Marco Petroleum Indus., Inc. v. Comm'r, N.H. Dep't of Safety
| Decision Date | 12 May 2015 |
| Docket Number | No. 2014–117,2014–117 |
| Citation | 167 N.H. 619,117 A.3d 165 |
| Parties | MARCO PETROLEUM INDUSTRIES, INC. v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF SAFETY |
| Court | New Hampshire Supreme Court |
Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on the brief, and Jason R.L. Major orally), for the petitioner.
Joseph A. Foster, attorney general (John J. Conforti, assistant attorney general, on the brief and orally), for the respondent.
The petitioner, Marco Petroleum Industries, Inc. (Marco), appeals an order of the Superior Court (McHugh , J.) affirming a decision of the respondent, the Commissioner of the New Hampshire Department of Safety (DOS). Following an administrative hearing, DOS determined that Marco owed the State $155,070.71, including interest and penalties, due to Marco's failure to pay the New Hampshire road toll on fuel imported into the state. On appeal, Marco argues that DOS and the trial court erred by finding that Marco was required to pay the road toll because: (1) it was not a "distributor" of motor fuels under RSA 259:21 (2014); (2) it did not "sell" motor fuel under RSA 260:32 (2014) (amended 2014); and (3) it would be unfair to require Marco to pay the New Hampshire road toll because it had already paid the Massachusetts fuel tax. We affirm.
Before addressing the substance of Marco's claims, we provide, for context, an overview of the relevant fees assessed by government entities on the sale of motor fuels. The New Hampshire Motor Vehicle Road Toll Law, see RSA 260:30 (2014), imposes a road toll "upon the sale of each gallon of motor fuel sold by distributors thereof." RSA 260:32. A "distributor" is defined as:
Similarly, Massachusetts imposes a per gallon "fuel tax" that is paid by the purchaser at the time the fuel is sold. See Mass. Gen. Laws ch. 64A (2011 & Supp. 2014). As with the New Hampshire road toll, the Massachusetts fuel tax is a fee paid by "motor carriers operating their motor vehicles in Massachusetts ... to support the State's highway system." American Trucking v. Secretary of Admin., 415 Mass. 337, 613 N.E.2d 95, 98 (1993).
All of the states in the contiguous United States, including New Hampshire and Massachusetts, are parties to the International Fuel Tax Agreement (IFTA). See Illinois Cent. R.R. v. Tennessee Dept. of Revenue, 969 F.Supp.2d 892, 894 (M.D.Tenn.2013). The IFTA is a "multi-jurisdictional agreement that is intended to encourage cooperation in the administration and collection of motor fuel use tax." May Trucking Co. v. Oregon Dept. of Transp., 388 F.3d 1261, 1262 (9th Cir.2004) (quotations omitted). The IFTA does not impose a tax; "[r]ather, its member jurisdictions impose the motor fuel taxes, and [the] IFTA permits the uniform administration and collection of those taxes as they pertain to multi-state carriers." Id. at 1262–63. "Under [the] IFTA, an interstate motor carrier pays all its state fuel taxes quarterly to the ‘base jurisdiction’ in which it registers as a licensee under [the] IFTA." Id. at 1263. "The base jurisdiction then forwards the appropriate tax amounts to each individual state in which the motor carrier operates." Id. "That arrangement prevents a motor carrier from having to make multiple tax payments to the different states in which it operates." Id.
The material facts are undisputed. On multiple occasions between June 2008 and March 2011, Marco contracted with Irving Oil Terminals, Inc. (Irving) for the purchase of diesel fuel. These purchases totaled 603,138 gallons. Each purchase included the transfer of fuel by Irving, at its facility located in Revere, Massachusetts, into trucks operated by P.S. Marston, LLC (Marston). Marston and Marco share a business address in North Hampton, New Hampshire. Marston transported the fuel from Revere to Marco's facility in North Hampton, New Hampshire. Marston invoiced Marco for the deliveries, and Marco paid those bills. The bill of lading issued by Irving for each sale was identical except for the date of sale, amount of fuel purchased, and the invoice amount. Also in connection with each purchase, Marco paid the Massachusetts fuel tax to Irving, and Irving then forwarded the funds to Massachusetts.
In 2012, DOS audited Marco's "Motor Fuel Distributor" account. DOS concluded that Marco "imported motor fuel into [New Hampshire] without a Motor Fuel Distributor license and therefore failed to report and pay the required [New Hampshire] road toll" on the 603,138 gallons of fuel purchased from Irving. DOS calculated that Marco owed the State $155,070.71. Marco challenged the audit by DOS and requested an administrative hearing.
DOS held a hearing in September 2012. Marco argued that it was not liable for the New Hampshire road toll because it was not a "distributor" of motor fuels but, rather, the end purchaser. The DOS road toll audit manager asserted that Marco acted as a "distributor" without a current Motor Fuel Distributor license or IFTA license and unlawfully imported motor fuel into New Hampshire. DOS rejected Marco's argument, finding that Marco acted as a distributor of motor fuel and that the assessment was proper. Marco appealed to the superior court.
The parties filed cross-motions for summary judgment. Marco argued that, because Irving hired Marston to deliver the fuel to Marco in New Hampshire, Irving, rather than Marco, acted as the distributor for purposes of the New Hampshire road toll. In response, DOS argued that Irving merely transferred the fuel to Marston in Massachusetts, and that Marco was the distributor because, under RSA 259:21, Marco "import[ed] or cause[d] to be imported," the fuel into New Hampshire. The court agreed with the ruling by DOS, concluding that "Marco did purchase fuel on which a road toll had not been paid, and it transported the fuel across the State's highways." This appeal followed.
On appeal, Marco argues that Irving, not Marco, acted as a "distributor" of motor fuels under RSA 259:21 and 260:32, and that DOS should recover the New Hampshire road toll from Irving. DOS counters that Marco caused the fuel to be imported into New Hampshire and, as such, acted as a "distributor" and is responsible for paying the New Hampshire road toll. Marco next argues that, because it used the fuel only in its own vehicles, there was no "sale" of motor fuel by Marco, which is required to trigger payment of the road toll under RSA 260:32. DOS responds that Marco failed to preserve this argument because Marco raises the issue for the first time on appeal. Alternatively, DOS maintains that the statutory definition of "sale" includes "any use of motor fuel by a distributor." RSA 259:95 (2014). Finally, Marco contends that it is unfair to require it to pay the New Hampshire road toll when there is no dispute that it has already paid the Massachusetts fuel tax on the same gallons of fuel, and that DOS should seek to recover the road toll from Massachusetts. DOS counters that it is undisputed that the New Hampshire road toll has not been paid, and, if Marco had the proper distributor licenses, the fuel tax paid by Marco—which Irving then paid to Massachusetts—could have been reallocated to New Hampshire in accordance with the IFTA.
In reviewing the trial court's ruling on cross-motions for summary judgment, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law. Bovaird v. N.H. Dep't of Admin. Servs., 166 N.H. 755, 758, 103 A.3d 1207 (2014). If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment. Id. In this case, the superior court found that "[t]he parties do not dispute the material facts; they dispute the legal import of those facts." We review the trial court's application of the law to the facts de novo. Id.
This appeal requires interpretation of certain provisions of the Motor Vehicle Road Toll Law. "In matters of statutory interpretation, this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Rymes Heating Oils, 151 N.H. at 474, 862 A.2d 49 (quotation omitted). "We begin by reviewing the plain and ordinary meaning of the words used and consider them not in isolation but in context of the overall statute." Id. "In doing so, we are better able to discern the legislature's intent, and therefore better able to understand the statutory language in light of the policy sought to be advanced by the entire statutory scheme." Id. (quotation omitted).
Marco first argues that DOS erred because, contrary to the finding by DOS, it was Irving—rather than Marco—that acted as a "distributor" as defined in RSA 259:21. In relevant part, the statute states: " ‘Distributor,’ ... shall mean any person,...
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