FROM THE BOARD OF TAX APPEALS NO. 9342-D HONORABLE TONY
GRAPHIA (ret.), CHAIRMAN
Gould Frey David R. Cassidy Breazeale, Sachse & Wilson,
L.L.P. COUNSEL FOR PLAINTIFF/APPELLANT: O'Neal Steel
Long Brandea P. Averett Antonio C. Ferachi Adrienne Quillen
Louisiana Department of Revenue COUNSEL FOR
DEFENDANT/APPELLEE: Louisiana Department of Revenue.
composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G.
Steel Louisiana, LLC (O'Neal), appeals from the Board of
Tax Appeals' judgment, which held that certain commercial
purchases of fuels and gases were not excluded from sales tax
under La.R.S 47:301 (10)(x) and dismissed O'Neal's
refund claim for $3, 423.33. For the following reasons, we
AND PROCEDURAL HISTORY
which has its principal place of business in Lafayette,
Louisiana, is engaged in the metals business, including
welding and metals fabrication. O'Neal purchased, and
paid sales tax on, welding gases that are used as shielding
gases in the welding process. O'Neal filed a refund claim
with the Louisiana Department of Revenue (LDR) for sales
taxes it paid for the period beginning January 2011 through
February 2014, claiming various exemptions such as the
Manufacturing, Machinery, and Equipment exemption and the
Fuels exemption, which it claims includes welding gases. LDR
allowed most of the refund claimed but denied the portions
for sales taxes paid on the purchase of welding gases.
O'Neal then appealed the ruling of LDR to the Board of
Tax Appeals (the Board). At the hearing, O'Neal
submitted evidence that sales taxes were in fact paid on
O'Neal's purchases of welding gases. The parties
stipulated that O'Neal filed a $10, 066.07 refund claim
for sales taxes paid, of which $9, 250.32 was initially
denied, but that LDR thereafter allowed another $2, 393.42.
The parties further stipulated the sum of $3, 423.33 in sales
taxes paid on fuel for which O'Neal continued to claim
entitlement to a refund. The Board held that commercial
purchases of fuels and gases were not
excluded from tax under La.R.S.
47:301(10)(x) and dismissed O'Neal's refund claim for
the $3, 423.33. This appeal followed.
asserts the following assignments of error:
1. It was reversible error to judicially repeal 2008 La.
2nd Ext. Sess. Act 1 (Act 1), which excluded all
commercial off-highway fuel purchases from tax, because
simultaneous legislation, 2008 La. 2ndExt. Sess.
Act 9 (Act 9), excluded only commercial purchases of butane
and propane fuels from tax.
2. The trial court erred in finding Acts 1 and 9 are in
3. The trial court erred in failing to give effect to all
laws passed by the legislature.
4. It is reversible error to tacitly repeal Act 1 without any
attempt to harmonize it with Act 9.
resolution of this dispute hinges entirely on the
interpretation of two acts passed by the Louisiana
Legislature in the same session, each applicable to the
purchase of the welding gases at issue here and certain
exemptions from sales taxes for those purchases. Act No. 1 of
the 2008 Second Extraordinary Session, excluded from tax any
fuel or gas purchased, and Act No. 9 of the same session,
exempted only butane and propane gases. Each act attempted to
amend and reenact the same provision, La.R.S. 47:301(10)(x).
The Board found that the latter act tacitly repealed the
first and denied O'Neal's claim based upon that
finding. Thus, the sole issue presented to the Board was a
legal one: whether the O'Neal purchases of welding gases
were exempt from sales tax under La.R.S. 47:301(10)(x).
a deferential standard of appellate review is applied to the
factual conclusions of an administrative tribunal such as the
Board, the same is not true for issues of law.
"Questions of law, such as the proper interpretation of
a statute, are reviewed by [an appellate] court under the de
novo standard of review." Land v. Vidrine,
10-1342, p.4 (La. 3/15/11), 62 So.3d 36, 39. "On legal
issues, the appellate court gives no special weight to the
findings of the trial court, but exercises its constitutional
duty to review questions of law and renders judgment on the
record." State, Through La. River boat Gaming Comm
'n v. La. State PoliceRiverboat Gaming Enft
Div., 95-2355, p. 5 (La.App. 1 Cir. 8/21/96), 694 So.2d
316, 319. "Appellate review of a question of law
involves a determination of whether the lower ...