Tennessee Gas Pipeline Company v. Carole Keeton Rylander, Comptroller of Public Accounts for the State of Texas And John Cornyn, Attorney General for the State of Texas
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00029-CV
Tennessee Gas Pipeline Company, Appellant
v.
Carole Keeton Rylander, Comptroller of Public Accounts of the State of Texas; and John
Cornyn, Attorney General of the State of Texas, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. 98-09521, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
This appeal involves a claim for tax exemptions related to aircraft operated by a common
carrier pipeline. See Tex. Tax Code Ann. ' 151.328 (West 2002). Tennessee Gas Pipeline Company
(ATennessee Gas@) filed a claim for a refund of sales and use taxes paid in association with the maintenance
and repair of its aircraft. When its refund claim was denied, Tennessee Gas filed suit against Carole Keeton
Rylander, Comptroller of Public Accounts of the State of Texas, and John Cornyn, Attorney General
of the State of Texas (collectively the AComptroller@). After the parties filed competing motions for
summary judgment, the district court affirmed the Comptroller=s denial of the refund claim by granting
summary judgment in favor the Comptroller. We will affirm the district court=s judgment.
THE CONTROVERSY
The tax code provides that sales tax will be imposed on the sale of all taxable items. Tex.
Tax Code Ann. ' 151.051 (West 2002). The tax code further provides that a use tax will be imposed on
the storage, use, or other consumption in this state of a taxable item purchased from a retailer for storage,
use, or other consumption within this state. Id. ' 151.101. But the tax code also creates certain
exemptions to the imposition of sales and use taxes, including exemptions for persons using aircraft as a
certificated or licensed carrier of persons or property. The section of the tax code relevant to Tennessee
Gas=s claim provides, in relevant part, as follows:
(a) Aircraft are exempted from the taxes imposed by this chapter if:
(1) sold to a person using the aircraft as a certificated and licensed carrier of persons
or property
***
(b) Repair, remodeling, and maintenance to aircraft, including an engine or other
component part of the aircraft, operated by a person described by Subsection (a)(1)
or (a)(2) are exempted from the taxes imposed by this chapter.
Id. ' 151.328. Tennessee Gas is authorized by the Federal Energy Regulatory Commission (AFERC@) to
operate a common carrier pipeline. In conjunction with its operation as a common carrier pipeline,
Tennessee Gas owns and operates two aircraft that it uses to transport employees and executives for
business purposes and to inspect pipelines and rights-of-way. Between January 1, 1994 and May 31,
1996, Tennessee Gas either paid or accrued and remitted $83,472.57 in Texas sales and use taxes on
purchases of parts and repair and maintenance services for its aircraft. Tennessee Gas filed a claim for a
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refund on those taxes with the Comptroller, claiming an exemption pursuant to section 151.328 of the tax
code.
The outcome of Tennessee Gas=s claim for an exemption is not determined solely by the
tax code. A rule promulgated by the Comptroller interpreting the section=s exemptions is also relevant to
Tennessee Gas=s appeal. See 34 Tex. Admin. Code ' 3.297 (2001) (ARule 3.297@). In applying for its
refund, Tennessee Gas attempted to rely on Rule 3.297, which defines Alicensed and certificated carrier@ to
include, among others, a pipeline operator authorized to operate as a common carrier by the appropriate
state or federal agency. See id. ' 3.297(a)(1). As a common carrier pipeline authorized by FERC,
Tennessee Gas argued it was a licensed and certificated carrier under section (a)(1) of Rule
3.297. As such, Tennessee Gas claimed that it was qualified under section (d)(2) of the RuleCthe
section interpreting and applying the exemptions for aircraft repair and maintenance created by
section 151.328 of the tax code. See id. ' 3.297(d)(2).
In ruling on Tennessee Gas=s claim for a refund, the Comptroller rejected Tennessee
Gas=s conclusion that the exemptions under Rule 3.297(d) are available to all licensed and certificated
carriers identified by Rule 3.297(a)(1). The Comptroller interpreted the exemptions in tax code
section 151.328 and Rule 3.297(d) to be limited to air common carriers certificated by the Federal
Aviation Administration (AFAA@). The Comptroller found that Tennessee Gas does not use its
aircraft as common-carrier devices to transport persons or property for hire and is not licensed or
certificated as an air common carrier by the FAA. Therefore, the Comptroller denied the refund
claim. Tennessee Gas filed suit in district court to contest the Comptroller=s decision.
3
In the district court, the parties stipulated to the facts and filed competing motions for
summary judgment. The district court denied Tennessee Gas=s motion, granted the Comptroller=s
motion, and rendered judgment accordingly. Tennessee Gas filed a motion for a new trial that was
overruled by operation of law. Tennessee Gas now appeals.
In this appeal, Tennessee Gas complains that by granting the Comptroller=s motion for
summary judgment, the trial court erred in affirming the Comptroller=s decision to deny Tennessee Gas=s
refund claim. Tennessee Gas argues that Rule 3.297 is unambiguous and that the Comptroller=s present
interpretation conflicts with the way it has interpreted the rule in the past. Furthermore, Tennessee Gas
contends that the Comptroller=s decision to interpret Rule 3.297 in a manner that precludes Tennessee Gas
from receiving an exemption improperly amended the Rule, thus violating the rule-making requirements of
the government code.
DISCUSSION
When the language of a statute is unambiguous, courts must seek the intention of the
Legislature as found in the plain meaning of the words used. Retama Dev. Corp. v. Texas Workforce
Comm=n, 971 S.W.2d 136, 139 (Tex. App.CAustin 1998, no pet.). But in construing a statute, courts
may consider, regardless of whether the statute is ambiguous, the administrative construction of the statute.
Tex. Gov=t Code Ann. ' 311.023(6) (West 2002). The Comptroller=s interpretation of a statute it is
charged with enforcing is entitled to serious consideration, so long as the construction is reasonable and
does not contradict the plain meaning of the statute. See Tarrant Appraisal Dist. v. Moore, 845 S.W.2d
820, 823 (Tex. 1993).
4
Administrative rules are ordinarily construed in the same way as statutes and an agency=s
interpretation of its own rule is entitled to deference by the courts. Lewis v. Jacksonville Bldg. & Loan
Ass=n, 540 S.W.2d 307, 310 (Tex. 1976); Public Util. Comm=n v. Gulf States Utils. Co., 809 S.W.2d
201, 207 (Tex. 1991). Greater deference is given to an agency=s interpretation that is longstanding and
applied uniformly. Amarillo Indep. Sch. Dist. v. Meno, 854 S.W.2d 950, 954 n.6 (Tex. App.CAustin
1993, writ denied).
To succeed in its appeal, Tennessee Gas must overcome the heightened burden placed on
claimants of a tax exemption. Statutory exemptions from taxation are strictly construed and the claimant
bears the burden of clearly showing that it falls within the exemption. North Alamo Water Supply Corp. v.
Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991). All doubts as to the availability of an
exemption must be resolved in favor of the taxing authority. State v. Glass, 723 S.W.2d 325, 327 (Tex.
App.CAustin 1987, writ ref=d n.r.e.) (citing Bullock v. National Bancshares Corp., 584 S.W.2d 268,
274 (Tex. 1979)).
Tennessee Gas first complains that the Comptroller improperly denied Tennessee Gas=s
exemption claim because the Comptroller arbitrarily and capriciously disregarded the clear and
unambiguous language of Rule 3.297. In support of its argument, Tennessee Gas cites Public Utility
Commission v. Gulf States Utilities Co. for the proposition that if an agency fails to follow the clear,
unambiguous language of its own regulation, its action must be reversed as arbitrary and capricious. Gulf
States Utils. Co., 809 S.W.2d at 207. The Comptroller responds that its construction of tax code section
151.328 is both reasonable and consistent with the language contained in Rule 3.297. The Comptroller
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further argues that because its interpretation is consistent with the statute and rule in question, this Court
should accept its interpretation regardless of the existence of other reasonable interpretations.
Rule 3.297 begins with the following language defining who qualifies as a licensed and
certificated carrier:
(c) Carriers Generally
(1) Licensed and certificated carrier--A person authorized by the appropriate United
States agency or by the appropriate state agency within the United States to
operate an aircraft, vessel, train, motor vehicle, or pipeline as a common or
contract carrier transporting persons or property for hire in the regular course of
business.
34 Tex. Admin. Code ' 3.297(a)(1) (2001). Tennessee Gas points to the specific inclusion of pipelines
among those common carriers who can qualify as licensed and certificated carriers. Given its authorization
by FERC to operate as a common carrier pipeline, Tennessee Gas argues that it is a licensed and
certificated carrier for purposes of section (a)(1) of the Rule. Tennessee Gas then looks to a separate
section of the Rule on exemptions for aircraft, which reads as follows:
(d) Licensed and certificated carriers, flight schools, and flight school instructors
***
(1) The following items or services used in the repair, remodeling, or maintenance of
aircraft or aircraft engines or component parts by or for a person qualified under
subsection (a)(1) or (c)(7) of this section are exempt if purchased by the aircraft
owner or operator, by the aircraft manufacturer, or by a repair facility.
(A) Machinery, tools, supplies, and equipment used directly and exclusively in
the repair, remodeling, or maintenance. Included in the exemption is
equipment used to sustain or support safe and continuous operations or to
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keep the aircraft in good working order by preventing its decline, failure,
lapse, or deterioration, such as battery chargers or diagnostic equipment.
(B) Repair, remodeling, and maintenance services.
Id. ' 3.297(d). Tennessee Gas emphasizes that section (d)(2) of the Rule extends to a person
qualified under section (a)(1) of the Rule. Tennessee Gas argues that it is plainly a licensed and
certificated carrier under section (a)(1) and that section (d)(2) plainly extends to anyone who is a
licensed and certificated carrier under section (a)(1) of the Rule. Thus, Tennessee Gas argues, it
qualifies for the exemption it seeks. The Comptroller responds by emphasizing that section (a)(1) of the
Rule requires that in order to be a licensed and certificated carrier, the common carrier must be authorized
by the appropriate agency. For purposes of the aircraft exemption, the Comptroller continues, that agency
is the FAA, not FERC. The Comptroller further contends that it has never granted an aircraft exemption to
a pipeline common carrier that is licensed by FERC.
In our interpretation of Rule 3.297, we need not determine whether Tennessee
Gas=s interpretation of the Rule is reasonable; we need only determine whether the Rule can
reasonably be read in the manner the Comptroller has chosen to interpret it. See Hammerman &
Gainer, Inc. v. Bullock, 791 S.W.2d 330, 333 (Tex. App.CAustin 1990, no writ). In making that
determination, we cannot consider the above-cited sections of the Rule in isolation, but must consider how
those sections operate within the Rule as a whole and in relation to the section of the tax code to which they
pertain. See Sharp v. House of Lloyd, 815 S.W.2d 245, 249 (Tex. 1991) (in determining meaning of
statute, court must consider entire act, its nature, and its objects).
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The Comptroller designed Rule 3.297 to apply to multiple sections of the tax code. Rather
than promulgating a separate rule to interpret each statute pertaining to common carriers and sales and use
taxes, the Comptroller drafted Rule 3.297 in a manner that allows the Rule to apply to all sections of the tax
code involving sales and use tax exemptions for common carriers.1 Section (a) of Rule 3.297 applies to
carriers generally and establishes the criteria for qualifying as a licensed and certificated carrier for different
types of common or contract carriers of persons or property. See 34 Tex. Admin. Code ' 3.297(a)
(2001). The remaining sections of the Rule pertain, for the most part, to specific types of common carriers.
Consistent with the Rule=s structure, the Comptroller has reasonably interpreted section (d), which involves
exemptions for aircraft, as applying to a specific type of carrierCnamely, air carriers. See id. ' 3.297(d).
1
Rule 3.297 applies to tax code section 151.328 (aircraft); section 151.329 (ships and other
vessels); section 151.330 (interstate shippers); and section 151.331 (trains).
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The Comptroller=s interpretation of Rule 3.297 does not deny effect to Tennessee Gas=s
status as a licensed and certificated carrier because it can still qualify for exemptions in the tax code intended
to be available to common carrier pipelines or to licensed and certificated carriers generally. As the
Comptroller points out, by virtue of its status as a common carrier pipeline, Tennessee Gas may qualify for
an exemption under section 151.330(h) of the tax code, which corresponds to section (a)(4) of Rule 3.297.
See Tex. Tax Code Ann. ' 151.330(h); 34 Tex. Admin. Code ' 3.297(a)(4).2 After carefully
considering the structure of the Rule as a whole and its function as an application and interpretation of
several provisions of the tax code, we find the Comptroller=s interpretation consistent with the language of
the Rule and, thus, not an arbitrary and capricious application of that Rule.
Tennessee Gas also endeavors to show that the Comptroller=s present interpretation of Rule
3.297 is inconsistent with the way it has interpreted the Rule in the past. However, all the cases and
decisions cited by Tennessee Gas involving Rule 3.297(d) involve parties seeking to claim an
exemption as or through a certificated air common carrier and thus do not support the inference that
the Rule was intended to extend the exemption to other types of common carriers. This Court most
recently considered a challenge to the interpretation of Rule 3.297 in Quorom Sales, Inc. v. Sharp,
2
Sales tax is not due on the sale of taxable items to a common carrier if such items are shipped to a
point outside this state using the purchasing carrier=s facilities under a bill of lading, and if such items are to
be used by the purchasing carrier in the conduct of its business outside the State of Texas. 34 Tex. Admin.
Code ' 3.297(a)(4) (2001).
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where we deferred to the Comptroller=s interpretation of the statutory language and affirmed the
Comptroller=s ruling that the purchaser of an aircraft, rather than the aircraft itself, must be a licensed
and certificated carrier by the FAA in order for the sale to be exempt from sales tax. Quorom Sales,
910 S.W.2d 59, 64 (Tex. App.CAustin 1995, writ denied). In support of its argument that the
Comptroller=s interpretation of Rule 3.297 in this case differs from its standing interpretation,
Tennessee Gas points to our statement in Quorom Sales that Awe therefore adopt the Comptroller=s
administrative construction of section 151.328(a)(1) to provide sales tax exemptions on aircraft only
when the purchaser of an aircraft is a