W. C. Fore v. Miss. Dep't of Revenue, et al.
| Docket Number: | 2010-CA-02098-SCT Linked Case(s): 2010-CA-02098-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-14-2012 Opinion Author: Presiding Justice Carlson Holding: Affirmed |
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| Additional Case Information: |
Topic: Tax assessment - Commercial nonhazardous solid-waste management facilities - Section 33-15-31(b) - Right to equal protection - Class of one - Similarly situated operators - Assessment of fees - Section 17-17-205(e) Judge(s) Concurring: Waller, C.J., Randolph, Lamar, Kitchens, Chandler, Pierce and King, JJ. Non Participating Judge(s): Dickinson, P.J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 01-22-2010 Appealed from: Harrison County Chancery Court Judge: Eugene Fair, Jr. Disposition: Affirmed the tax commission's decision. Case Number: C2401-09-00748-1 |
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| Note: | The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | W. C. Fore d/b/a W. C. Fore Trucking, Inc. |
BOBBY R. LONG |
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| Appellee: | Mississippi Department of Revenue f/k/a Mississippi State Tax Commission, Mississippi Department of Environmental Quality and Mississippi Commission on Environmental Quality | GARY WOOD STRINGER ABIGAIL MARSHALL MARBURY CAROL ANN WALKER ROY FURRH | ||
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| Topic: | Tax assessment - Commercial nonhazardous solid-waste management facilities - Section 33-15-31(b) - Right to equal protection - Class of one - Similarly situated operators - Assessment of fees - Section 17-17-205(e) |
| Summary of the Facts: | The motion for rehearing is denied, and this opinion is substituted for the original opinion. After Hurricane Katrina hit the Mississippi Gulf Coast, W. C. Fore entered into a contract with Harrison County to remove the large amount of debris that was left behind. The Mississippi State Tax Commission then assessed a fee of $1.00 per ton of debris removed. Fore appealed the assessment to the MSTC Board of Review, claiming that the fee did not apply to emergency waste removal. The Board of Review upheld the assessment. Fore appealed the Board of Review’s decision to the MSTC Full Commission, which also affirmed the assessment. Fore appealed to chancery court which upheld the assessment. Fore appeals. |
| Summary of Opinion Analysis: | Issue 1: Commercial nonhazardous solid-waste management facilities Fore argues that the Delancey and LoBouy Road sites were not commercial nonhazardous solid-waste management facilities and were not subject to the tax for such facilities. Fore contends that the two sites were used for emergency purposes only and that section 33-15-31(b) absolves any obligation to pay a fee for waste disposal. Fore’s reading of the statute is misplaced. Section 33-15-31(b) suspends existing laws and obligations that are inconsistent with the provisions of the Emergency Management Law. It does not, however, suspend all existing laws and obligations. Thus, the chancery court’s finding was supported by substantial evidence and does not contain a misapprehension of the law. Issue 2: Right to equal protection Fore claims that the MSTC gave other similarly situated emergency site operators preferential treatment – lowering or waiving fees for some operators, but not others. He argues that the MSTC’s and MDEQ’s treatment of the waste management facilities was arbitrary and capricious and that the unequal treatment violated his right to equal protection. In class-of-one cases, the plaintiff must prove two elements: that he or she was treated differently from others similarly situated; and that there was no rational basis for disparate treatment. Fore is not similarly situated with the operator who staged debris, rather than disposed of it. He also is not similarly situated with the operators who charged little or no fee for the disposal. However, as to those who are similar to Fore – operators who disposed of waste and charged a regular fee – Fore has failed to show that he was treated differently from those operators. Evidence was presented at trial showing that the MSTC is either in the process of auditing the operators or collecting fees from the operators. Simply because one operator may be further along in the process of being audited or paying taxes does not make the treatment of that operator different from another for equal-protection purposes. Although the chancellor erred in finding that Fore was not a class of one, the chancellor’s finding that Fore was not treated differently from other similarly situated operators contained no error of law and was supported by substantial evidence. Issue 3: Assessment of fees Fore argues that if he is subject to the fees assessed by the MSTC, he should not have to pay the fees attributable to the portion of the Delancey site that was used by Phillips and Jordan, Inc. Section 17-17-205(e) defines “operator” as “any person, corporation, county, municipality or group of counties or municipalities acting jointly operating a sanitary landfill or having any interest in the land whereon a sanitary landfill is or has been located.” The evidence at trial demonstrated that Fore was the operator of the entire Delancey site. Fore charged P&J a fee for disposing of debris on the Delancey site and regularly sent P&J invoices for the dumping. Fore also testified that he covered and closed the entire Delancey site after the debris disposal and that he was responsible for making sure the entire site was closed. Further, the MDEQ communicated directly with Fore when concerns arose about the Delancey site. Thus, the chancellor’s judgment was supported by substantial evidence. |
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