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Normand v. Cox Communs. Louisiana, LLC

Court of Appeal of Louisiana, Fifth Circuit

December 23, 2014

NEWELL NORMAND, SHERIFF AND EX-OFFICIO TAX COLLECTOR FOR THE PARISH OF JEFFERSON
v.
COX COMMUNICATIONS LOUISIANA, LLC

Page 157

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 706-766, DIVISION " G" . HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING.

AFFIRMED.

KENNETH C. FONTE, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

ERIC S. TRESH, MADISON J. BARNETT, DEREK W. TAKEHARA, ATTORNEYS AT LAW, Atlanta, Georgia And MARTIN E. LANDRIEU, PHILLIP J. ANTIS, JR., ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Jude G. Gravois, Robert M. Murphy and Stephen J. Windhorst.

OPINION

STEPHEN J. WINDHORST

Page 158

[14-563 La.App. 5 Cir. 2] Appellant, the Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson (" appellant" ), appeals the trial court's judgment in favor of Cox Communications Louisiana, L.L.C. (" Cox" ) and against appellant, dismissing appellant's claims with prejudice. For the reasons that follow, we affirm the trial court's judgment.

On or about October 8, 2008, appellant initiated a sales and use tax audit of Cox. The audit covered the tax periods of January 1, 2005 through December 31, 2009. On December 20, 2010, appellant issued two final assessments in Audit 3376 and Audit 3377.[1] The total amount of principal and interest in dispute through the date of judicial demand is $695,683.79.[2] Cox filed a formal protest on February 25, 2011.[3] After issuing the final assessments, appellant filed a summary proceeding to recover sales tax for Cox's Video on Demand (" VOD" ) and Pay per View (" PPV" ) programming.

[14-563 La.App. 5 Cir. 3] After a trial on the merits, the trial court rendered judgment in favor of Cox, finding that VOD and PPV programming are not tangible personal property, but are nontaxable services. This appeal followed.

Standard of Review

A trial determination of fact is entitled to great deference on review. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La. 7/1/11), 65 So.3d 1218, 1230. Factual findings of a trier of fact may not be disturbed by an appellate court absent manifest error. Allerton v. Broussard, 10-2071 (La. 12/10/10), 50 So.3d 145, 145, reconsideration denied, 10-2071 (La. 1/28/11), 56 So.3d 974. Where a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the reviewing court may feel that its own evaluations and inferences are more reasonable. McGlothlin, 65 So.3d at 1231; Allerton, 50 So.3d at 145; Stobart v. State, Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993).

In interpreting statutes, the court must give the words of a law their generally prevailing meaning. La. C.C. art. 11. When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12. The meaning of words or phrases may be ascertained by the words and phrases with which they are associated. Cox Cable New Orleans v. City of New Orleans, 624 So.2d 890, 894 (La. 1993). Words of general meaning should be applied only to such classes of things of the same general kind as those specifically mentioned. Id. The meaning of a word in a statute must be

Page 159

determined in light of the statute as a whole. Id., citing Reed v. Washington Parish Police Jury, 518 So.2d 1044 (La. 1988).

Taxing statutes must be strictly construed against the taxing authority. Goudchaux/Maison Blanche, Inc. v. Broussard,590 So.2d 1159, 1161 (La. 1991). [14-563 La.App. 5 Cir. 4] Where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is adopted. Goudchaux, 590 So.2d at 1161; Cleco Evangeline, LLC v. La. Tax Comm'n, 01-2162 (La. 4/3/02), 813 So.2d 351, 356; Cox Cable New Orleans, Inc. v. City of New Orleans,624 So.2d 890, 895 (La. 1993); Cox Cable New Orleans v. City of New Orleans, 94-2102, 94-2492 (La.App. 4 Cir. 11/16/95), 664 So.2d 742, 744. However, exemptions from taxation are strictly construed and must be clearly, unequivocally and affirmatively ...


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