Vermont Golf Association, Inc. v. Department of Taxes

Robinson, J.,

¶ 29. concurring. I concur in the majority’s conclusion based on the evolution of the language of 32 V.S.A. § 9817 since its inception, as well as its application in practice through that time, that the statute does, indeed, establish a so-called “pay-to-play” regime in connection with appeals to the superior court of decisions of the Commissioner relating to the sales and use tax. I write separately, however, because I believe the majority’s conclusion that the plain language of the statute compels this result fails to consider the statute as a whole, and thus gives short shrift to the internal contradictions in the text of the statute.

¶ 30. In order to determine the intent of the Legislature, we “must examine and consider fairly, not just isolated sentences or phrases, but the whole and every part of the statute, . . . together with other statutes standing in pari materia with it, as parts of a unified statutory system.” State v. Jarvis, 146 Vt. 636, 637-38, 509 A.2d 1005, 1006 (1986) (quotation omitted). “We have long presumed that ‘all language in a statute or regulation is inserted for a purpose,’ and that we ‘must not allow a significant part of a statute to be rendered surplusage or irrelevant.’ ” In re Miller, 2009 VT 36, ¶ 14, 185 Vt. 550, 975 A.2d 1226 (citation omitted).

¶ 31. The majority is right that 32 V.S.A. § 9817(a) requires an aggrieved taxpayer who files an appeal to give security, although the subsection in its current form does not expressly state that payment of the security is a prerequisite to maintaining an appeal, or that the penalty for failure to post security is dismissal. Meanwhile, 32 V.S.A. § 9817(c) provides, in relevant part, that the Commissioner may assess a deficiency after the appeal period runs “notwithstanding that a notice of appeal regarding the deficiency has been filed by the taxpayer, unless the taxpayer, prior to the time the notice of appeal is filed, has [provided security].” That provision expressly contemplates and addresses the scenario in which a taxpayer has filed an appeal, but has not provided security. If provision of security is an essential prerequisite to maintaining an appeal, then this portion of 32 V.S.A. § 9817(c) is surplusage. On the other hand, in order to give effect *238to this language in subsection (c), we would have to conclude that the statute is not “pay-to-play,” thereby rendering the second sentence of subsection (a), which requires an appellant to give security, pointless — or at least quite oddly-placed.

¶ 82. In short, the statute as currently written is internally inconsistent. As a result of this ambiguity, we are called upon to conduct the more searching exploration of legislative intent, including the history and evolution of the statute, ably undertaken by the majority in this case. MacDonough-Webster Lodge No. 26 v. Wells, 2008 VT 70, ¶ 6, 175 Vt. 382, 834 A.2d 25 (“In circumstances where the purpose and significance of a statute are unclear, we look to the statute’s legislative history to shed light on its meaning.” (quotations omitted)). I write separately in the hope that express acknowledgment of the ambiguity in 32 V.S.A. § 9817 may lead to clarifying revisions.

¶ 33. I am authorized to state that Chief Justice Reiber joins this concurrence.