~L-rP-r IN THE. SUPREME COURT OF THE STATE OF MISSISSIPPI JONES COUNTY SCHOOL DISTRICT AND MISSISSIPPI DEPARTMENT OF REVENUE, ET AL VERSUS APPELLANTS NO.2011-CA-00712 AND MISSISSIPPI STATE OIL AND GAS BOARD, ET AL APPELLEES ON APPEAL FROM THE CHANCERY COURT OF THE SECOND JUDICIAL DISTRICT OF JONES COUNTY, MISSISSIPPI CAUSE NO. 2008-0767, CONSOLIDATED WITH CAUSE NO. 2008-0533 MISSISSIPPI DEPARTMENT OF REVENUE'S COMBINED APPELLANT'S REPLY BRIEF James L. Powell, Mississippi Department Post Office Box 22828 Jackson, Mississippi 39225 Phone: (601) 923-7412 Facsimile: (601) 923-7423
TABLE OF CONTENTS TABLE OF AUTHORITIES....ii INTRODUCTION... 1 ARGUMENT... 2 The Venture Defendants, as operators, are the statutory taxpayers not the School District or Sixteenth-Section Land Trust..... 2 Neither the School District nor the Sixteenth-Section Land Trust is exempted from severance taxes....3 The imposition of severance taxes upon a Sixteenth-Section Land Trust does not violate trusts principles....4 CONCLUSION... 6 CERTIFICATE OF SERVICE... 8
TABLE OF AUTHORITIES STATE STATUTES AND AUTHORITIES: PAGE(S) California Co. v. State o/mississippi, 74 So. 2d 856 (Miss. 1954)... 6,7 Miss. Code Ann. 27-25-501... 1,7 Miss. Code Ann. 27-25-503... 1, 2, 3 Miss. Code Ann. 27-25-506... 3,5 Miss. Code Ann. 27-25-509... 2 Miss. Code Ann. 27-25-519... 2 Miss. Code Ann. 27-25-525....4 Miss. Code Ann. 27-25-701... 1, 3, 7 Miss. Code Ann. 27-25-703... 1, 2, 3 Miss. Code Ann. 27-25-707... 2 Miss. Code Ann. 27-25-717... 2 Miss. Code Ann. 27-65-1... 2 Miss. Code Ann. 29-3-99... 5 Miss. Code Ann. 29-3-109... 5 Miss. Code Ann. 29-3-113... 5 Miss. Code Ann. 91-9-107....4 Miss. Cons!. Art. IV, 95....4 Miss. Cons!. Art. VIII, 206A....3,5 Miss. Const. Art. VIII, 211..... 4 11
INTRODUCTION The Department of Revenue (hereinafter "Department") is before the Court, in this case of first impression, appealing the lower court's finding that neither the operators, the Venture Defendants', nor the School District is liable for the severance taxes on oil and gas produced on sixteenth-section lands located within Jones County. The Department maintains the lower court erred in failing to find that 27-25-503 and 27-25-703, Miss. Code Ann., are applicable to oil and/or gas severed from sixteenth-section lands or other lands held by the public school districts of the State of Mississippi. Arguments of the School District and the Secretary of State notwithstanding, the Department is within both constitutional and statutory authority to assess taxes severance taxes on oil and gas produced on sixteenth-section lands located within Jones County because I) the Venture Defendants were the statutorily defined taxpayers, 2) there is no express statutory exemption for the School District from taxation, and 3) the imposition of the tax upon the School District does not violate the Sixteenth-Section Land Trust. Accordingly, the Department believes the Court should reverse, in part, the Final Judgment ofthe Jones County Chancery Court and find the lower court erred in determining that the severance taxes imposed by Miss. Code Ann. 27-25-501 et seq. and 27-25-701 et seq. are not owed on production of oil and gas that is allocable to a public school district's royalty interest that are owned by a public school district and affirm the Department's denial of the refund requests submitted by the School District and the Venture Defendants. I For the purposes of this brief, Venture Oil & Gas, Inc., Eagle Oil & Gas Company, Denbury Onshore, LLC, and Bean Resources, Inc. are hereinafter collectively referred to as the "Venture Defendants" and the Jones County School District and the Jones County School Board are hereinafter referred to as "Jones County" or the "School District", I
ARGUMENT THE LOWER COURT ERRED IN REVERSING THE MISSISSIPPI STATE TAX COMMISSION'S DENIAL OF THE REFUND REQUESTS OF THE JONES COUNTY SCHOOL DISTRICT AND VENTURE OIL The Venture Defendants, as Operators, are the Statutory Taxpayers not the School District or Sixteenth-Section Land Trust At all times relevant to the instant appeal, the Venture Defendants were the "persons" engaged in the business of producing or severing oil from the land for sale, transport, storage, profit or for commercial use. Consequently, they were the parties upon whom the severance taxes were assessed. See Miss. Code Ann. 27-25-503(1) and 27-25-703(1). As such, they were the "taxpayers" who were liable for the tax imposed by the severance tax laws. Miss. Code Ann. 27-25-509 and 27-25-707. As confirmed by counsel for the School District during the hearing held May 13, 2010, the School District was simply a passive mineral (royalty interest) owner. 2 (TR 60 at 16-20). The Department continues to believe the reliance of the School District and the Secretary of State on the California opinion is misplaced. California Co. v. State of Mississippi, 74 So. 2d 856 (Miss. 1954). Although the tax liability could potentially flow to the royalty owners if the operators do not pay, neither the School District nor the State enjoys any immunity from severance taxation. Pursuant to Miss. Code Ann. 27-25-519 and 27-25-717, the severance tax laws are administered in conjunction with the Mississippi Sales Tax Laws which are codified as Miss. Code Ann. 27-65-1 through 27-65-243. Under the sales tax laws, the taxpayer is the person who is required to pay the tax to the State of Mississippi which means the person registered to collect sales tax who is also required to file sales tax returns and pay the tax collected to the State 2 For the purposes of this brief, the Department will use "CP" to reference the Clerk's Papers (record on appeal) by page number, "RE" to reference the record Excerpts by page number, and "TR" to indicate a citation to the transcript oflhe hearing held May 13,2010. 2
of Mississippi. In the instant matter, it is the Venture Defendants, and they only, who satisfy this definition. Neither the School District nor the Sixteenth-Section Land Trust is Exempted from Severance Taxes There is no express statutory exemption from taxation provided for school districts and sixteenth-section lands in the oil and natural gas severance tax statutes. It is only where a deliberate purpose of the legislature to grant an exemption is expressed in clear and unequivocal terms that a claim to an exemption can be maintained. Section 27-25-503(2), Miss. Code Ann., provides that "the [severance 1 tax is hereby levied upon the entire production in this state, regardless of the place of sale or to whom sold or by whom used... " Sections 27-25-701(i) and 703 contain similar language referencing the severance of natural gas. Without an express exemption, the Department is bound to enforce the severance tax laws as written. Certainly, the legislature could have expressly exempted the sixteenth-section lands from the taxes had it chosen so to do. It did not, instead, it expressly provided that it would levy annual privilege taxes upon every person engaging or continuing within this state in the business of producing, or severing oil and natural gas from below the soil or water for sale, transport, storage, profit or for commercial use. As addressed previously in its initial brief, the State does periodically tax itself, (i.e. contractor's tax and excise tax). It is also clear from a reading of the tax statutes that when the State wants to exempt itself or any of its political subdivisions from taxation, it expressly does so by statute (i.e., ad valorem tax, motor vehicle privilege tax, sales tax and insurance premium tax). The Mississippi State Legislature acknowledged that oil and gas resources under stateowned lands were taxable as late as 1985 when it passed 27-25-506, Miss. Code Ann. to recognize Article 8, Section 206A of the Mississippi State Constitution which was ratified by the 3
electorate of Mississippi in November, 1986. In passing such legislation, the state legislature expressly recognized that the state paid severance taxes. In other words, the legislature in 1985 recognized the state was not exempt from taxation. The Imposition Of Severance Taxes Upon A Sixteenth-Section Land Trust Does Not Violate Trust Principles The Secretary of State and the School District spend the bulk of their briefs addressing this issue. Counsel for the School District provides the Court with an excellent background of public school land trusts and sixteenth-section lands and the Department recognizes their unique nature. The Department concedes that the "Trust" issue was not a point of consideration during the administrative appeal process as the alleged "sanctity" of the Sixteenth-Section Land Trust was not raised until the appeal was before the lower court. Despite the arguments of the School District and the Secretary of State and the concerns of the lower court, the imposition of severance taxes upon the sixteenth-section land trust does not violate common law trusts principles. The fact that an oil or gas royalty owner is a trust rather than an individual or corporation does not, in and of itself, shield that royalty owner from paying taxes. As noted herein, the School District admits it was a passive royalty owner. (TR 60 at 16-20). The severance tax laws, as currently implemented by the Department, violate neither Art. IV, 95 nor Art. VIII 211 of the Mississippi State Constitution. Trusts are specifically included in the definition of "persons" who may be "taxpayers" for gas severance tax purposes under Miss. Code Ann. 27-25-525(e) and (i). Trustees are given authority under the Uniform Trustees' Powers law, Miss. Code Ann. 91-9-107(t) "[tjo pay taxes, assessments, compensation of the trustee, and other expenses incurred in the collection, care, administration and protection of the trust." The failure to do so would violate a trustee's fiduciary duties by subjecting the trust to additional fees and interest, liens, levies and other collection measures. 4
With the Court's indulgence, the Department restates from its earlier brief that pursuant to Miss. Code Ann. 29-3-99 (1972) the school districts of the State of Mississippi are authorized to lease lands owned by the school district for oil, gas and mineral exploration upon tenns and conditions the districts deem appropriate. Royalties and other revenue received under such leases are to be deposited in the school district's principal fund. Miss. Code Ann. 29-3- 113. Pursuant to 29-3-109, Miss. Code Ann., the expendable funds derived from sixteenthsection lands is to be deposited for the benefit of the school district of the township where the sixteenth-section lands are located. Pursuant to this section, these funds are not to be spent except for the education of the children in that district, "or as otherwise may be provided by law." The people of the State of Mississippi ratified Section 206A of Article 8 of the Mississippi Constitution on November 4, 1986. The constitutional amendment created an Education Improvement Trust Fund. Subsequently, the State Legislature of Mississippi enacted 27-25- 506, Miss. Code Ann. to implement the article and address the distribution of the funds collected through the depositing the state's share of oil severance taxes and gas severance taxes derived from oil and gas resources under state-owned or from severed state-owned minerals. This law appears to clearly designate an alternative expenditure of the School District's trust funds under 29-3-109, Miss. Code Ann. "as otherwise may be provided by law." Section 206A(b)(ii) expressly exempts income or revenue derived from sixteenth-section lands or from minerals severed from sixteenth-section lands from deposit into the Education Trust Fund. However, it does not expressly exempt the severance tax revenues from deposit into the state treasury for use, as the legislature deems appropriate. The School District's net royalties are protected trust funds, not their gross receipts before the severance taxes are deducted. (TR 89). As noted in its earlier brief, the lower court's judgment and finding of facts contained an apparent double standard, on the one hand, the lower 5
court believed the withholding of the taxes from the School District's royalties, for which there is no express exemption, "violated" the School District "trust." (TR 89). However, the lower court found below that the School District was liable for the maintenance fees assessed by the Mississippi Oil and Gas Board and by its order, allowed the School district's "trust" to be "violated". The lower court found the School District's "Trust" benefitted from the services provided by the Oil and Gas Board. (CP 1103, RE 29). As with the benefits the lower court found from the Board, the School District and School District's "Trust" benefit from the public services provided by the severance taxes it pays the State of Mississippi. A portion of those taxes is returned directly to the county by the State Treasurer for use as determined by the local governing authorities. Finally, the lower court's concerns regarding the use or misuse of the funds in the Education Improvement Trust Fund (TR at 72, 75-76), as addressed by the School District and the Secretary of State, are concerns over actions taken outside the control of the Department. The Department is statutorily responsible for the assessment and collection of the taxes imposed by the State and the tax laws are presumed to be constitutional. All tax collections made by the Department are deposited into the State Treasury. The expenditure of these funds is left to the discretion of the legislature. CONCLUSION The lower court erred in finding the school district not liable for payment of severance taxes on oil and gas production from sixteenth-section lands. In doing so, it ignored clear precedent regarding taxation and exemptions, the fact that the State of Mississippi does regularly tax itself, and misapplies trust law and the express law regarding sixteenth-section trust property. The Mississippi Department of Revenue respectfully prays that the Court, upon due consideration of the submissions, will reverse, in part, the Final Judgment of the Jones County 6
Chancery Court and find the lower court erred in determining that the severance taxes imposed by Miss. Code Ann. 27-25-501 et seq. and 27-25-701 et seq. are not owed on production of oil and gas that is allocable to a public school district's royalty interest that are owned by a public school district. The Department prays further the Court will affirm the Department's denial of the refund requests submitted by the Jones County School District and the Venture Defendants. In the alternative, should the Court find that neither the School District nor the Sixteenth- Section Land Trust is liable for severance taxes; the Department prays the Court will affirm the lower court's finding that the three-year statute of limitations is applicable against the Venture Defendants and limit the recovery to refund requests accordingly. Respectfully submitted this the 18th day of June, 2012. By: Powell, Mississippi Department Post Office Box 22828 Jackson, Mississippi 39225 Phone: (601) 923-7412 Facsimile: (601) 923-7423 7
CERTIFICATE OF SERVICE I, James 1. Powell, attorney of record for the Mississippi Department of Revenue, hereby certify that I have this day caused to be served a true and correct copy of the foregoing Reply Brief of the Appellant, via First Class United States mail, postage prepaid, to the following: Terry 1. Caves, Esquire CAVES & CAVES, PLLC Post Office Drawer 167 Laurel, Mississippi 39441 Counsel for Plaintiffs C. Ted Sanderson, Jr., Esquire Glenn Gates Taylor, Esquire COPELEND, COOK, TAYLOR & BUSH, P.A. Post Office Box 6020 Ridgeland, Mississippi 39158-6020 Counsel for Bean Resources, Inc. and Venture Oil & Gas, Inc. J. Jeffrey Trotter, Esquire ADAMS AND REESE, LLP Post Office Box 24297 Jackson, Mississippi 39225-4297 Counsel for Denbury Onshore, LLC W. Eric West, Esquire MCDAVID, NOBLIN & WEST, PLLC 248 East Capitol Street, Suite 840 Jackson, Mississippi 39201 Counsel for Eagle Oil & Gas Company William G. Cheney, Jr., Esquire Senior Attorney, Public Lands Division Mississippi Secretary Of State's Office 700 North Street Jackson, Mississippi 39201 Howard O. Leach, Esquire Mississippi State Oil & Gas Board 500 Greymont A venue, Ste. E Jackson, Mississippi 39202 8
Honorable Franklin C. McKenzie, Jr. Post Office Box 1961 Laurel, Mississippi 39441 This the 18th day of June, 2012. {/7:? A Jatlles"L. Powell 9