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Bridges v. Nelson Indus. Steam Co.

Court of Appeal of Louisiana, Third Circuit

June 24, 2015

CYNTHIA BRIDGES, SEC., DEPT. OF REV., STATE OF LOUISIANA
v.
NELSON INDUSTRIAL STEAM CO. Consolidated With NELSON INDUSTRIAL STEAM CO.
v.
CALCASIEU PARISH SCHOOL SYSTEM SALES AND USE TAX DEPT., ET AL

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2008-6375, C/W 2010-3564, C/W 2010-5853 & C/W 2013-2661. HONORABLE RONALD F. WARE, DISTRICT JUDGE.

AFFIRMED.

H. Alan McCall, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, Louisiana, COUNSEL FOR: Defendant/Appellant - Nelson Industrial Steam Co.

Christopher J. Dicharry, Linda S. Akchin, Kean Miller LLP, Baton Rouge, Louisiana, COUNSEL FOR: Defendant/Appellant - Nelson Industrial Steam Co.

Russell J. Stutes, Jr., tutes & Lavergne, LLC, Lake Charles, Louisiana, COUNSEL FOR: Plaintiffs/Appellees - Cynthia Bridges, Sec., Dept. of Rev., State of Louisiana; Calcasieu Parish School System Sales & Use Tax Dept., and John Collins, Tax Administrator.

Cheryl M. Kornick, Liskow & Lewis, New Orleans, Louisiana, BRIEF OF AMICUS CURIAE - Louisiana Chemical Association.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges. CONERY, J., dissents and assigns reasons.

OPINION

Page 712

[14-1250 La.App. 3 Cir. 1] THIBODEAUX, Chief Judge.

Nelson Industrial Steam Company (NISCO) appeals four judgments rendered against it in four consolidated tax cases. Two judgments in favor of Cynthia Bridges, Secretary, Louisiana Department of Revenue, State of Louisiana (State) ordered NISCO to pay taxes, penalties, and interest owed. Two judgments in favor of Calcasieu Parish School System Sales and Use Tax Department as Central Collector of Sa1es and Use Tax for the Parish of Calcasieu, and John Collins[1] in his Capacity as Administrator of the Calcasieu Parish School System Sales and Use Tax Department (Parish), dismissed NISCO's two suits for refunds of taxes, penalties, and interest paid under protest. Finding no legal error or manifest error in the judgments of the trial court, we affirm.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting judgment against NISCO on the further processing issue;
(2) whether the trial court manifestly erred in not granting NISCO's request for attorney fees in suit no. 2013-2661 against the Parish;
(3) whether the trial court manifestly erred in imposing penalties against NISCO in suit nos. 2010-3564 and 2013-2661 against the Parish.

[14-1250 La.App. 3 Cir. 2] II.

FACTS AND PROCEDURAL HISTORY

NISCO constructs and operates power-generating facilities in the Lake Charles area. During the relevant tax periods, NISCO's revenue from the sale of electricity was $739 million. NISCO purchased sand and limestone for its generating process at a cost of $46 million. Generally, raw materials which are sold at retail and used up in the manufacturing process are considered tangible personal property, and they are subject to sales tax at the time of their purchase, unless a special exemption or exclusion applies. NISCO sought to be exempt from paying sales tax on its purchase of sand and limestone by invoking the " further processing" statute.[2]

The claims of taxes owed by the tax collecting agencies and the claims of NISCO for the tax exemption/exclusion ultimately resulted in four consolidated cases: two suits against NISCO by the State to collect taxes for the tax periods 2005-2007

Page 713

and 2008-2012; [3] and two suits against the Parish by NISCO for refunds of taxes paid under protest for tax periods 2007-2009 and 2010-2012.[4]

The trial court initially heard cross-motions for summary judgment on the further processing issue and granted summary judgments in favor of the State [14-1250 La.App. 3 Cir. 3] and the Parish in the first three suits. On appeal, this court affirmed. Bridges v. Nelson Industrial Steam Co., 12-477 (La.App. 3 Cir. 11/7/12), 106 So.3d 147. The Louisiana Supreme Court granted NISCO's writ application and vacated the summary judgment rulings, finding that genuine issues of material fact precluded summary judgment. Bridges v. Nelson Industrial Steam Co., 13-171 (La. 3/8/13), 108 So.3d 1168. On remand, following a trial on the merits which included the fourth suit, the trial court rendered judgments again in favor of the ...


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