concurring in part; dissenting in part, with whom KAUGER, Chief Justice, joins.
¶ 1 I respectfully dissent in part because the approach taken by the majority appears to rest upon an unwarranted assumption. I would remand this proceeding to the Tax Commission for the purpose of a factual determination as described below.
¶ 2 In 1986 Eleor Corporation owned Ortloff Corporation, and Ortloff in turn owned Pro-Quip Corporation. A management group of Eleor Corporation formed TPQ Investments Corporation. The taxpayer in this case is TPQ Investments Corporation (TPQ or taxpayer). TPQ acquired Pro-Quip from Ortloff. TPQ is the taxpayer and it did not employ these employees prior to the acquisition of Pro-Quip. TPQ thus added employees to the TPQ entity.
¶ 3 The approach by the Court is, in its essence, an adoption of the Commission’s view that Pro-Quip should be treated as a continuing corporation, and the same employer of the employees both before and after the acquisition. But TPQ is a different legal entity, a different taxpayer, and a different employer of the employees after the acquisition. TPQ, the taxpayer in this case, did have new employees. The treatment of TPQ by the Court and the Tax Commission makes sense only if TPQ is an alter ego of Pro-Quip. If Pro-Quip before the acquisition was managed and directed by the management group, or its individual members, then Pro-Quip after its acquisition by TPQ could be said to be the same employer for purposes of the tax statute. For examples of alter ego analyses of this nature see Towe Antique Ford Foundation v. I.R.S., 999 F.2d 1387 (9th Cir.1993); U.S. v. Gosnell, 961 F.2d 1518 (10th Cir.1992).
¶ 4 Generally, a taxpayer has the burden of showing the erroneous nature of a tax assessment. Enterprise Management Consultants, Inc. v. State ex rel. Oklahoma Tax Com’n, 1988 OK 91, 768 P.2d 359. But alter ego status is usually a matter to be proven by the government. Pate v. U.S. Dept. of Treasury I.R.S., 949 F.2d 1059 (10th Cir.1991). See Enterprise Management Consultants, Inc. v. State ex rel. Oklahoma Tax Com’n, supra, where we said that the burden of proving the existence, nature and extent of the agency relationship rests ordinarily upon the party who asserts it. Id. 1988 OK 91 at *143¶ 5, 768 P.2d 359. The order appealed states that at the time of this acquisition none of the shareholders of TPQ owned or controlled any stock in Elcor. But no other facts relevant to the alter-ego status have been advanced by the parties.
¶ 5 The briefs contain no assertion or admission of whether the management group controlled or managed Pro-Quip prior to its acquisition. I would thus reverse the Tax Commission’s Order and remand to the Tax Commission for the purpose of producing evidence on this issue. If the management group, or the individual members thereof, controlled, directed, or managed Pro-Quip prior to the acquisition I would have no trouble drawing the same conclusion as the Court does. On the other hand, if the management group, or individual members thereof, did not control, manage, or direct Pro-Quip prior to its acquisition by TPQ, then TPQ is truly a new legal entity for the purpose of determining if it added employees to the State, and is thus entitled to the tax treatment it claims.