
below; therefore, we need not address the merits of the argument.
But even if we were to address the merits of the Department’s belated APA argument, we
cannot. The Department argues that because its assessment and imposition of the tax on or about
May 1st of every year is an “‘agency action’” under the APA, the APA establishes the exclusive
means of judicial review of the Department’s action. See Reply Br. of Appellant at 3 n.3.
Nevertheless, the Department fails to recognize the strict procedural and notice requirements that
an agency must comply with under the APA. Indeed, there is scant information in the record
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showing whether the Department took any agency action subject to the APA or whether the
Department complied with any notice requirements subject to the APA. Significantly, the record
does not include the Department’s original assessment enumerating the amount of taxes that the
Districts owed under RCW 54.28.020(1)(a). There is simply no indication that either party
complied with the requirements under the APA at any point during the controversy. Likewise,
there is no indication that the Districts were remotely aware that the APA allegedly governed the
Department’s tax assessment and imposition, as the Department now contends.
Based on the record, we cannot analyze whether the tax assessments are subject to the
APA. Therefore we cannot address the Department’s argument that the Districts’ lone remedy
for excessive payment under RCW 54.28.020 was through the APA.
B. Five-Year Statute of Limitation
Also during oral argument, the Districts made a belated contention that we should apply
the last antecedent rule of statutory construction to resolve the statute of limitations issue. Based
on the last antecedent rule, the Districts ask us to conclude that chapter 82.32 RCW is the default
statute governing all refunds of taxes paid, unless otherwise specified. We decline to do so.
1. The Last Antecedent Rule
The last antecedent rule of statutory construction provides that unless a contrary intent
appears in the statute, a qualifying phrase refers to the last antecedent, and a comma before the
qualifying phrase is evidence that the phrase applies to all antecedents. In re Sehome Park Care
Ctr., Inc., 127 Wn.2d 774, 781-82, 903 P.2d 443 (1995); State v. Madrid, 145 Wn. App. 106,
115, 192 P.3d 909 (2008); State v. Hogan, 145 Wn. App. 210, 217, 192 P.3d 915 (2008). Courts
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do not apply the last antecedent rule inflexibly or take it as always binding. In re Pers. Restraint
of Smith, 139 Wn.2d 199, 205, 986 P.2d 131 (1999). Here, the Districts assert that under the last
antecedent rule, the refund provisions found in Title 82.32 RCW apply to privilege taxes imposed
under RCW 54.28.020.
RCW 82.32.010 states:
The provisions of this chapter shall apply with respect to the taxes imposed under
chapters 82.04 through 82.14 RCW, under RCW 82.14B.030(3), under chapters
82.16 through 82.29A RCW of this title, under chapter 84.33 RCW, and under
other titles, chapters, and sections in such manner and to such extent as indicated
in each such title, chapter, or section.
(Emphasis added.)
Applying the last antecedent rule, the Districts contend that “in such manner and to such
extent as indicated in each such title, chapter, or section” refers only to the manner and extent in
which taxes are imposed under other titles, chapters, and sections. It does not refer to or modify
the provisions covered by chapter 82.32 RCW.
Therefore, the Districts conclude that the
provisions of chapter 82.32 RCW apply to the statutes specifically listed in RCW 82.32.010 in
addition to “other titles, chapters, and sections” under which the Department collects taxes
including those taxes imposed under RCW 54.28.020(1)(a). See RCW 82.32.010; In re Sehome
Park, 127 Wn.2d at 781-82; Madrid, 145 Wn. App. at 115; Hogan, 145 Wn. App. at 217.
While applying the last antecedent rule would indeed lead to the Districts’ desired result,
the implications of such construction are difficult to quantify. Under the Districts’ construction,
every tax imposed by the Department would be subject to the excise tax general administrative
provisions set forth in chapter 82.32 RCW, unless otherwise specified. Chapter 82.32 RCW
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includes numerous provisions, addressing everything for excess payment of taxes (RCW
82.32.060), disclosure of return or tax information (RCW 82.32.330), purchaser’s cause of action
for over-collected sales or use tax (RCW 82.32.525), among many others. See generally chapter
82.32 RCW.
The Districts have failed to provide argument or authority addressing the implications of
applying chapter 82.32 RCW to other titles under which the Department imposes taxes outside of
the excise tax statutes, Title 82 RCW. For example, if we accept the Districts’ argument, will
chapter 82.32 RCW implicate the probate taxes that the Department imposes under Title 11
RCW? Will the application of chapter 82.32 RCW as the default administrative statute implicate
the taxes that the Department imposes on the insurance industry under Title 48 RCW?
The potential ramifications of declaring chapter 82.32 RCW the default general
administrative statute governing the Department for all taxes it imposes would be extensive and
pervasive. Moreover, those ramifications are simply too great to quantify based on the argument
and record that the parties have provided to us. Therefore, we decline the Districts’ invitation to
apply the last antecedent rule as a basis to conclude that chapter 82.32 RCW is the default statute
governing all the Department’s imposition of all taxes, including the taxes imposed under RCW
54.28.020(1)(a), unless otherwise specified.
2. Legislative Intent
Nevertheless, if we found any indication that the legislature intended for chapter 82.32
RCW to govern RCW 54.28.020, the Districts may invoke the five-year statute of limitations set
forth in RCW 82.32.060. Despite the Districts’ valiant efforts, they have failed to establish such
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connection reasonably exists.
The privilege taxes imposed under chapter 54.28 RCW (1) are not included in the
delineated statutes subject to chapter 82.32 RCW; (2) are not associated by reference to the
delineated statutes subject to chapter 82.32 RCW; and (3) do not impose taxes “under other titles,
chapters, and sections in such manner and to such extent as indicated in each such title, chapter,
or section.” See RCW 82.32.010.
First, chapter 82.32 RCW does not explicitly apply to the privilege taxes imposed under
chapter 54.28 RCW. See RCW 82.32.010. RCW 82.32.010 does not explicitly list chapter 54.28
among those chapters to which the Department’s general administrative provisions apply. RCW
82.32.010.
Second, chapter 54.28 RCW is not associated with any of the taxes imposed under the
statutes delineated in RCW 82.32.010.
The Districts claim that they are “persons” and
“taxpayers” under Title 82; therefore, they are entitled to relief under the Department’s general
administrative provisions enumerated in chapter 82.32 RCW.
Br. of Resp’ts at 58.
This
reasoning is inherently flawed because the definitions they rely on apply only to the specific
chapters in which they are found. For example, RCW 82.04.030 defines a “person” to include a
“municipal corporation.” The plain language of the statute, however, limits the applicability of the
definition to that chapter. See RCW 82.04.010 (“Unless the context clearly requires otherwise,
the definitions set forth in the sections preceding RCW 82.04.220 apply throughout this
chapter.”) (emphasis added.)
If the Districts were challenging payment of business and
occupation taxes under chapter 82.04 RCW, then certainly they could assert a claim under the
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general statutory provisions. See RCW 82.32.010. But that is not the case at hand.
Nor is it the case that because the Districts are “taxpayers” under RCW 82.02.010(3), they
are entitled to recovery of overpaid privilege taxes under the general administrative provisions.
The Districts note that for the purposes of Title 82, “‘taxpayer’ includes any . . . corporation . . .
liable for any tax or the collection of any tax hereunder, or who engages in any business or
performs any act for which a tax is imposed by this title.” RCW 82.02.010(3) (emphasis added).
Based on this definition, they assert that they qualify as taxpayers and thus may invoke the
procedures enumerated in RCW 82.32.180 to seek a refund of the privilege taxes that they paid.
But again, the plain language of RCW 82.02.010(3) limits application of that definition to taxes
imposed under Title 82. It is of no significance that the Districts qualify as taxpayers under RCW
82.02.010(3) because they do not seek refunds of taxes imposed under Title 82. They seek
refunds of privilege taxes imposed under an entirely different title, RCW 54.28.020.
The Districts have failed to establish a connection between the privilege taxes imposed
under RCW 54.28.020 and any of the delineated taxes to which the Department’s general
administrative provisions apply. Likewise, notwithstanding their last antecedent rule argument,
the Districts have failed to establish that the privilege taxes imposed under RCW 54.28.020 are
among the taxes imposed “under other titles, chapters, and sections” subject to the general
administrative provisions enumerated in chapter 82.32 RCW. See RCW 82.32.010.
Nowhere in chapter 54.28 RCW did the legislature indicate the privilege taxes imposed
therein are subject to the general administrative refund procedures set forth in chapter 82.32
RCW. There is one reference to Title 82 in chapter 54.28 RCW:
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Interest at the rate as computed under RCW 82.32.050(2) shall be added to the tax
hereby imposed from the due date until the date of payment. The tax shall
constitute a debt to the state and may be collected as such.
RCW 54.28.060.
This single reference to Title 82 does not support the Districts’ argument that the privilege
taxes imposed under RCW 54.28.020 are subject to the general administrative procedures
enumerated in RCW 82.32.060. From the statute’s plain language, the legislature specifically
included a reference to the interest rate under RCW 82.32.050(2). But it did not include any
reference to RCW 82.32.060 granting aggrieved taxpayers under Title 82 refund claims.
Therefore, we hold that the legislature intended to omit a reference to the refund procedures
enumerated in RCW 82.32.060 and we decline to add words to the statute where the legislature
has chosen to exclude them.5
In re Bowman, 109 Wn. App. at 875 (expression unius est
exclusion alterius).
Finally, the fact that the legislature did not categorize the PUD privilege tax under Title 82
is significant. Title 82 expressly addresses excise taxes. See Title 82 RCW. There is no
indication that the legislature intended for the excise tax general administrative procedures found
in chapter 82.32 RCW to apply to PUD privilege taxes imposed under RCW 54.28.020.
The Districts have failed to show that the legislature intended the general administrative
refund procedures set forth in RCW 82.32.060 to apply to taxes that the Department imposes
5
Notably, the legislature has indicated that remedies are available under chapter 82.32 RCW in
statutes not listed in RCW 82.32.010. See RCW 35.102.080 (municipal business and occupation
tax); RCW 82.48.090 (aircraft excise tax); RCW 82.49.065 (watercraft excise tax); RCW
82.50.170 (travel trailers and campers excise tax); RCW 82.65A.900 (3) (intermediate care
facilities for the mentally retarded).
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under RCW 54.28.020(1)(a).
C. Three-Year Statute of Limitation
The Districts are left with one final remedy. Before the trial court, the Department argued
that the five-year statute of limitation enumerated in chapter 82.32 did not apply to the Districts’
refunds. CP at 576. Instead, the Department argued that “[i]f a refund were appropriate, the
correct limitations period would be three years from the date the tax payments were made. The
three years is based upon RCW 4.16.080(3).” CP at 576 (footnote omitted); see also CP at 11
(Department’s answer admitting the Department has a remedy available under RCW 43.01.072).
RCW 4.16.080 states in pertinent part:
The following actions shall be commenced within three years:
....
(3)
Except as provided in RCW 4.16.040(2), an action upon a contract or
liability, express or implied, which is not in writing, and does not arise out of any
written instrument.
RCW 4.16.080(3).
As the Department noted below, courts have interpreted RCW 4.16.080(3) to apply to
actions seeking recovery of invalid taxes. See Henderson Homes, Inc. v. City of Bothell, 124
Wn.2d 240, 248, 877 P.2d 176 (1994) (“This court has consistently held that the 3-year statute of
limitations, RCW 4.16.080(3), applies to actions to recover invalid taxes.”), superseded by statute
on other grounds as recognized in James v. County of Kitsap, 154 Wn.2d 574, 587, 115 P.3d
286 (2005) (recognizing that the Land Use Petition Act, RCW 36.70C.030(1) establishes uniform
procedures by its own terms and is the exclusive means of land use decisions).
Additionally, the Department noted before the trial court that “there is statutory authority
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to provide refunds of privilege taxes when there has been an error of fact or law.” CP at 575. To
support this proposition, the Department relied on RCW 43.01.072, quoting it in full:
Whenever any law which provides for the collection of fees or other payments by a
state agency does not authorize the refund of erroneous or excessive payments
thereof, refunds may be made or authorized by the state agency which collected
the fees or payments of all such amounts received by the state agency in
consequence of error, either of fact or of law as to: (1) The proper amount of such
fee or payments; (2) The necessity of making or securing a permit, filing,
examination or inspection; (3) The sufficiency of the credentials of an applicant;
(4) The eligibility of an applicant for any other reason; (5) The necessity for the
payment.
RCW 43.88.170 contains nearly identical language:
Whenever any law which provides for the collection of fees or other payment by an
agency does not authorize the refund of erroneous or excessive payments thereof,
refunds may be made or authorized by the agency which collected the fees or
payments of all such amounts received by the agency in consequence of error,
either of fact or of law. The regulations issued by the governor pursuant to this
chapter shall prescribe the procedure to be employed in making refunds.
Although there is no relevant published authority interpreting RCW 43.01.072, there is
one relevant published authority specifically interpreting RCW 43.88.170.
In that case, the
Attorney General’s Office (AGO) addressed whether a person was entitled to a refund of the
motor vehicle excise tax when the applicable statute, RCW 82.44.120, did not authorize a refund
of the tax under the facts of the case. 1966 Op. Att’y Gen. No. 98. The AGO opined that the
statute “applies when there is not a specific provision for refunds in the particular statute
authorizing the collection of the tax or fee.” 1966 Op. Att’y Gen. No. 98, at 6. In other words,
the AGO opined that RCW 43.88.170 applied to tax refunds.
The Department agreed with and indeed asserted this argument before the trial court.
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Likewise, in their reply brief in support of their motion for summary judgment, the Districts
argued that if chapter 82.32 RCW was not applicable, then RCW 43.01.072 and/or RCW
43.88.170 apply. The Districts first questioned the applicability of RCW 43.01.072 and RCW
43.88.170 in a footnote they included in their cross-appeal. And the Department first questioned
the applicability of those statutes in a footnote in its joint response and reply brief. Because
neither party raised this issue before the trial court, we may refuse to consider it on appeal. RAP
2.5(a). Furthermore, we may decline to address the merits of this issue because placing an
argument of this nature in a footnote is, “at best, ambiguous or equivocal as to whether the issue
is truly intended to be part of the appeal.” State v. Johnson, 69 Wn. App. 189, 194 n.4, 847 P.2d
960 (1993).
Accordingly, we decline to address the merits of whether the Thurston County Superior
Court had subject matter jurisdiction to refund any excess privilege tax payments under RCW
43.88.170 and/or RCW 43.01.072. Moreover, we decline to address the merits of whether the
three-year statute of limitation under RCW 4.16.080(3) applies to the Districts’ claims seeking
recovery of allegedly invalid privilege tax payments under RCW 54.28.020.
RAP 2.5(a);
Johnson, 69 Wn. App. at 194 n.4. Thus, the trial court had proper subject matter jurisdiction and
it did not err when it applied a three-year statute of limitation.
D. Interest
Finally, the trial court did not award the Districts interest because interest is not available
under RCW 43.88.170 and RCW 43.01.072.
We have been unable to find any case law or statutes under which we may award interest
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and costs to the Districts. The right to bring suits against the State must be exercised in the
manner provided by statute. Washington Const. art. II, § 26. In this case, there is no statutory
authority to award interest and costs. See RCW 43.01.072; RCW 43.88.170.
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Affirmed.
Bridgewater, P.J.
We concur:
Hunt, J.
Quinn-Brintnall, J.
29
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