Honorable George H. Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Sir: Opinion No. O-4025
Re: Gas Production Tax Claim
against Canadian River Gas
Company - determination of
“:~-?arkct value” of natural
I,&:; w~.~erArticle 7047b,
l>rior to May I, 1941,
We are in receipt of your I<:lt<:r ~1 S&~iilber 23, 1941, which
reads as follows:
“We have recently made an investigation of the
books and records of the Canadian River Gas Company.
This company is the producer of gas which supplies
through affiliates the gas used in Amarillo and Dalhart,
Texas; Denver and Colorado Sprin!;s, Colora~~l I; an(l.,
one-fourth of the requirements of tli ~,~,;
:, ~:
We believe that this opinion, which we expressly approve,
fully answers the question submitted by you. You will note that in the
last four lines of the above quotation from the opinion we advise you as
follows: “and you are advised that if the gas has no market value at
the well you may determine its market value at the well by taking the
actual market value where there 1s a market and deducting the cost of
taking the gas to that market.”
We believe from the facts set forth in your letter and the
attached report of Mr. Brown that acting under this opinion method six
as set forth on page 2 of the report of Mr. Brown would be the proper
i-?BthorI to follow in determining the tax liability of Canadian River Gas
C~...>any under Article 704713 prior to May 1, 1941, however we will
discuss the proposition further.
As we understand the report sent to us by Mr. Brown,
Canadian River Gas Company is a part of an intricate corporate struc-
ture consisting of a maze of corporations the ownership of all of which
can ultimately be traced to the same interests and these interests sub-
stantially control the production, transportation and ultimate sale of the
major portion of all gas taken from the Panhandle gas field. These
inter-woven corporations operate under contracts with themselves re-
sulting in the sale of gas from the Panhandle field at prices ranging
from net cost to seven or eight cents per thousand cubic fee. We fur-
ther understand from Mr. Brown’s report that the result of this control
of the production, transportation and ultimate sale of practically all of
the gas produced in the Panhandle field is that sc~me independent well
operators must sell their gas for as low as one-half cent per thousand
. -
Honorable George H. Sheppard, page 5 (No. o-4025)
cubic feet by virtue of the fact that they have no market and no trans-
portation system to dispose of such gas. Assuming that these facts are
true and could be sustained to the satisfaction of a jury we are con-
strained to the belief that same would justify a finding that there is
actually no established market value at the well in this field as is
usually the case in oil and gas fields in Texas. In fact such has been
judicially determined in the case of Consolidated Gas Utilities Corpora-
tion v. Thompson and Texoma Natural Gas Company v. Thompson, re-
ported in 14 Fed. Supp. 318, wherein the court in speaking of gas pro-
duced in the Panhandle gas field for light and fuel purposes says the
following on page 324 of the opinion:
“As to gas for these uses, there is not, there
never has been, a real market in the field, for except
for a small quantity consumed in operating wells and
plants, gas for this use is not sold in the field, It is
transported on contracts to distant points for delivery
at the burner tips. The commission’s proration order
was therefore based not upon market demand in the field,
but upon the amount required by plaintiffs and other pipe
lines for supplying their customers at distant points,”
Therefore in view of the facts before us and in view of this
decision, and, assuming that the fact that there is no market value for gas
at the well in the field in question can be established, we will discuss the
question presented from such standpoint.
In the case of Atchison T. & S. F. Ry. Co, v. Nation and
Slavens, 92 S. W. 823, the court of Civil Appeals sets out the rule for
determining market value where there is no market value at the particular
place in question. The following is a quotation from said case:
“The rule is well settled that where the question
is what was the value of property at a particular place
and there was no market value there, proof may be given
of such value at other places with the cost of transporta-
tion in order to enable the jury to deduce the value at the
place in question.” Citing Sutherland on Damages (2nd
Ed.), Section 445.
Again in the case of Kerr v. Blair, 105 S. W. 548, the court
in discussing the proposition of determing the market value of rice at a
particular place when it was shown that there was no’market value at
that place says the following:
“The above testimony would show that the
rice was in the shock to be threshed by defendant, and
if they failed to thresh it as they contracted to do, plain-
tiff’s damages would be measured by reference to its mark-
et value as threshed at that place or at the nearest place
where it had a market value. If the evidence showed it
had a market value at Bay City, a few miles distant, it
was sufficient to afford a basis for measuring damages.”
8.
- .
Honorable George H. Sheppard, page 6 (No. O-4025
In the case of Dale Oil & Refining Company v. the City of
Tulia, 25 S. W. (2d) 671, the court in determining the market value of oil
has the following to say:
“Where there has been no sale of personal pro-
perty or a commodity of a given kind in the particular
place involved, then its mark& vlaue may be shown by
proving such value at the nearest market and adding
thereto the costs of transportation.”
Having determined that there is no market value for gas at
the well in the Panhandle gas field the gross receipts of the producer less
the cost of getting the gas to market, whatever that ultimate market may
be, seems to us to be the basis upon which to determine the market value
of gas at the well for purposes of taxation under Article 7047b. Arriving
at this conclusion the question is then presented whether or not the tax
levied under Article 7047b would constitute a tax on property outside
the State of Texas or wguld result in a burden on inter-state commerce
and hence become repugnant to the Constitution of the United States.
We do not believe that this would be the result simply because of the
fact that the Comptroller in determining the market value at the well
would have to ascertain the ultimate sale price of the gas in other states
and the cost of its transportation thereto by virtue of the fact that a sub-
stantial portion of the gas produced is transported and ultimately sold in
Northern and Eastern and in some cases Western States.
In the case of American Manufacturing Company v. City of
St. Louis, 250 U. S. 459, which was a case in which the taxpayer manu-
factured furniture in St. Louis part of which went into storage in New
York before being s.old in that State. The court held that such sales in
another state were exempt from the local occupation tax, and that that
tax was not on sales, and that the tax did not consti~tute a burden on
interstate commerce.
In the case of Hope Natural Gas Company v, Hal~l, by the
Supreme Court of Appeals of West Virginia, reported in 135 S. E. 582,
the court, in construing an occupation tax on among other things the produc-
tion of natural gas, the statute providing:
“The meansure of this tax is the value of the
entire production in this state, regardless of the place
of sale or the fact that deliveries may be made to
points outside the state.”
held, that the sale price necessarily included the cost of delivery saying
that such sale price would not reflect the worth of the commodity in the
State, but the worth within the State plus the cost of transportation.
In the Hope Natural Gas Company case, supra, the court
in the opinion says the following:
Honorable George H. Sheppard, page 7 (NO. O-4025
“In Wallace v. Hines, 253 U. S. 66, 40 Sup. Ct. 435,
(64 L. Ed. 782), the Supreme Court Said:
“‘?~‘The only reason for allowing a state to look
beyond its borders when it taxes the property of foreign
corporations is that it may get the true value of the
things within it; when they are a part of an organic
system of wide extent, that giires them a value above
what they otherwise would possess. The purpose is
not to expose the heel of the system to a mortal dart --
not, in other words, to open to taxation what is not
within the state.’
“By parity of reasoning, we can as well say that
the only reason for permitting consideration of the price
plaintiff receives for delivering gas through its trans-
mission system to another state is to get the true value
of the gas within the state before it enters into inter-
state commerce, and that purpose is not to open to
taxation interstate commerce itself.”
The Hope Natural Gas Company case, supra, involved a
state of facts quite similar to the facts presented in this situation, that is,
the chief business of the plaintiff in error was the productian and purchase
of natural gas in West Virginia and the continuous and uninterrupted trans-
portation of this through pipelines in Pennsylvania and Ohio, where it is
sold, delivered and consumed. The corporation owned 3 178 producing
wells located in 25 counties of West Virginia, from which it-took in the
year ending June 30, 1925, more than twenty-five billion cubic feet of gas.
Most of this passed into interstate commerce by continuous movement
from the wells. We are confronted with practically the same situation
here. Practically all of the production of gas from the Panhandle field
is controlled by the intricate corporate structure as above set out and
a major portion of this production is transmitted through transmission
lines all controlled by the same interests to the various markets in other
states.
In the case of Cumberland Pipeline Company v, Common-
wealth, by the Court of Appeals of Kentucky, reported in 15 S. W..(Zd) 280-286,
which was a case involving a license or franchise tax on those engaged in
the production of crude petroleum in the State of Kentucky which tax provided
for the payment annually of one per cent of the market value of all crude
petroleum produced and further provided in Section 1 thereof that the State
Tax Commission must find the market value from monthly reports showing
sales of such crude petroleum and from such other reports and information
as it may secure and further providing that the Commission should make an
appropriate allowance for the cost of transportation from the producing
wells to the market. It was held that the value of petroleum at the wells
should be ascertained from the evidence of the market value after the oil
Honorable George H. Sheppard, page 8 (No. o-4025)
had completed its journey through the channels of commerce and had
been sold in the market. The following is a quotation from page 284
of the opinion in this case:
“It requires that the value at the wells should
be ascertained from the evidence of the market value
after the oil has completed its journey through the
channels pf a c,ommerce and has been sold in the ,market.
It is but a mea$g adopted and prescribed to find the mar- .
ket value of the oil at the well where it was produced.
There is seldom, if ever, a market at the place of pro-
ducti~on. Thor product ~,:,lu:;t bc ca.rris::l to th:: :Ilarkct:i, T;le
While Article 7047b does not provide a method for de-
termining market value ,as was provided in the Kentucky statute as
above shown, we believe that such method is but the adoption of the
rule of !~a..~to be used in determining the market value at a particular
place W~ICZILh:rc is no market value at that place. In fact on page 284
of the opinion in the Cumberland Pipeline case, supra, the court in
effect lays down this rule as follows:
“The act requires the state tax commission
to resort to the same sources for evidence that would
naturally and necessarily be selected to establish the
fact of market value if the Act were silent upon that
subject. The method is not a new one, but conforms to
the legal rules of evidence for the ascertainment of
market value. 22 C. J. 1 151, p, 187; 35 Cyc. 638;
‘Woerman v. McKinney-Guedry Co., 174 Ky. 521, 192
S. W. 684.
“The market value of a commodity is its sell-
ing price in the usual and ordinary course of business,
but, if there be no market at a particular place at
which it is desired to fix the market value, then the
market value is taken at the nearest point available,
with adjustments to care for the cost of transportation
to that market. Campbellsvllle Lumber Company v.
Bradlee & Wiggins, 96 Ky. 494, 29 S. W. 313; Log
Mountain Coal Co. v. White Oak C. Co., 163 Ky. 842,
174 S. W. 721. The plain mandate of the act of 1918
is that the tax commission shall find the market value
at the place of production by taking the actual sales
as reported from the pipeline companiss, and such
other evidence thereof as may be available, and de-
ductlng therefrom the carriage charges. The result
reached in that way is the market value of the oil
at the well. (Underscoring ours)
_. -
Honorable George H. Sheppard, page 9 (No. o-4025)
Further quoting from the opinion in the case of Cumberland
Pipeline Company v. Commonwealth, supra, on page 285 thereof, we find the
following:
“In its final analysis, the tax is measured by
the market value of the product at the places of production.
It is quite true that the value is ascertained by taking
evidence of sales in another state after the article has
been carried in interstate commerce, but the use of such
evidence is not forbidden. It is not put ‘apart in a kind of
civil sanctuary,’ where the state may not venture for facts
relevant and important in the administration of its tax laws.
Davis v. C. C. C. &St. L. R. Co., 217 U.S. 157, 30 S. Ct.
463, 54 L. Ed. 708, 27 L. R. A. (N. S.) 823, 18 Ann. Cas.
907; Baltic Mining Co. v. Mass, 213 U. S. 68, 34 S. Ct. 15,
58 L. Ed. 127. It is not possible to find the value of mineral
products at the mine where there is no market, except by
taking the value at the neare,s.t market and deductine deducting the
cost of transportation. Interstate commerce jis not affected
or burdened by the use thus made of evidence resulting from
transactions therein.
therein, There is no basis for the contention
that the tax on the producer is invalid because the amount
of the investment is ascertained by considering incidents,
facts, or results flowing from interstate commerce. Amer-
ican Mfg.
Mf C
Go. Louis
v. St. Louis. 250 U.U S.
S 460.
460 39 S. Ct. 522, 63
L. Ed. 1084.
L. Ipd84o*zthe
In the Hall case, 102 W. Vi. 272, 135 S. E.
582, affirmed 274 U U.S. 285, 47 S. Ct. 639, 71 L. Ed. 1049,
the producer and carrier of natural gas were the same
corporation, and the act levied the tax at the well based on
the entire porduction wherever sold. As the carrier was
also the producer, the result was that the selling price
corresponded closely to the gross receipts, and the act
was susceptible to the construction that the gross receipts
for the gas produced, including the interstate transportation,
was subject to the tax. The Supreme Court of Appeals of
West Virginia construed the act to exclude the cost of trans-
portation by limiting the power to tax to the place of produc-
tion. The kentucky Act of 1918 expressly required the cost
of transportation to be given proper weight, and applies by
its terms to the producer alone.” (Underscoring ours)
Let us take by way of analogy a party in Texas who is desirous
of selling a piece of antique furniture which he owns and let us assume for the
purpose of this analogy that the only market for such an article is in New York
City. The party in Texas is the owner of a moving van into which he places the
piece of furniture and transports same to New York where it is ultimately sold.
We believe that in determining the market value of this piece of furniture that
same would be the ultimate sale price less the cost of transporting it to New
York, taking into consideration all of the incidental costs of such transportation.
Honorable George H. Sheppard, page lo (No. O-4025)
From a thorough study of the cases hereinabove referred to
and the report on the operations of Canadian River Gas Company which you
have submitted to us, we are of the opinion and you are therefore advised
that the correct method to use in determining the tax liability of Canadian
River Gas Company under Article 704713 of the Revised Civil Statutes of
Texas prior to May 1, 1941, is method six as contained in the report of
Mr. Brown on page 2 thereof, which method as we understand it, is as
follows:
Take the gross receipts received for the gas
at its ultimate wholesale destination, that is, at the
first sale, where there is an established, bona fide,
market, and subtract therefrom all costs of trans-
portation and allow in addition thereto eight per cent
return on invested capital the remaining figure being
the value of the gas at the well.
The eight per cent allowance above as we understand it, is
an arbitrary figure set up by Mr. Brown, which he considers a reasonable
return on the investment, but, of course, whether same is reasonable or not
would be a matter for judicial determination.
Trustingthat theiforegtiing fully answers your;inq~utry,-we
are
Yours very truly
ATTORNEY GENERALOFTEXAS
BY
Douglas E. Bergman
Assistant
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