Keener v. Irby, 20-0488

CourtSupreme Court of West Virginia
Writing for the CourtJenkins, Chief Justice
Citation865 S.E.2d 519,245 W.Va. 777
Parties John KEENER d/b/a Mountaineer Inspection Services, LLC, Petitioner v. Matthew IRBY, State Tax Commissioner of West Virginia, Respondent
Docket NumberNo. 20-0488,20-0488
Decision Date08 November 2021

245 W.Va. 777
865 S.E.2d 519

John KEENER d/b/a Mountaineer Inspection Services, LLC, Petitioner
v.
Matthew IRBY, State Tax Commissioner of West Virginia, Respondent

No. 20-0488

Supreme Court of Appeals of West Virginia.

Submitted: September 15, 2021
Filed: November 8, 2021


Ronald G. Kramer, Kramer Legal Group, PLLC, Bridgeport, West Virginia, Allison S. McClure, McClure Law PLLC, Clarksburg, West Virginia, Attorneys for Petitioner.

Patrick Morrisey, Attorney General, William C. Ballard, Assistant Attorney General, Andrew L. Ellis, Assistant Attorney General, Charleston, West Virginia, Attorneys for Respondent.

Henry R. Glass, III, Glass Law Offices, South Charleston, West Virginia, Attorney for Amicus Curiae, West Virginia Association of Home Inspectors.

Jenkins, Chief Justice:

865 S.E.2d 521

Petitioner John Keener d/b/a Mountaineer Inspection Services, LLC ("Mr. Keener") appeals from an order entered June 4, 2020, by the Circuit Court of Taylor County. In that order, the circuit court determined that home inspectors do not meet the professional services tax exemption in West Virginia Code section 11-15-8 (eff. 2008) and that home inspection services are not professional services pursuant to West Virginia Code of State Rules section 110-15-8.1.1.1 (eff. 1993) (sometimes referred to as "Section 110-15-8.1.1.1"). The circuit court also concluded that the four-part test set forth in Section 110-15-8.1.1.1 creates a mandatory four-part test, and not a balancing test as determined by the Office of Tax Appeals ("OTA") and as argued by Mr. Keener.

On appeal, Mr. Keener urges this Court (1) to recognize the services rendered by home inspectors as professional services for purposes of the tax exemption in West Virginia Code section 11-15-8, (2) to conclude that the

865 S.E.2d 522

language of Section 110-15-8.1.1.1 creates a balancing test, not a mandatory, four-part test, and (3) to find that a four-year degree is not required to be deemed a professional. Having considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, we agree with the circuit court's ruling that home inspection services do not qualify as professional services under West Virginia law. We also agree with the circuit court's ruling regarding the four-year degree requirement. However, we find that the circuit court erred in concluding that each part of the four-part test must be met to be classified as a professional. Accordingly, for the reasons set forth below, we affirm, in part, and reverse, in part, the rulings made by the circuit court.1

I.

FACTUAL AND PROCEDURAL HISTORY

Mountaineer Inspection Services, LLC ("Mountaineer") is a single-member limited liability company with its principal place of business located in Taylor County, West Virginia. Mr. Keener, Mountaineer's sole member, is certified by the West Virginia State Fire Marshal to perform home inspection services. To obtain this certification, he passed a National Home Inspector Examination, completes at least eighty hours of instruction, completed high school, presented proof of general liability insurance, provided fingerprints, presented proof of a valid West Virginia business license, and completes sixteen hours of continuing education each year. See generally W. Va. C.S.R. § 87-5-4 (eff. 2006) and W. Va. C.S.R. § 106-6-4 (eff. 2021).

Between January 1, 2011, and September 30, 2015, Mountaineer, by and through Mr. Keener, failed to collect and remit consumers sales and service taxes to the West Virginia Tax Department ("Tax Department").2 In December of 2015, the Tax Department issued Mr. Keener a notice of assessment stating that he owed $31,137.96 in taxes and $5,048.24 in interest, for a total of $36,186.20. After receiving this notice, Mr. Keener filed a petition for reassessment with the OTA on February 5, 2016. Both parties agreed to waive an evidentiary hearing, and instead, they submitted the case to the OTA by filing briefs. Throughout the proceedings below, Mr. Keener maintained that he was exempt from collecting consumers sales and service tax because he and his home inspection company provided professional services—an exemption detailed in West Virginia Code section 11-15-8.3

On October 4, 2018, the OTA issued its Final Decision and affirmed the Tax Department's assessment, concluding that home inspection services are not professional services for purposes of West Virginia Code section 11-15-8. However, the OTA rejected the notion that West Virginia Code of State Rules section 110-15-8.1.1.1 requires a four-year degree for an activity to be considered professional, and further concluded that Section 110-15-8.1.1.1 cannot be characterized as a mandatory four-part test.

Both Mr. Keener and the Tax Department appealed the OTA's Final Decision.4 Upon consideration of the briefs submitted by the parties, the circuit court entered a final order on June 4, 2020, affirming in part and reversing in part the decision of the OTA. The circuit court concluded that home inspection

865 S.E.2d 523

services do not qualify as professional services for purposes of the tax exemption in West Virginia Code section 11-15-8 ; that the OTA erroneously ruled that a four-year college degree is not a requirement for an activity to be classified as a professional service; and that the OTA erred by ruling that Section 110-15-8.1.1.1 sets forth a balancing test as opposed to a true four-part test. Mr. Keener now appeals the June 4, 2020 decision of the circuit court.

II.

STANDARD OF REVIEW

This case is before this Court on appeal from the circuit court's order affirming in part, and reversing in part, a decision of the West Virginia Office of Tax Appeals.

In an administrative appeal from the decision of the West Virginia Office of Tax Appeals, this Court will review the final order of the circuit court pursuant to the standards of review in the State Administrative Procedures Act set forth in W. Va. Code § 29A-5-4(g) [1988]. Findings of fact of the administrative law judge will not be set aside or vacated unless clearly wrong, and, although administrative interpretation of State tax provisions will be afforded sound consideration, this Court will review questions of law de novo.

Syl. pt. 1, Griffith v. ConAgra Brands, Inc. , 229 W. Va. 190, 728 S.E.2d 74 (2012). Accord Syl. pt. 1, Ashland Specialty Co. v. Steager , 241 W. Va. 1, 818 S.E.2d 827 (2018).

West Virginia Code section 29A-5-4 (eff. 1998) provides:

The court may affirm the order or decision of the agency or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:

(1) In violation of constitutional or statutory provisions; or

(2) In excess of the statutory authority or jurisdiction of the agency; or

(3) Made upon unlawful procedures; or

(4) Affected by other error of law; or

(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Therefore, findings of fact from the OTA will not be set aside or vacated unless clearly wrong, and, although administrative interpretation of State tax provisions will be afforded sound consideration, this Court will review questions of law de novo.

Additionally, throughout this opinion, we are tasked with interpreting certain statutes and rules applicable to the issues sub judice. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of W. Va. , 195 W. Va. 573, 466 S.E.2d 424 (1995). Accord Syl. pt. 1, In re Tax Assessment Against Am. Bituminous Power Partners, L.P. , 208 W. Va. 250, 539 S.E.2d 757 (2000). "Interpretations of statutes by bodies charged with their administration are given great weight unless clearly erroneous." Syl. pt. 4, Security Nat'l Bank & Trust Co. v. First W. Va. Bancorp, Inc. , 166 W. Va. 775, 277 S.E.2d 613 (1981). Mindful of these principles, we now consider the parties’ arguments.

III.

DISCUSSION

The issue presented in this matter is whether the services provided by home inspectors are professional services. In the case sub judice, Mr. Keener asserts that the circuit court erred by determining that, as a home inspector, he does not provide professional services for purposes of a tax exemption espoused in West Virginia Code section 11-15-8. In particular, he contends that the circuit court erred in concluding (1) that Section 110-15-8.1.1.1 sets forth a mandatory four-part test for determining whether an occupation is professional, and (2) that a four-year college degree is required for an

865 S.E.2d 524

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