concurring specially.
[¶ 33] This is yet another case in which rules and regulations adopted by the Tax Commissioner might well have prevented the current proceedings. See, e.g., Koch Oil Co. v. Hanson, 536 N.W.2d 702 (N.D. 1995); True v. Heitkamp, 470 N.W.2d 582, 593 (N.D.1991) (VandeWalle, J., concurring and dissenting); Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 127 (N.D.1987) (VandeWalle, J., concurring in part and dissenting in part); Rocky Mountain Oil & Gas Ass’n v. Conrad, 405 N.W.2d 279, 284 (N.D.1987) (VandeWalle, J., dissenting).
[¶ 34] Unitary business taxation, the Uniform Division of Income for Tax Purposes Act, as found in N.D.C.C. ch. 57-38.1, the water’s edge method codified in N.D.C.C. ch. 57-38.4, treating foreign tax credits as foreign dividends are at best complex, generally ambiguous and at times inherently incomprehensible concepts except, perhaps, to their progenitors. It is in just such a situation the department charged with administering the law, in this case the Tax Commissioner, should enact rules and regulations to explain in writing the Commissioner’s interpretation of the law. Concededly, reducing to writing the interpretations necessary to administer the concepts in these laws might be a challenge but the rulemaking process contemplated by N.D.C.C. ch. 28-32 may very well serve to inform the Commissioner as well as those whose businesses are governed by the unitary laws. And, while the majority opinion suggests it “might have been preferable for the Commissioner to use the rulemaking procedure” similar suggestions to the Commissioner have been ineffective as noted by the cases cited above.
[¶ 35] I am particularly concerned that in this instance the change in the “internal” policy was not announced until after the audit in this case, in other words after the tax returns had been filed and during the course of the audit. Although, according to the auditor, the change was made in 1995 after a review of the legislative history, it was not announced until the notice of determination was issued in 2000. That necessarily means the tax returns would be incorrect when filed. I do not understand the logic of such a procedure.
[¶ 36] I have previously dissented in those instances in which the Commissioner has changed an interpretation without recourse to the rulemaking process. I do not do so here, because a rule or interpretation of a statute cannot contradict the meaning and intent of the statute being implemented by the interpretation. I am convinced that the majority opinion correctly determines legislative intent from the legislative history cited therein and I therefore concur in the result. But, how much simpler it would have been if, in 1995, the Commissioner had adopted rules to this effect, notwithstanding the Water’s Edge Tax Guide “is not published for distribution to taxpayers, but is an internal document used by the auditors” and that the corporate income tax auditor “was the only person at the Tax Department performing corporate income tax audits at the time.” It would be better if the taxpayers, the objects of the audit, were also informed of the interpretation, preferably ahead of the time the tax returns are filed. While such a procedure might not result in headlines as to how much in additional taxes had been recovered as a result of the audit, it would make the work of the auditor, the taxpayers and the courts, much less complicated.
[¶ 37] Gerald W. Vande Walle, C. J.