dissenting.
I do not believe that Belco Petroleum Corporation v. State Board of Equalization, Wyo., 587 P.2d 204 (1978) (hereinafter referred to as Belco)1 is dispositive of this case. The situations in the two cases are not similar.
Belco held that an excise tax for the privilege of extracting certain minerals during the current calendar year could properly be measured or computed on the basis of the gross production for the preceding calendar year. It noted that a “statute is not necessarily retroactive because it draws on antecedent facts for its operation.” Belco, supra, 587 P.2d at 210.
In this case, the statute draws on present, not antecedent, facts for its operation. The tax is assessed and paid in the current calendar year on the basis of the current calendar year’s production.
“ * * * [E]ach taxpayer * * * shall remit quarterly tax payments to the department. The payment shall be determined by the taxpayer based on actual production during the quarter * * *.” (Empha*790sis added.) Section 39-6-304(a), W.S. 1977, Cum.Supp.1981.
It should be recognized that appellants are not challenging, in any way, the assessment of previously imposed excise taxes, or the new quarterly time table for collection of such previously imposed taxes, and they are not challenging the quarterly time table for collection of the newly imposed two percent (2%) tax. The only challenge is to the retroactive imposition of the new tax for the months of January and February 1981 — before the law imposing the same became effective on February 28, 1981.
“ * * * [A]s a general rule tax measures, as well as other statutes, will be construed prospectively only if there is a doubt whether the statute was intended to be retroactive. [Citations.] Further, as a general rule, revenue laws will be construed in favor of the taxpayer if they are ambiguous or doubtful. [Citations.] * * * ” Belco, supra, 587 P.2d at 210.
The situation in this case must be measured in accordance with such law. Such law must receive more than lip service. Fair is fair and equity is equity.
The provision enacted in 1981 and which became effective at the end of February 1981, now challenged by appellants, reads:
“In addition to other excise taxes provided by this section there is levied a tax of two percent (2%) of the value of the gross product extracted upon the privilege of severing or extracting oil and gas.” Section 39-6-302(g), W.S.1977, Cum.Supp. 1981.
The provision did not operate retroactively upon the privilege as it was exercised before the effective date of the act.
I believe a distinction must be made between: (1) the activity upon which the tax is assessed, i.e., the privilege of extracting the minerals, and (2) the measure by which the tax is computed. In Belco, supra, it could be said that the wording of the enactment made possible the conclusion that the activity assessed was a privilege of extracting minerals during the current calendar year — a prospective application, and the measure by which the tax is computed was the gross production during the preceding calendar year — antecedent facts but not retroactive operation of the privilege. The tax was a yearly privilege, collected in the calendar year for which the privilege was granted, but based on the value of the gross product extracted during the previous calendar year.
In this case, the wording of the enactment brings into play a different time at which the operation of the privilege commenced. “ * * * [T]here is levied a tax of two percent (2%) of the value of the gross product extracted upon the privilege of severing or extracting * * * ” (emphasis added), § 39-6-302(g), together with, “ * * * the payment shall be * * * based on the actual production during the quarter * * * ’’ (emphasis added), § 39-6-304, W.S.1977, Cum.Supp.1981. The privilege was paid for in quarterly payments as it was exercised. Yet, the ultimate determinate of the amount of tax was measured on a calendar year basis. Confusion has resulted from the fact that at a time in the following year, the department is directed to audit and verify the fact of proper payments. Section 39-6-304(d), W.S.1977, Cum.Supp. 1981, provides in pertinent part:
“(d) On or before May 15 of each year beginning with the year 1982 * * * the department shall determine the amount of the gross production returned for the preceding calendar year, shall compute the amount of tax liability and shall credit the amount paid * * * and shall notify each taxpayer of the amount so determined and the balance or refund, if any, due.”
Of course, the preceding calendar year is the one in which the privilege was exercised and during which the taxes were paid. That which is done in the subsequent year is only an auditing process. It is not an application of antecedent facts to measure the currently levied tax — as in Belco. The measure of the tax was made in the preceding year and paid immediately after each quarter of that year. Application of the foregoing quoted legal propositions as set *791forth in Belco mandates imposition of the tax only for the time in which the privilege was exercised.
Inasmuch as the privilege taxed — the operation — began on March 1, 1981, the tax for the first quarter of 1981 should have applied only to the value of the gross product extracted during the month of March 1981. A tax should not be levied on a privilege already exercised and accomplished.
I would reverse and remand with directions to order the Commission to return to appellants the taxes paid pursuant to § 39-6-302(g) under protest for the months of January and February 1981.
. I do not comment on the propriety of Belco, and I accept its holding for the purposes of this dissent.