(dissenting).
I respectfully dissent.
It would not be helpful to the public, to industry, or to the legal profession to describe the methods used in- the potash' industry to produce “fines.” The problems presented are: (1) Are the-fines taxable? (2) If they are taxable, what is the proper method of determining the taxable value of these fines which have no commercial market value ? These “fines” are processed and used by International Minerals & Chemical Corporation (IMC). as feed material to create a marketable product.
A conglomeration of statutes is involved. An Act Relating to State Tax Commission, § 72-6-1 to § 72-6-20, including § 72-6-7.1, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.), the Property Appraisal Department Act, § 72-25-1 to § 72-25-21, N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.), the Severance Tax Act, § 72-18-1 to § 72-18-4, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.).
One principle of statutory construction must be remembered and emphasized. It is stated in Field Enterprises Education Corporation v. Commissioner of Revenue, 82 N.M. 24, 474 P.2d 510 (Ct.App.1970), as follows:
Any doubtful meaning or intent of a tax statute must be resolved against the State and in' favor of the taxpayer. We cannot extend "the applicability- of ' the statute beyond a clear import of the language used therein.
(1) Are the "Fines” Taxable?
Sections 72-6-7.1 B and D read as follows :
Potash mineral property shall be valued by the state tax commission as follows: * * * * * *
B. The commission shall value the production from potash mineral property at fifty per cent [50% ] of market value of the output of the property for the prior year. . . . The valuation of such production shall be in lieu of valuations of minerals in place or of any interest therein. [Emphasis added.]
* * * * * *
D. The method of valuation herein prescribed is exclusive, and no other valuation, assessment, or tax based thereon, shall be made, fixed or levied against potash mineral property for purposes of ad valorem taxation. Any other ad valor-em tax on potash mineral property is void. [Emphasis added.]
Section 72-6-7.1, supra, is a “tax relief package.” See 10 Natural Resources Journal 415, July 1970. We assume that “fines” are a portion of the “output” from production of potash mineral property.
The above statute says that “market value” is the exclusive method of valuation.
The majority opinion states that “The exchange value is the ‘market value’ in this situation.” Kaiser Steel Corporation v. Property Appraisal Department, 490 P.2d 968 (Ct.App.), decided September 3, 1971. Kaiser said that exchange value:
“ . . .is determined by the demand for it in relation to the supply, and is proved, when possible, by actual sales. . . . ” The steel mill’s demand for the mine’s supply shows an exchange value exists, but that demand does not determine what the value is. The fact that the steel mill took almost 96% of the mine run coal in 1968 and over 91% of the mine run coal in 1969, does not show that it took, or would have taken, the coal as a willing buyer. .
If that rule were applied to IMC, this case would be reversed. The majority did not apply it.
There is no valid distinction between “market value” for sales purposes and market value for tax purposes. McCrory Stores Corp. v. City of Asbury Park, 89 N.J.Super. 234, 214 A.2d 526 (1965).
Section 72-25-5, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.) provides:
When not otherwise determined by law, and without regard to ownership, the taxable value of property shall be determined by methods in general use. [Emphasis added.]
Note that this section seeks methods of valuation other than market value. Is this contrary to § 72-6-7.1(D), supra?
Section 72-25-6(A), N.M.S.A.1953 (Repl. Vol. 10, pt. 2, Supp.) provides:
Unless a specific method for appraising property is provided by law, the department shall adopt regulations for appraising each kind of property in the state. Such regulations shall contain findings of fact upon which the method of appraisal is based and a detailed description of the method of appraisal of such property. [Emphasis added.]
Section 72-25-8(A) provides that “No regulation may be adopted, amended or repealed without a public hearing before the director.”
From the foregoing statutes, how do we decide whether “fines” are taxable since they have no commercial market value and simply pass from one process of IMC to its plant?
There are three methods provided for determining taxable value: (1) by determining market value; (2) “by methods in general use”; and (3) by departmental regulations where no specific method is provided. These methods are in direct conflict, and they will be separately discussed and interpreted.
It requires a genius in the art of statutory construction to decide this issue.
Pursuant to § 72-6-4(1) (c), the Department shall determine the “actual value” of mineral property as defined in § 72-6-7 and § 72-6-7.1.
Under Article VIII, Section 1 of the State Constitution, the term “value” of tangible property means “reasonable cash market value” if there are sales of comparable property. If there are no comparable sales, and property has no such “market value,” then other elements may be used which furnish proper criteria for consideration in determining value of real property. Hardin v. State Tax Commission, 78 N.M. 477, 432 P.2d 833 (1967).
Since “fines” have no market value, how do we determine the elements which may be considered in determining value? None are provided by statute. The majority opinion adopted the phrase “methods in general use.”
What is meant by the words : “When not otherwise provided by law, the taxable value of property shall be determined by methods in general use”?
If we want to stretch its meaning, we can say when property has no market value, the Department can state the criteria to be furnished to determine taxable value by methods in general use. What is meant by the phrase “methods in general use”?
The phrase “in general use” is scarce in judicial decisions anywhere. In New Mexico, it is found in § 59-10-7 (B), N.M. S.A.1953 (Repl.Vol. 9, pt. 1), the safety device statute of workmen’s compensation. When we apply its meaning to “methods in general use” to determine taxable value, the phrase means “a method generally used in the particular potash industry that produces and uses ‘fines’.” See Dickerson v. Farmer’s Electric Coop., Inc., 67 N.M. 23, 350 P.2d 1037 (1960).
In Jones v. International Minerals and Chemical Corporation, 53 N.M. 127, 202 P.2d 1080 (1949), the defendant is IMC in this tax case. Justice McGhee said:
. we do not think that the use by one employer when there are three engaged in the same industry establishes the “general use” required by the statute.
In Apodaca v. Allison & Haney, 57 N.M. 315, 258 P.2d 711 (1953), Justice McGhee, in a dissenting opinion, said in effect that the burden is on the Department to establish that the general use of a method is by a majority of those engaged in the industry.
The Department found that its assessment against IMC was based on a similar assessment made against Duval Corporation. This does not constitute a majority of the industry and is not a method in general use. The Supreme Court has said that the fact that another similar industry has used a different method of severing wires “does not thereby amount to proof that the wires were safety devices in general use under the statute.” [Emphasis by the court.] Hicks v. Artesia Alfalfa Growers’ Association, 66 N.M. 165, 344 P.2d 475 (1959).
The Department has no powers by statute to roam about in the area of methods “in general use” to determine the taxable value of “fines.” It also adopted an appraisal method used under the United States Internal Revenue Code which method was not adopted in the Property Appraisal Department Act. It was set forth in a draft bill. See 10 Natural Resources Journal 415.
The “fines” were not taxable by the method used by the Department.
(2) If “Fines" are Taxable, What is the Proper Method to Determine Market Value?
Let us assume in passing that “fines” are taxable because elements can be established to determine “exchange value.” What is the proper method to use? The second method is set forth in § 72-25-6(A), supra. There is no specific method provided bylaw for appraising property, for finding the criteria by which market value can be determined. Under this situation, the Department must adopt a regulation to establish the criteria. It failed to do so. It created a formula of' its own. I-t set forth the criteria by • which it “arrived at a representative market value for the feed material.” This formula is invalid. It had a duty to establish this criteria by a regulation after a public hearing.
The majority opinion has decided that "Regulations are required for appraising ‘each kind of property’,” and “fines” do not fall' in this class:
In § 72-25-2(A), the word “appraise” is defined as follows:
“[A]ppraise” means the .method, of determining the taxable value of property for property taxation. [Emphasis added.]
Section 72-25-2 (E) says that “property” means “tangible property.” The phrase “tangible property” is not defined. “Tangible property” is that which may be felt or touched, and is necessarily corporeal, although it may be either real or personal. H. D. & J. K. Crosswell, Inc. v. Jones, 52 F.2d 880, 883 (D.C.S.C.1931). See 73 C.J.S. Property § 5.
If we apply the above definitions to § 72-25-6(A), supra, it would read:
Unless a specific method for determining the taxable value of 'tangible property for taxation is provided by law, the department shall adopt regulations for determining the taxable value of tangible property for taxation of each kind of tangible property in the state. [Emphasis added.]
There is no specific method for determining taxable value.
The only remaining question is: Are “fines” a kind of tangible property?
"Fines” are a kind of tangible property. They are corporeal and can be felt and touched. They stand in a class of their own' — a mineral class. “Each kind of tangible property” means each class whether called minerals, realty, goods or vegetables, etc. There is doubt between members of the court as to the meaning of “each kind of property.” Therefore, this phrase should be construed against the state and in favor of IMC.
This court does not have the judicial power to emasculate the ordinary language of statutes in order to increase taxation on industry. The power to tax “fines” rests in the regulatory power of the Department. After it has first determined that “fines” have no market value, then it may appraise the taxable value by a formula adopted by way of regulation.
The statute does not define “market value.” It is interesting to note that the 1971 New Mexico Legislature amended the Severance Tax Act by defining the “Gross Value of potash products.” Section 72 — 18— 2.1, N.M.S.A.1953 (Repl.Vol. 10, pt. 2, Supp.).
Since the Department. failed to adopt a formula regulation, the fines are not taxable.
However, IMC contends that it should pay a tax on “fines” pursuant to a previous formula used by the State Tax Commission. Since it desires to pay a tax, I would conclude that this tax should be paid.