Columbia Gulf Transmission Co. v. Broussard

• Decision Date: 10 April 1995
• Citation: 653 So.2d 522
• Parties: 94-1650 La
• Court: Louisiana Supreme Court

Page 522

653 So.2d 522

94-1650 La. 4/10/95, 131 Oil & Gas Rep. 211

COLUMBIA GULF TRANSMISSION COMPANY v. Arnold A. BROUSSARD, Secretary of the Department of Revenue and Taxation, State of Louisiana.

No. 94-C-1650.

Supreme Court of Louisiana.

April 10, 1995.

Robert G. Pugh, Pugh, Pugh, & Pugh, Shreveport, for applicant.

James A. Burton, Joseph T. Hamrick, Jr., Simon, Peragine, Smith & Redfearn, New Orleans, for respondent.

Bruce J. Oreck, New Orleans, for Bruce J. Oreck amicus curiae.

John H. Cheatham, III, Washington, DC, for Interstate Natural Gas Ass'n amicus curiae.

[94-1650 La. 1] WATSON, Justice. ¹

The primary issue is whether LSA-R.S. 47:305E(1) or the United States Constitution's Commerce Clause prohibits a Louisiana use tax on "compressor fuel". Compressor fuel is natural gas which is diverted from an interstate pipeline to power the compressors which propel the natural gas through the pipeline.

[94-1650 La. 2] FACTS

Columbia Gulf Transmission Company, a Delaware corporation doing business in Louisiana, transports natural gas from offshore Louisiana to its affiliate in Kentucky through underground interstate pipelines. The gas loses pressure during the journey and is recompressed at four Louisiana compressor stations. Some of the pipeline gas is diverted to the compressor stations, where it powers the engines which boost the interstate gas pressure. The Louisiana Department of Revenue and Taxation seeks to impose a use tax on the compressor fuel which is consumed within the state.

In October of 1988, Columbia filed a petition to recover $10,717.77 in use taxes paid under protest. (Columbia agreed to escrow the use taxes for future months.) Columbia argued that a use tax on natural gas diverted from interstate gas and used solely to propel other interstate gas violates the Commerce Clause of the United States Constitution. Columbia also contended that the compressor fuel does not satisfy the requirements of R.S. 47:305E(1).

The trial court granted Columbia's motion for summary judgment, and the court of appeal affirmed. Columbia Gulf Transmission v. Broussard, 93 1161 (La.App. 1st Cir. 5/20/94), 637 So.2d 733. A writ was granted, 94-1650 (La. 10/7/94), 644 So.2d 626, to consider a possible conflict with McNamara v. [94-1650 La. 3] D.H. Holmes Co., 505 So.2d 102 (La.App. 4th Cir.1987), writ denied, 506 So.2d 1224, aff'd, 486 U.S. 24, 108 S.Ct. 1619, 100 L.Ed.2d 21 (1988), and to otherwise determine whether the summary judgment was legally correct. McNamara held that Louisiana's use tax on department store catalogs mailed into the state by out-of-state printers was valid.

LSA-R.S. 47:305E intends: "to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state, of tangible personal property after it has come to rest in this state and has become a part of the mass of property in this state."

The statute clearly intends taxation of property consumed in the state. Columbia contends that the natural gas consumed as compressor fuel has not come to rest in the state and has not become a part of the mass of property in the state. One state has held that compressor fuel does not come to rest and become a part of the state's mass of property merely because it is consumed. Texas Gas Transmission Corp. v. Benson, 223 Tenn. 279, 444 S.W.2d 137 (1969). We disagree.

When the natural gas compressor fuel is consumed, it comes to rest and becomes a part of the state's property. Fuel must necessarily come to rest as it is consumed. It ceases to exist; it is terminated; it is used in Louisiana; it [94-1650 La. 4] cannot be taxed in another state. Thus, the natural gas is subject to tax when it is consumed in the state under the language of the statute.

The next question is whether this use taxation is permitted by the Commerce Clause of the United States Constitution. Helson v. Commonwealth of Kentucky, 279 U.S. 245, 49 S.Ct. 279, 73 L.Ed. 683 (1929), decided that a use tax on fuel consumed by an interstate ferry boat was an unconstitutional burden on an instrumentality of interstate commerce. Midwestern Gas v. Wisconsin Dept. of Revenue, 84 Wis.2d 261, 267 N.W.2d 253 (1978), cert. denied 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978), and Michigan Wisconsin Pipe Line v. State, 58 Mich.App. 318, 227 N.W.2d 334 (1975), two other compressor fuel cases, were decided on Commerce Clause grounds. Both followed Helson. However, Helson has been superseded by Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977). Under Complete Auto Transit, Inc. v. Brady, a state tax statute which affects interstate commerce may survive a commerce clause challenge if the tax: (1) is applied to an activity having a substantial nexus with the taxing state; (2) is fairly apportioned; (3) does not discriminate against interstate commerce; and (4) is fairly related to the state's services.

[94-1650 La. 5] Questar Pipeline v. Tax Com'n, 817 P.2d 316 (Utah 1991), held that gas used by a pipeline company's Utah compressor stations was subject to the state's use tax. Questar decided that consumption of the compressor fuel came within the state's statute and met the Commerce Clause test of Complete Auto. Similarly, in Pledger v. Arkla, Inc., 309 Ark. 10, 827 S.W.2d 126 (1992), cert. denied 506 U.S. 870, 113 S.Ct. 203, 121 L.Ed.2d 144 (1992), the Arkansas Supreme Court determined that compressor fuel consumed in the state was subject to the state sales tax. The Arkansas Court relied on Complete Auto and noted that the gas consumed in Arkansas would not be subject to taxation in any other state.

Columbia's gas production has a substantial nexus with the State of Louisiana. Columbia's pipeline and four compressor stations carry natural gas from offshore Louisiana to the state's borders. Columbia pays Louisiana taxes on its employees and activity in the state.

There is no discrimination against interstate commerce. The tax is applied equally to intrastate and interstate pipelines. Gas in interstate commerce is taxed equally with intrastate gas when both are consumed within the state.

[94-1650 La. 6] The tax is fairly apportioned because it is imposed only on gas actually consumed in Louisiana's compressor stations. The gas is measured as it is removed and consumed. No other state can tax the same gas. The tax is fairly related to benefits provided by Louisiana. Columbia's employees enjoy Louisiana's roads, schools, fire and police protection. Columbia has the right to expropriate Louisiana private property. LSA-R.S. 19:2(5). Columbia's compressor fuel is fairly taxed because of the company's "significant economic presence in Louisiana, its many connections with the State, and the direct benefits it receives from Louisiana in conducting its business." D.H. Holmes Co., Ltd. v. McNamara, 486 U.S. 24, 33, 108 S.Ct. 1619, 1624, 100 L.Ed.2d 21, 29 (1988).

Mississippi imposes a tax on the natural gas used to fuel Mississippi compressors. Tennessee Gas Pipeline Co. v. Marx, 594 So.2d 615 (Miss.1992). Marx held that use taxes on compressor fuel met the four prongs of the Complete Auto test and did not violate the Commerce Clause.

Since the use tax on compressor fuel is valid under the Louisiana statute and the United States Constitution's Commerce Clause, a secondary issue arises and that is the Department of Revenue and Taxation's right to attorney's fees under LSA-R.S. 47:1512. The statute provides:

[94-1650 La. 7] The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.

The collector employed private counsel to represent the state in the appeal of this case and a ten percent surcharge for attorney's fees may be due by the tax debtor.

For the foregoing reasons, the summary judgment in favor of Columbia Gulf Transmission Company is reversed, and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

LEMMON, J., concurs and assigns reasons.

NORRIS, J., dissents and assigns reasons.

[94-1650 La. 1] NORRIS, Justice, dissenting.

I respectfully dissent. Columbia has met its burden of proving its entitlement to summary judgment under La.R.S. 47:305 E.

First, there is no genuine issue as to material fact. The majority ignores the record below; Columbia's Vice...