No. 116,034
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Protest of
BARKER, ROBERT E. and R. GAY
for the Years 2013, 2014, and 2015
in Neosho County, Kansas.
SYLLABUS BY THE COURT
1.
This court may take judicial notice of any official state document prepared by a
state official, including appraisal guides published by the Kansas Department of
Revenue.
2.
Review by the Court of Appeals of questions of law is unlimited.
3.
An appellate court exercises unlimited review on questions of statutory
interpretation without deference to an administrative agency's or board's interpretation of
statutes.
4.
The party challenging the Board of Tax Appeals' action has the burden to prove
that the action taken by the board was erroneous. K.S.A. 2016 Supp. 77-621(a).
5.
Statutory exemption provisions are strictly construed against the party requesting
exemption.
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6.
All doubts concerning exemption are to be resolved against exemption and in
favor of taxation.
7.
The statute providing that an oil lease "together with tubing . . . and all other
equipment" used to operate wells is personal property for purposes of taxation does not
compel the conclusion that equipment is part of an oil lease for purposes of tax
exemption in K.S.A. 2016 Supp. 79-201t(a).
8.
Statutes do not show legislative intent to include equipment within the term "oil
lease" for purposes of the tax exemption in K.S.A. 2016 Supp. 79-201t(a).
9.
Equipment used to produce oil is not exempt from taxation pursuant to K.S.A.
2016 Supp. 79-201t(a), the statute exempting certain low production oil leases.
10.
In the absence of statutory or contractual authorization, each party to the litigation
is responsible for his or her own attorney fees.
11.
To receive attorney fees pursuant to K.S.A. 79-3268(f), a party must prove that a
tax assessment was made without "reasonable basis in law or fact."
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Appeal from Board of Tax Appeals. Opinion filed June 30, 2017. Affirmed.
Robert E. Barker, of Chanute, for appellants pro se.
Linus A. Thuston, county attorney, for appellee Neosho County.
Before LEBEN, P.J., GARDNER, J., and WALKER, S.J.
GARDNER, J.: Robert E. and R. Gay Barker appeal an order of the Board of Tax
Appeals (BOTA) which found that equipment used to produce oil is not exempt from
taxes pursuant to K.S.A. 2016 Supp. 79-201t(a), the statute exempting certain low
production oil leases. Finding that the Barkers have not met their burden of proof to show
they fall within that tax exemption, we affirm.
Factual and procedural background
Robert Barker leased an oil and gas interest on land that his parents owned. After
the death of Robert Barker's mother, ownership of the land transferred to the Barkers by
operation of a transfer on death deed. We examined in two previous cases whether that
oil lease was terminated by operation of law under the merger doctrine: In re Barker, 50
Kan. App. 2d 375, 376, 327 P.3d 1036 (2014), rev. denied 302 Kan. 1010 (2015), and In
re Tax Protest of Barker, No. 111,108, 2014 WL 4435935, at *2 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. 1010 (2015). That issue is not before us in
this appeal.
The issue in this appeal relates to the Barkers' receipt of a tax exemption for low
production leases under K.S.A. 2016 Supp. 79-201t(a). BOTA found the term "oil lease"
includes wells operated by the surface owner and found the Barkers' low production oil
wells exempt. But after the Barkers obtained that tax exemption, the County assessed a
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tax on the equipment the Barkers used to produce oil from those exempted low
production wells.
The Barkers appealed the equipment tax to BOTA, then moved for summary
judgment and attorney fees. The Barkers argued that equipment is defined as personal
property in K.S.A. 79-329 and is part of an oil lease under K.S.A. 2016 Supp. 79-201t(a)
so it is therefore exempt. The County objected and argued that the Barkers' summary
judgment motion should be denied but filed no written response to the motion. Instead,
the County asserted that a hearing was necessary because no authority conclusively
addressed whether equipment is part of an oil lease for purposes of the low production
tax exemption. The Barkers replied that the County's opportunity to dispute the meaning
of "oil lease" had lapsed because the County had not appealed the exemption order.
Before ruling on the Barkers' summary judgment motion BOTA held a hearing. It
then concluded that equipment is not included in the term "oil lease" as that term is used
in the exemption for low production leases under K.S.A. 2016 Supp. 79-201t(a). The
Barkers appeal. We first examine several procedural issues raised by the parties.
I. DID NEOSHO COUNTY ERRONEOUSLY CONSULT AN OIL AND GAS APPRAISAL GUIDE?
The Barkers contend that the County erred in relying on an oil and gas appraisal
guide. When the Barkers first argued to the County that equipment was exempt as part of
the oil lease, the county appraiser consulted the Division of Property Valuation (DPV)
office at the Kansas Department of Revenue. The county appraiser was told that the tax
exemption for low producing oil leases did not include equipment. Because the wording
in K.S.A. 2016 Supp. 79-201t did not specifically exclude or include equipment, the
County relied on the DPV's statement as well as on an oil and gas appraisal guide in
deciding not to change the valuation until BOTA could clarify it.
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Although our caselaw and statutes do not expressly address the equipment issue
raised in this case, the Oil and Gas Appraisal Guide of the DPV does. After the text of the
relevant exemption statute, K.S.A. 2016 Supp. 79-201t, the guide states "[t]he royalty
interest and the production equipment do not qualify for the exemption." 2016 Year Oil
and Gas Appraisal Guide, p. iii. The Barkers argue that the County erred in relying on the
appraisal guide because its conclusion is not supported by legal authority and is merely
part of the preface. They assert that allowing such a use of the appraisal guide would
amount to legislation by the DPV and that the Supreme Court does not recognize the
guide as a law-making tool.
We disagree. The relevant statute states that the director of the DPV shall adopt
"rules and regulations or appraiser directives prescribing appropriate standards for the
performance of appraisals in connection with ad valorem taxation." K.S.A. 2016 Supp.
79-505(a). A separate statute requires county appraisers to follow the "policies,
procedures and guidelines of [DPV]" when performing their duties. K.S.A. 2016 Supp.
79-1456(a). See Cimarex Energy Co. v. Board of Seward County Comm'rs, 38 Kan. App.
2d 298, 299-300, 164 P.3d 833 (2007) ("Under K.S.A. 79-1456, a county appraiser is
obligated to follow the Oil and Gas Appraisal Guide [Guide] prescribed by the Director
of Property Valuation in the valuation of oil and gas producing properties.").
This court may take judicial notice of any official state document prepared by a
state official, including appraisal guides. State ex rel. Stephan v. Martin, 230 Kan. 759,
770, 641 P.2d 1020 (1982). We may thus consider the Oil and Gas Appraisal Guide
because it is published by the Kansas Department of Revenue.
The caselaw cited by the Barkers as prohibiting use of the guides as law-making
tools actually holds that statutory provisions must be considered when assessing property
taxes. Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 12, 453 P.2d 59 (1969); In re EOG
Resources, Inc., 46 Kan. App. 2d 821, 825-26, 265 P.3d 1207 (2011). The Oil and Gas
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Appraisal Guide which permits exemption of low producing oil leases, but not of the
equipment used in such production, is consistent with K.S.A. 2016 Supp. 79-201t, as we
explain more thoroughly below. Accordingly, the County did not err in consulting it.
II. DID BOTA BECOME AN ADVOCATE FOR THE COUNTY?
The Barkers also argue that BOTA became an advocate for the County because
BOTA denied the Barkers' summary judgment motion despite the fact that the County
filed no response to it. The Barkers also contend that the County violated K.S.A. 2016
Supp. 60-256(e)(2) and Supreme Court Rule 141 (2017 Kan. S. Ct. R. 204) by failing to
file a response brief.
Summary judgment is appropriate when there are no disputed material facts and
the movant is entitled to judgment as a matter of law. Drouhard-Nordhus v. Rosenquist,
301 Kan. 618, 622, 345 P.3d 281 (2015). Although K.S.A. 2016 Supp. 60-256 states that
a response must set out specific facts showing a genuine issue for trial, nothing requires a
party to file a response to a summary judgment motion. Instead, when the nonmoving
party fails to respond or does not properly respond to a summary judgment motion,
"summary judgment should, if appropriate, be entered against that party." K.S.A. 2016
Supp. 60-256(e)(2). Similarly, under Rule 141(f)(2), when a party does not respond to a
summary judgment motion, "the uncontroverted factual contentions stated in the moving
party's memorandum or brief are deemed admitted for purposes of the motion." (2017
Kan. S. Ct. R. 204). But here, the uncontroverted facts had already been determined in
the tax exemption hearing, and the parties agreed that the facts relating to this matter
were uncontroverted. The only dispute remaining was whether the Barkers' equipment
was exempt, and that issue presented a question of law.
Although the County did not file a response brief, BOTA accepted the County's
written objection in lieu of a response. That objection argued that the Barkers' motion for
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summary judgment raised an unsettled and important issue of law that warranted a full
hearing rather than summary judgment. As we determine below, equipment is not
included in the meaning of "oil lease" for purposes of the relevant tax exemption statute.
Therefore, even assuming application of the summary judgment statute or Rule noted
above, it would have been inappropriate as a matter of law for the district court to have
granted the Barkers' motion despite the lack of a response by the County.
III. DID BOTA ERR IN DETERMINING THAT EQUIPMENT IS NOT PART OF AN OIL LEASE FOR
PURPOSES OF THIS TAX EXEMPTION?
The Barkers' primary contention is that the exemption for a low production "oil
lease" under K.S.A. 2016 Supp. 79-201t(a) includes the equipment used in producing the
oil from that lease. This statute provides:
"The following described property, to the extent herein specified, shall be and is
hereby exempt from all property or ad valorem taxes levied under the laws of the state of
Kansas:
"(a) All oil leases, other than royalty interests therein, the average daily
production from which is three barrels or less per producing well, or five
barrels or less per producing well which has a completion depth of 2,000 feet
or more." K.S.A. 2016 Supp. 79-201t(a).
The Barkers argue that BOTA correctly defined "oil lease" as including equipment
when it granted the tax exemption because its order stated: "What K.S.A. 2014 Supp. 79-
201t(a) refers to as an 'oil lease' is the tangible personal property as set forth in K.S.A.
79-329," and K.S.A. 79-329 includes both oil leases and equipment as personal property
for purposes of taxation. The Barkers reason that oil production equipment must be part
of an oil lease in this exemption statute because the taxable value of an oil lease is based
on its production capacity and one must consider equipment in determining production
capacity.
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We are not persuaded. BOTA's definition of "oil lease" which referred to the
"tangible personal property" was made in response to the County's argument that there
was no oil lease whatsoever since the Barkers had become not only the operator of the oil
wells but also the surface owner. BOTA found that the type of lease the County referred
to was a contract that gives one a right to take from the land—a profit-à-prendre—which
is an intangible untaxable item. BOTA made its conclusion that 79-201t(a)'s "oil lease"
refers to tangible personal property set forth in K.S.A. 79-329 to rebut the County's
assertion, not to address the issue raised here—whether equipment is included in or
excluded from a low production "oil lease." In any event, we are not bound by BOTA's
definition of that term.
Interpretation of statutes is a question of law, and this court has unlimited review.
Gehring v. State Dept. of Transp., 20 Kan. App. 2d 246, 248, 886 P.2d 370 (1994). The
most fundamental rule of statutory interpretation is that the intent of the legislature
governs. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282
(2016). We exercise unlimited review on questions of statutory interpretation without
deference to an administrative board's interpretation of a statute. Ft. Hays St. Univ. v.
University Ch., Am. Ass'n. of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010). This
ruling has been specifically applied to decisions of BOTA by In re Tax Exemption
Application of Kouri Place, L.L.C., 44 Kan. App. 2d 467, 472, 239 P.3d 96 (2010). A
party challenging the validity of BOTA's action has the burden of proving it was
erroneous. In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 536, 920 P.2d
947 (1996); see K.S.A. 2016 Supp. 77-621(a)(1). That burden here rests on the Barkers.
The first step in determining the intent of the legislature is to look to the plain
language of the statute, giving ordinary words their ordinary meanings. Padron v. Lopez,
289 Kan. 1089, 1097, 220 P.3d 345 (2009). We must consider various provisions of an
act and bring the provisions into workable harmony if possible. Friends of Bethany
Place, Inc. v. City of Topeka, 297 Kan. 1112, 1123, 307 P.3d 1255 (2013). When
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construing taxation statutes, we strictly construe them in favor of the taxpayer. However,
tax exemption statutes are interpreted differently—we strictly construe them in favor of
imposing the tax and against allowing an exemption for one who does not clearly qualify.
In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1045, 271 P.3d 732 (2012). All
doubts concerning exemption are to be resolved against exemption and in favor of
taxation. Scholastic Book Clubs, Inc., 260 Kan. at 532. This rule of construction, coupled
with the Barkers' burden of proof and the relevant statute's lack of clarity concerning
"equipment," largely compels our conclusion in this case.
Kansas cases have not previously determined whether equipment used in the
production of oil is considered part of an "oil lease" for purposes of a tax exemption,
generally, or for purposes of K.S.A. 79-201t(a)'s exemption for low producing oil leases,
specifically. Conceding the lack of controlling authority, the Barkers ask us to consider
the court's treatment of equipment in other contexts. For example, in Cities Service Oil
Co. v. Murphy, equipment used to produce oil was assessed at a percentage of cost
adjusted for age, while the oil lease was assessed using varying formulas intended to
predict production value for the probable life of the well. 202 Kan. 282, 285-88, 447 P.2d
791 (1968). But the discussion in Cities Service shows that the methods of valuing
equipment are unlike the methods for valuing the oil leases themselves, cutting against
the Barkers' argument. The Barkers also cite two other cases: In re Tax Appeal Wedge
Log-Tech, 48 Kan. App. 2d 804, 809, 300 P.3d 1105 (2013), which determined whether
oil and gas diagnostic equipment was properly classified as commercial and industrial
equipment, and In re Lietz Const. Co., 273 Kan. 890, 47 P.3d 1275 (2002), which
involved a farm equipment exemption and had nothing to do with low production oil
lease exemptions. We do not find those cases to be helpful here.
Both parties view Board of Ness County Comm'rs v. Bankoff Oil Co., 265 Kan.
525, 960 P.2d 1279 (1998), as an important case. Bankoff confirmed that the objective of
statutes regarding valuation of oil and gas leases is "'to reach the actual fair market value
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in the market place of a producing lease, as opposed to a fictional, unrealistic, or arbitrary
determination.'" 265 Kan. at 540-41 (quoting State ex rel. Stephan v. Martin, 230 Kan.
747, 755, 641 P.2d 1011 [1982]). Bankoff explained the difference between taxation of
oil leases and most other personal property:
"Ad valorem taxation of oil and gas leases differs from that of most other
personal property in that the assessment is based on the present worth of the lease's future
production. The determination of the fair market value of a lease necessarily requires
consideration of the expected future income potential of a lease, including the age and
probable life of producing wells thereon." 265 Kan. at 541.
Testimony in Bankoff was that on established production, which is other than new
production, the guide provides the following methodology for arriving at market value
for an oil lease:
"'A. Well, the theory of the guide is that we are appraising the reserves that are in
the ground. And so the guide, the basic mechanics of the guide is to discount income over
a period of time to reflect the production capabilities of that reserve. And then it
combines with that a rate of decline which is indicating that that reserve is depleting. That
is combined with a discount, discounting the money—for the money that is not received
until a later time. You get a present worth factor, which is a multiple of money, and that's
multiplied times the value, or price of the oil, times the production; and that's to indicate
a probable reserve value, from which is deducted the expenses for lifting the oil, to get a
net working interest. Then they add the equipment, production equipment, to that, for the
working interest. So it's based on the probable life of the reserve, and the probable dollars
per barrel that will be received by the operator, or the working interest.'" 265 Kan. at 529.
The Barkers apparently contend that because equipment is added for the working interest,
it is also included in "oil lease" for purposes of the relevant exemption. But the guide
expressly states the contrary. After the text of K.S.A. 2016 Supp. 79-201t, the guide
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states "[t]he royalty interest and the production equipment do not qualify for the
exemption." 2016 Year Oil and Gas Appraisal Guide, p. iii.
Finding no square answers to our issue in caselaw, we focus instead on the various
provisions of the tax code. Read together, they suggest that equipment is not part of an oil
lease for purposes of the tax exemption at issue here. First, K.S.A. 79-301 requires all
personal property subject to taxation to be listed and assessed. Under K.S.A. 79-329, "oil
and gas leases and all oil and gas wells . . . together with all casing, tubing or other
material therein, and all other equipment" used to operate wells are personal property and
are to be assessed and taxed as such. (Emphasis added.) The Barkers assert that the
phrase "together with" indicates that fixtures, such as casings and tubing and all other
equipment, are considered to be part of the oil well or lease. But the Barkers do not cite
any authority for that conclusion. We note that the purpose of this statute is merely to
classify certain assets as personal property to enable taxation as personal property.
The words "together with" are words of common usage, and we give them their
ordinary meaning. The statute uses the conjunction "and," which serves to connect two
separate items—here, oil leases and equipment used to operate wells.
"'Together with'" means "'along with: in addition to: as well as
.'" Kerry v. Quicehuatl, 213 Or. App. 589, 594,
162 P.3d 1033 (2007) (quoting Webster's Third New International Dictionary 2404
[unabridged ed. 2002]) (finding a person is "severally liable together with" the
underinsured motorist if the person is independently liable to the insured for the same
injuries caused by the underinsured motorist); see Leeks Canyon Ranch, LLC v. Callahan
River Ranch, LLC, 2014 WY 62, ¶ 38, 327 P.3d 732 (Wyo. 2014) (finding a trust
conveying a parcel of land "[t]ogether with and subject to all easements of record and
sight, and a non-exclusive 60.0 foot road and utility easement" conveyed all those items).
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"According to Webster's New International Dictionary (2nd Ed.), the expression
'together with' means 'In union with; along with.' Funk & Wagnalls New Standard
Dictionary defines the expression as 'in combination with; added to,' and the Oxford
dictionary assigns to it, inter alia, the following definition: 'in addition to, or with the
addition of; * * *.'" Gray v. Tarbox, 14 Wash. 2d 237, 239-40, 127 P.2d 669 (1942)
(finding the expression "together with" was the equivalent of "in addition to").
Our tax statute provides that an oil lease "together with . . . tubing . . . and all other
equipment" used to operate wells is personal property for purposes of taxation and does
not compel the conclusion that equipment is part of an oil lease for purposes of the
relevant tax exemption. We cannot reasonably read the phrase "together with" to mean
"including." The verbiage indicates that such equipment is what we used to call an
"appurtenance"—"[s]omething that belongs or is attached to something else." Black's
Law Dictionary 123 (10th ed., 2014); see Niece v. Percy, 19 Ohio Cir. Dec. 219, 220,
1906 WL 674 (1906) (noting journal entry in which court appeared to treat equipment as
an appurtenance of oil and gas leases), aff'd 78 Ohio St. 406, 85 N.E. 1129 (1908).
Although the two are related or connected, they are not identical, nor is one encompassed
within the other. Accordingly, contrary to the Barkers' position, we read the personal
property statute as distinguishing between equipment and the oil lease itself.
The apparent purpose of K.S.A. 2016 Supp. 79-201t is to exempt from taxation
certain low producing oil leases because of low productivity and income. The Barkers
have shown no logical reason why that purpose would best be served by including
equipment, whose taxation generally does not depend on the amount of production,
within the low production exemption. See K.S.A. 2016 Supp. 79-1439(b)(2)(B) and (E)
(providing that equipment is generally assessed based on a combination of its economic
life, retail cost when new, and depreciation).
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Third, had the legislature desired to exclude equipment from taxation in low
producing oil leases, it could have done so expressly. For example, in stating how to
determine the taxable value of certain royalty interests and working interests, the
legislature expressly excluded equipment from the equation. See K.S.A. 2016 Supp. 79-
331(b) (providing the "valuation of the working interest and royalty interest, except
valuation of equipment, of any original base lease or property producing oil or gas" after
a specific date shall be discounted to reflect the decline in flush production which will
occur in subsequent years).
Fourth, persons who own "oil and gas leases or [those] engaged in operating for
oil and gas" are subject to a tax penalty for failing to file an oil and gas property
assessment statement. See K.S.A. 2016 Supp. 79-332a(a). The requirement to file an oil
and gas property assessment statement relates to K.S.A. 2016 Supp. 79-1439(b)(2), which
sets forth different tax rates based on the category of personal property. Mineral interests
(including oil leases) are categorized and assessed separately from equipment. Mineral
leasehold interests are assessed at 30%, oil leasehold interests the average daily
production from which is five barrels or less are assessed at 25%, but equipment is
generally assessed based on a combination of its economic life, retail cost when new, and
depreciation. K.S.A. 2016 Supp. 79-1439(b)(2)(B) and (E). Equipment used in producing
oil is thus not encompassed within the term "oil lease" in this statute, although equipment
is part of oil and gas property.
Perhaps the most compelling statutory provisions which evidence legislative intent
to tax equipment separately from oil leases are the parallel provisions found in the
exemption statute and the rate statute. The relevant language of the rate statute provides:
"(2) Personal property shall be classified into the following classes and assessed
at the percentage of value prescribed therefor:
....
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"(B) mineral leasehold interests, except oil leasehold interests the
average daily production from which is five barrels or less, and natural gas
leasehold interests, the average daily production from which is 100 mcf or less,
which shall be assessed at 25%, at 30%." (Emphasis added.) K.S.A. 2016 Supp.
79-1439(b)(2)(B).
That language is similar to the language used in the relevant exemption statute, which
exempts:
"All oil leases, other than royalty interests therein, the average daily production
from which is three barrels or less per producing well, or five barrels or less per
producing well which has a completion depth of 2,000 feet or more." (Emphasis added.)
K.S.A. 2016 Supp. 79-201t(a).
Because equipment and oil leases are categorized and assessed differently, it is unlikely
that the legislature intended "oil lease" to include equipment. And the oil lease rate and
exemption provisions have similar language which does not appear in the provisions
dealing with equipment.
Nothing in the statutory scheme or caselaw expressly states that equipment is
included in the definition of "oil lease" for purposes of tax exemption. Instead, various
statutes suggest that equipment is not included in that definition. Strictly construing this
tax exemption statute, as we must, see In re Tax Appeal of LaFarge Midwest, 293 Kan. at
1045, we conclude that equipment is not considered part of an "oil lease" as that term is
used in K.S.A. 2016 Supp. 79-201t.
IV. ARE THE BARKERS ENTITLED TO ATTORNEY FEES?
The Barkers argue that BOTA should have awarded attorney fees pursuant to
K.S.A. 79-3268(f) because the tax assessment on their equipment was without
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"reasonable basis in law and fact." The County argues that nonprevailing parties are not
entitled to attorney fees. Neither party addresses whether an attorney who acts pro se, as
Robert Barker does here, may recover attorney fees under this statute; thus, we do not
address that issue. See generally Kay v. Ehrler, 499 U.S. 432, 435-37, 111 S. Ct. 1435,
113 L. Ed. 2d 486 (1991) (finding the term "attorney's fees" assumes an agency
relationship between an attorney and client; thus, a pro se party is not entitled to attorney
fees under 42 U.S.C. 1988, regardless of whether the party is an attorney).
"[T]he 'American Rule' . . . which is well established in Kansas, is that in the
absence of statutory or contractual authorization, each party to the litigation is
responsible for his or her own attorney fees." Robinson v. City of Wichita Employees'
Retirement Bd. of Trustees, 291 Kan. 266, 279, 241 P.3d 15 (2010). The potential
statutory authorization here is found in K.S.A. 79-3268(f), which provides that attorney
fees may be awarded if the taxpayer meets certain requirements, including proving that
an assessment was made without a "reasonable basis in law or fact."
The Barkers are not entitled to attorney fees because we have found the tax
assessed on the Barkers' equipment was reasonably based in law and fact. The County
reasonably relied on the Oil and Gas Appraisal Guide which stated that equipment was
not included in K.S.A. 2016 Supp. 79-201t(a)'s exemption for low producing leases, the
Kansas Department of Revenue advised the county appraiser of the same, and we have
upheld that conclusion as legally correct. Therefore, BOTA properly declined to award
attorney fees to the Barkers.
Affirmed.
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