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Metals USA Plates & Shapes Southeast, Inc. v. Robinson

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

METALS USA PLATES & SHAPES SOUTHEAST, INC.
v.
KIMBERLY ROBINSON, SECRETARY, LOUISIANA DEPARTMENT OF REVENUE

          ON APPEAL FROM THE STATE OF LOUISIANA BOARD OF TAX APPEALS NO. 9342D

          COUNSEL FOR PLAINTIFF/APPELLANT, METALS USA PLATES & SHAPES SOUTHEAST, INC. NICOLE GOULD FREY, DAVID R. CASSIDY

          COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA DEPARTMENT OF REVENUE AARON LONG, BRANDEA P. AVERETT, ANTONIO C. FERACHI, ADRIENNE QUILLEN

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Pro Tempore

          STEPHEN J. WINDHORST, JUDGE

         This matter involves a dispute as to whether the tax exemption in La. R.S. 47:301(10)(x) applies to appellant, Metals USA Plates & Shapes Southeast, Inc.'s ("Metals USA") tax refund request for taxes paid on fuel during the period January 2011 through February 2014. The Louisiana Department of Revenue ("LDR") denied Metals USA's refund request. We affirm.

         Facts and Procedural History

         Appellant, Metals USA, operates a welding and metals fabrication business. Metals USA filed a tax refund request for certain taxes paid in error during the period January 2011 through February 2014, including one refund request for taxes paid for welding gases exempt under La. R.S. 47:301(10)(x). The relevant published version of La. R.S. 47:301(10)(x) and the version Metals USA relied upon in its refund request reads as follows:

For the purposes of the sale and use tax imposed by the state… the terms 'retail sale' or 'sale at retail' shall not include the following:
(i) The sale or purchase by a person of any fuel or gas, including but not limited to butane and propane.
(ii) Beginning July 1, 2008, the sale or purchase by any person of butane and propane.

         LDR denied Metals USA's refund request under La. R.S. 47:301(10)(x), asserting the above-quoted version does not reflect the most recent expression of legislative will relative thereto and thus does not apply as written.

         Prior to 2008, La. R.S. 47: 301(10)(x) stated "For purposes of sales and use tax imposed by the state…, the terms 'retail sale' or 'sale at retail' shall not include the sale or purchase by a consumer of any fuel or gas, including but not limited to butane and propane, for residential use by the consumer." During the 2008 Second Extraordinary Session of the Louisiana Legislature, the Legislature passed two acts (HB 1, which became Act No. 1, and SB 7, which became Act No. 9) which revised La. R.S. 47:301(10)(x), but resulted in two different versions of this exemption provision. Act No. 1's revision created a broad tax exemption, while Act No. 9 created a more narrow tax exemption. Pursuant to House Bill 1 (hereafter "HB 1") / Act No. 1, and Senate Bill 7 (hereafter "SB 7") / Act No. 9, La. R.S. 47:301(10)(x) stated, respectively, as follows,

For purposes of sales and use tax imposed by the stateā€¦, the terms 'retail sale' or 'sale at retail' shall not include the sale or purchase by a person of any fuel or gas, including but ...

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