BOARD OF TAX APPEALS
STATE OF LOUISIANA
, * B.T.A. DOCKET NO.
*
Petitioner *
*
versus*
*
TIM BARFIELD, ACTING SECRETARY, *
DEPARTMENT OF REVENUE, *
STATE OF LOUISIANA *
*
Respondent *
*
* * * * * * * * * * * * * * * * * * * * * * * * * *
PETITION TO REVIEW DENIAL OF REFUND/CREDIT
The Petition of , (hereinafter referred to as “Petitioner”), respectfully represents:
1.
The Board of Tax Appeals has jurisdiction over this matter involving the determination of an overpayment and a claim for refund/credit pursuant to La. R.S. 47:1407(1).
2.
Petitioner is an individual taxpayer who has a claim for refund/credit of State of Louisiana individual income tax. Respondent, Tim Barfield, is the acting Secretary of the Department of Revenue, State of Louisiana (the “Department”) and is made party Defendant herein pursuant to La. R.S. 47:1625.
3.
On ______, 20____, Petitioner, by means of [either an amended Louisiana individual income tax return, or an original Louisiana individual income tax return, or a claim for refund/credit] timely filed a claim for refund or credit of individual income taxes paid with the Department (the “Refund Claim”), claiming an overpayment (the “Overpayment”) in the amount of $______.
4.
This Overpayment occurred in connection with Petitioner’s purchase of a new motor vehicle registered in Louisiana which contains qualified clean-burning motor vehicle fuel property pursuant to La. R.S. 47:6035. A copy of Petitioner’s Refund Claim and the transmittal letter that accompanied it are attached hereto and made a part hereof for all purposes as Exhibit “A.”
5.
The Department disallowed Petitioner’s Refund Claim expressly in writing by a letter dated ______, 2013. A copy of the Department’s denial letter is attached hereto and made a part hereof for all purposes as Exhibit “B.”
6.
Pursuant to La. R.S. 47:1625, Petitioner hereby files this Petition appealing the Department’s denial of Petitioner’s Refund Claim.
7.
La. R.S. 47:6035 states that it was the intent of the Legislature to provide an incentive to persons or corporations to invest in qualified clean-burning motor vehicle fuel property, and that
any person or corporation purchasing such property as specified in Section 6035 would be entitled to a credit against income tax liability.
8.
La. R.S. 47:6035(B)(3) defines “qualified clean-burning motor vehicle fuel property” as meaning equipment necessary for a motor vehicle to operate on an alternative fuel and shall not include equipment necessary for operation of a motor vehicle on gasoline or diesel.
9.
La. R.S. 47:6035(B)(1) defines “alternative fuel” as meaning a fuel which results in emissions of oxides of nitrogen, volatile organic compounds, carbon monoxide, or particulates, or any combination of these which are comparably lower than emissions from gasoline or diesel and which meets or exceeds federal clean air standards, including but not limited to compressed natural gas, liquefied natural gas, liquefied petroleum gas, biofuel, biodiesel, methanol, ethanol, and electricity.
10.
La. R.S. 47:6035(C) states that the credit provided for in Subsection A of Section 6035 shall be allowed against individual or corporate income tax for the taxable period in which the property is purchased and installed, if applicable, and shall be equal to 50% of the cost of the qualified clean-burning motor vehicle fuel property.
11.
La. R.S. 47:6035(D) states that in cases where no previous credit has been claimed pursuant to Subsection C of Section 6035 for the cost of qualified clean-burning motor vehicle fuel property in a new motor vehicle purchased by a taxpayer with qualified clean-burning motor
vehicle fuel property installed by the vehicle’s manufacturer, and the taxpayer is unable to or elects not to determine the exact cost which is attributable to such property, the taxpayer may claim a credit against individual or corporate income tax for the taxable period in which the motor vehicle is purchased equal to 10% of the cost of the motor vehicle or $3,000, whichever is less, provided the motor vehicle is registered in Louisiana.
12.
La. R.S. 47:6035(A) states that if the tax credit allowed pursuant to the provisions of Section 6035 exceeds the amount of income taxes due, or if the taxpayer owes no state income taxes, any excess of the tax credit over the income tax liability against which the credit can be applied shall constitute an overpayment, as defined in R.S. 47:1621(A) and the Secretary must make a refund of the overpayment from the current collections of the taxes imposed by Chapter 1 of Subtitle II of this Title as amended. Paragraph E also states that the right to a refund of any overpayment shall not be subject to the requirements of R.S. 47:1621(B).
13.
La. R.S. 47:6035(G) states that the Secretary of the Department of Revenue, in consultation with the Secretary of the Department of Natural Resources, shall promulgate rules and regulations in accordance with the Administrative Procedure Act as are necessary to implement the provisions of Section 6035.
14.
Petitioner purchased a new motor vehicle containing qualified clean-burning motor vehicle fuel property as defined in La. R.S. 47:6035(B)(3) and that qualified clean-burning motor
vehicle fuel property does not include equipment necessary for operation of a motor vehicle on gasoline or diesel.
15.
The new motor vehicle purchased by Petitioner as described in paragraph 14 above is capable of operating on an alternative fuel as defined in La. R.S. 47:6035(B)(1) and the qualifying new motor vehicle was registered in Louisiana.
16.
Petitioner elected pursuant to La. R.S. 47:6035(D) not to determine the exact cost attributable to the qualified clean-burning motor vehicle fuel property and rather claimed a credit against individual income tax for the taxable period in which the motor vehicle was purchased equal to 10% of the cost of the motor vehicle or $3,000 whichever was less.
17.
Consequently, Petitioner maintains that Petitioner qualifies for and is entitled to the tax credit provided by La. R.S. 47:6035.
18.
The Department’s denial letter, previously identified as Exhibit “B,” states that the requested alternative fuel tax credit does not qualify for a refund/credit pursuant to Louisiana Administrative Code Section 61.I.1913.
19.
Louisiana Administrative Code Section 61.I.1913 is a regulation adopted by the Secretary of the Department of Revenue pursuant to the Administrative Procedure Act that became effective December 20, 2012.
20.
In pertinent part this regulation states in regard to the definition of the “cost of qualified clean-burning motor vehicle fuel property” that if a vehicle has the capability of being propelled by petroleum gasoline or petroleum diesel, the vehicle must have a separate fuel storage and delivery system for the alternative fuel that is capable of using only the alternative fuel.
21.
Further, the regulation states that qualified clean-burning motor vehicle fuel property shall not include equipment necessary for operation of a motor vehicle on petroleum gasoline or petroleum diesel and motor vehicle fuel property that is capable of also being used with non-alternative fuels, such as petroleum gasoline or petroleum diesel.
22.
The Secretary is utilizing the language in Regulation Section 61.I.1913 set forth above in Paragraph 21 to deny Petitioner’s refund claim as set forth in this Petition.
23.
Petitioner maintains that the portions of the regulation Section 61.I.1913 set forth in Paragraph 21 extend beyond the scope of the statute, La. R.S. 47:6035, and impose an additional requirement on the credit for investment in qualified clean-burning motor vehicle fuel property that was not intended by the Legislature of Louisiana. Consequently, to the extent of this language, the regulation is invalid and should not be allowed to be enforced against the Petitioner.
24.
Petitioner maintains that there is property in the qualifying motor vehicle that allows the motor vehicle to be propelled by an alternative fuel, mainly ethanol. The subject equipment does not constitute equipment that is necessary for the operation of the motor vehicle on gasoline or diesel. Accordingly, the taxpayer has invested in qualified clean-burning motor vehicle fuel property, and is entitled to the credit as provided by La. R.S. 47:6035.
25.
The Secretary of the Department specifically adopted Regulation Section 61.I.1913 to deliberately deny qualifying credits under La. R.S. 47:6035 to individuals and corporations who had invested in qualified clean-burning motor vehicle fuel property based on a belief that the outflow of funds resulting from these credits would have a negative fiscal impact on the State of Louisiana. Petitioner maintains that any change in the provisions of La. R.S. 47:6035 must be reserved to the Louisiana Legislature, and cannot be adopted by regulation.
26.
Further, Petitioner maintains that numerous individuals and corporations have received credits for investment in qualified clean-burning motor vehicle fuel property or refund/credit claims that were received by the Department prior to June 14, 2012 in regard to purchases of new motor vehicles that are no different than the motor vehicle purchased by Petitioner. The Department is acting in an arbitrary and capricious manner in denying refund claims that were submitted after June 14, 2012, in regard to similar motor vehicles with similar qualified clean-burning motor vehicle fuel property.
WHEREFORE, Petitioner prays:
1. That the Board of Tax Appeals, after duly examining the justice, merits, and correctness of this appeal, determine that Petitioner has a refundable overpayment in the amount of $______of Louisiana individual income tax, and that Board of Tax Appeals order the Department of Revenue to pay a refund in the amount of $______, plus interest as provided by law.
2. That Petitioner be granted such other and further relief as law, equity, the rules, procedures and practices of the Board of Tax Appeals, and the facts and circumstances of this case may permit.
Respectfully Submitted,
______
Please serve:
Tim Barfield
Acting Secretary
Department of Revenue
State of Louisiana
617 N. Third Street
Baton Rouge, Louisiana 70802
1254680
1