First Berkshire Bus. Trust v. Comm'r

• Decision Date: 24 November 2010
• Docket Number: No. 2009–850.,2009–850.
• Citation: 13 A.3d 232,161 N.H. 176
• Parties: FIRST BERKSHIRE BUSINESS TRUST and anotherv.COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF REVENUE ADMINISTRATION and another.
• Court: New Hampshire Supreme Court

161 N.H. 176

13 A.3d 232

FIRST BERKSHIRE BUSINESS TRUST and another

v.COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF REVENUE ADMINISTRATION and another.

No. 2009–850.

Supreme Court of New Hampshire.

Argued: Oct. 14, 2010.Opinion Issued: Nov. 24, 2010.

Rath, Young & Pignatelli, P.C., of Concord (Kenneth C. Bartholomew and Christopher J. Sullivan on the brief, and Mr. Bartholomew orally), for the petitioners.Michael A. Delaney, attorney general (Glenn A. Perlow, assistant attorney general, on the brief and orally), for the New Hampshire Department of Revenue Administration.DALIANIS, J.

The petitioners, First Berkshire Business Trust (First Trust), First Berkshire Properties, LLC (First LLC) and Second Berkshire Properties, LLC (Second LLC), appeal an order of the Superior Court ( O'Neill, J.) that partially affirmed and partially reversed a decision of the New Hampshire Department of Revenue Administration (DRA). We affirm.

The record reveals the following facts. The petitioners are three separate business organizations. First LLC and Second LLC are both wholly-owned subsidiaries of First Trust. This appeal arises out of two transactions involving real property located at 200 John E. Devine Road in Manchester. At issue is DRA's imposition of real estate transfer taxes, interest and penalties in connection with these transactions. See RSA 78–B:1, :7–a (2003); RSA 21–J:28 (2000), :33 (Supp.2009).

The first transaction occurred in April 2003, when First Trust obtained refinancing for the property and others through Wells Fargo Bank as a means of avoiding bankruptcy. As a condition of refinancing, Wells Fargo required First Trust to create a single purpose entity, subsequently known as First LLC. Wells Fargo required that: (1) title to the subject property be in First LLC's name; (2) a deed be executed listing First LLC as the property's legal owner; and (3) First LLC be listed as the borrower of the funds from Wells Fargo. First LLC entered into a mortgage with Wells Fargo on the property. On April 11, 2003, a deed from First Trust to First LLC was recorded, stating that the property was deeded from First Trust to First LLC for ten dollars and “other good and valuable consideration” to be paid by First LLC.

The second transaction occurred in the summer of 2003, when the property was refinanced again through another bank. First Trust sought refinancing to obtain better repayment terms. First Trust formed Second LLC because it anticipated that it would need another single purpose entity for the second refinancing. The other bank approved this. On June 23, 2003, a deed from First LLC to Second LLC was executed; it was recorded on July 9, 2003. The deed states that the property was deeded from First LLC to Second LLC “in consideration of the sum of Ten Dollars ... and other good and valuable consideration” to be paid by Second LLC.

In October 2004, DRA issued notices of assessment, including additional taxes, penalties and interest against First Trust in the amount of $102,271.84 and against First LLC and Second LLC in the amount of $100,556.16. Thereafter, the petitioners petitioned DRA to re-determine the taxes, penalties and interest owed. Following hearings, DRA issued a final order upholding its original assessment.

The petitioners appealed to the superior court, where DRA stipulated that the total amount of taxes, penalties and interest owed through March 31, 2009, was $316,920.00. The parties filed cross-motions for summary judgment. In ruling on these motions, the trial court upheld DRA's determination that the transfers (from First Trust to First LLC and then from First LLC to Second LLC) were subject to the real estate transfer tax. See RSA 78–B:1. The trial court further upheld DRA's decision to tax the transfers based upon the fair market value of the subject property. See RSA 78–B:9 (2003). The trial court ruled, however, that DRA erred by imposing penalties on the petitioners for their failure to pay the real estate transfer taxes when due. See RSA 21–J:33. This appeal followed.

We review the trial court's rulings on summary judgment by considering the affidavits and other evidence in the light most favorable to the non-moving party. See S. N.H. Med. Ctr. v. Hayes, 159 N.H. 711, 715, 992 A.2d 596 (2010). If this review does not reveal any genuine issues of material fact, i.e., facts that would affect the outcome of the litigation, and if the moving party is entitled to judgment as a matter of law, we will affirm. Id. We review the trial court's application of law to fact de novo. Id.

Resolving the issues on appeal requires statutory interpretation. In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. LaChance v. U.S. Smokeless Tobacco Co., 156 N.H. 88, 93, 931 A.2d 571 (2007). We review the trial court's statutory interpretation de novo. Estate of Gordon–Couture v. Brown, 152 N.H. 265, 266, 876 A.2d 196 (2005).

When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. LaChance, 156 N.H. at 93, 931 A.2d 571. We read words or phrases not in isolation, but in the context of the entire statute and the entire statutory scheme. Franklin v. Town of Newport, 151 N.H. 508, 509, 861 A.2d 777 (2004); Appeal of Ashland Elec. Dept., 141 N.H. 336, 340, 682 A.2d 710 (1996). When the language of a statute is plain and unambiguous, we do not look beyond it for further indications of legislative intent. Franklin, 151 N.H. at 509, 861 A.2d 777. We review legislative history to aid our analysis when the statutory language is ambiguous or subject to more than one reasonable interpretation. Id. at 510, 861 A.2d 777. We construe an ambiguous tax statute against the taxing authority rather than the taxpayer. Pheasant Lane Realty Trust v. City of Nashua, 143 N.H. 140, 143, 720 A.2d 73 (1998). However, we do not strictly construe statutes that impose taxes, but instead examine their language in the light of their purposes and objectives. Appeal of Town of Pelham, 143 N.H. 536, 538, 736 A.2d 1223 (1999).

The petitioners first argue that the transfers are not subject to the real estate transfer tax because the transfers did not constitute “bargained-for exchanges” within the meaning of RSA chapter 78–B. See RSA 78–B:1–a, II, IV (2003), V (Supp.2009). We disagree.

RSA 78–B:1, I(a) provides, in pertinent part: “A tax is imposed upon the sale, granting and transfer of real estate and any interest therein including transfers by operation of law.” Under RSA 78–B:1, I(a), “[e]ach sale, grant and transfer of real estate, and each sale, grant and transfer of an interest in real estate shall be presumed taxable unless it is specifically exempt from taxation under RSA 78–B:2.” The petitioners do not argue that the transactions at issue are specifically exempt from taxation pursuant to RSA 78–B:2 (2003).

RSA 78–B:1–a, V defines a sale, grant and transfer as “every contractual transfer of real estate, or any interest in real estate from a person or entity to another person or entity, whether or not either person or entity is controlled directly or indirectly by the other person or entity.” A contractual transfer is “a bargained-for exchange of all transfers of real estate or an interest therein.” RSA 78–B:1–a, II. By contrast, a noncontractual transfer is “a transfer which satisfies the 3 elements of a gift transfer: (a) [d]onative intent; (b) [a]ctual delivery; and (c) [i]mmediate relinquishment of control.” RSA 78–B:1–a, III (2003).

RSA chapter 78–B does not define “bargained-for exchange.” In Petition of Lorden, 134 N.H. 594, 600, 594 A.2d 1303 (1991), in the context of interpreting an earlier version of RSA chapter 78–B, we explained that a bargained-for exchange is an element of “consideration.” RSA 78–B:1–a, IV defines “consideration” as “the amount of money, or other property and services, or property or services valued in money which is given in exchange for real estate, and measured at a time immediately after the transfer of the real estate.” (Emphasis added.) Thus, the term “bargained-for exchange” as used in RSA 78–B:1–a, II is the exchange of “money, or other property and services, or property or services valued in money” for an interest in real estate. RSA 78–B:1–a, IV.

The petitioners contend that the transactions are not “bargained-for exchanges” because the parties to the transactions did not bargain at arm's length and the purchasing entities (First LLC and Second LLC) did not pay adequate value for the sales. To support these assertions, they mistakenly rely upon Petition of Lorden, which concerned whether the distribution of unencumbered corporate assets to stockholders upon the corporation's dissolution and liquidation was subject to the real estate transfer tax. Petition of Lorden, 134 N.H. at 595, 594 A.2d 1303. We held that the distribution was not subject to the tax because even if a “transfer” took place, the stockholders gave no consideration in exchange for it. Id. at 599, 594 A.2d 1303. They did not pay for the transfer of real estate in money or provide anything else in exchange for it. Id. at 599–600, 594 A.2d 1303. Here, by contrast, money, or other property and services, were exchanged when First LLC purchased the property from First Trust and when Second LLC purchased it from First LLC. Moreover, following Petition of Lorden, the legislature specifically amended the definition of “consideration” to include “the surrender of shareholder or beneficial interest holder rights in liquidation of a corporation.” Laws 1992, 203:1. Thus, on this issue, Petition of Lorden is no longer good law.

Contrary to the petitioners' assertions, bargaining at arm's length is not required for a transaction to constitute a “bargained-for exchange.” RSA 78–B:1–a, II gives as examples of “bargained-for exchange[s]” numerous transfers that do not involve...