ATTORNEYS FOR PETITIONER:
BARTON T. SPRUNGER
MARK J. RICHARDS
ICE MILLER
Indianapolis, IN
ATTORNEYS FOR AMICUS CURIAE:
STEPHEN H. PAUL
BRENT A. AUBERRY
BAKER & DANIELS
Indianapolis, IN
STEVE CARTER
ATTORNEY GENERAL OF INDIANA
Indianapolis, IN
TED J. HOLADAY
DEPUTY ATTORNEYS GENERAL
Indianapolis, IN
IN THE
INDIANA TAX COURT
_____________________________________________________________________
GRAND VICTORIA CASINO & RESORT, LP, )
COMPANY, Successor in Merger with
)
Petitioner, )
)
v. ) Cause No. 49T10-0012-TA-125
)
INDIANA DEPARTMENT OF )
STATE REVENUE, )
)
Respondent. )
ON APPEAL FROM TWO FINAL DETERMINATIONS
OF THE INDIANA DEPARTMENT OF STATE REVENUE
_____
FOR PUBLICATION
June 16, 2003
FISHER, J.
Grand Victoria Casino & Resort, LP (Grand Victoria) appeals from two final determinations
of the Indiana Department of State Revenue (Department), which denied Grand Victoria’s claims
for refund of Indiana’s gross retail and use tax (sales tax) for 1996,
1997, 1998, and 1999 (the years at issue). The case is before
the Court on the parties’ cross-motions for summary judgment. Grand Victoria’s motion
for summary judgment raises the following issues:
I. Whether Grand Victoria is entitled to a refund of sales tax paid on
its purchase of personal property and services for its riverboat because it qualified
for the public transportation exemption;
III. Whether Grand Victoria is entitled to a refund of sales tax it paid
on the 1999 capital contribution of its riverboat.
The Department raises one issue in its motion:
IV. Whether Grand Victoria owes use tax on its riverboat for the 1996 tax
year, specifically,
A. Whether Grand Victoria owes use tax for the 1996 purchase of the riverboat
because its tax-exempt leasing of the riverboat ceased in 1999; and
B. Whether Grand Victoria owes use tax for 1996 because its riverboat was unlicensed
and therefore required to be registered for use in Indiana.
FACTS AND PROCEDURAL HISTORY
Grand Victoria is a Delaware limited partnership with its principle place of business
in Chicago. It is the successor in interest to Grand Victoria Casino
& Resort, LLC of Indiana (GV LLC). During the years at issue,
GV LLC and Grand Victoria were licensed riverboat gaming excursion operators pursuant to
Indiana Code Section 4-33 et seq.
The riverboat at issue in this tax appeal was originally acquired and used
in Louisiana by Queen of New Orleans at the Hilton Joint Venture (Hilton
Joint Venture). In January 1996, the predecessor to GV LLC contracted with
Hilton Joint Venture to purchase the riverboat; it subsequently assigned the contract to
a company called G.V. II, Inc. In turn, G.V. II, Inc. delivered
the riverboat to Rising Sun, Indiana and leased it to GV LLC.
On September 16, 1996, GV LLC obtained a riverboat owner’s license in accordance
with Indiana Code Section 4-33 et seq., after which it began operating the
riverboat as a gaming establishment on the Ohio River. For the 1996–1998
tax years, GV LLC paid sales tax on the riverboat lease payments, as
well as on purchases of: fuel; navigation equipment; maintenance, repair, and safety
equipment; tickets; uniforms; supplies for the riverboat pilot house; lighting; bathroom supplies; and
heating and air conditioning equipment.
On January 21, 1999, as a result of a merger of G.V. II,
Inc. and GV LLC, Grand Victoria was formed. At that time, Grand
Victoria received the riverboat as a capital contribution from G.V. II, Inc. and
GV LLC. The partners of Grand Victoria (who were the previous owners
of G.V. II, Inc.) received no cash or other property in connection with
the capital contribution of the riverboat. In 1999, Grand Victoria paid sales
tax on the capital contribution of the riverboat, as well as on purchases
of: fuel; navigation equipment; maintenance, repair, and safety equipment; tickets; uniforms; supplies
for the riverboat pilot house; lighting; bathroom supplies; and heating and air conditioning
equipment.
On December 30, 1999, Grand Victoria filed a claim for refund with the
Department, seeking a refund of sales tax for 1996 in the amount of
$378,239 plus interest.
See footnote On March 16, 2000, Grand Victoria filed three more
claims for refund with the Department, seeking refunds of sales tax paid for
1997, 1998, and 1999, in the amounts of $326,778, $855,759, and $2,128,013, respectively,
plus interest.See footnote In all, Grand Victoria sought $3,688,949 in refunds.
In the fall of 2000, the Department issued two final determinations in which
it denied $2,390,871 of Grand Victoria’s claims for the years at issue.
Consequently, on September 15, 2000, Grand Victoria initiated an original tax appeal.
On October 17, 2002, Grand Victoria filed a motion for summary judgment.
On January 14, 2003, the Department filed a cross-motion for summary judgment.
The Court held a hearing on both motions on April 22, 2003.
Additional facts will be supplied as needed.
ANALYSIS AND OPINION
Standard of Review
This Court hears appeals from denials of refunds by the Department de novo
and therefore is not bound by the evidence or the issues raised at
the administrative level. Ind. Code § 6-8.1-9-1(d) (Supp. 2002); Chrysler Fin. Co.,
LLC v. Indiana Dep’t of State Revenue, 761 N.E.2d 909, 911 (Ind. Tax
Ct. 2002), review denied. Summary judgment is appropriate only when there are
no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C). Cross-motions
for summary judgment do not alter this standard. Chrysler Fin., 761 N.E.2d
at 911.
Discussion
The Court will first address the issues raised in Grand Victoria’s motion for
summary judgment. It will then address the issue raised by the Department
in its motion.
I. Transportation exemption
The first issue is whether Grand Victoria is exempt from sales tax paid
on its purchase of personal property and services for the riverboat. Grand
Victoria argues that because it transported people by water for consideration, it qualified
for the public transportation exemption, which provides, “Transactions involving tangible personal property and
services are exempt from [sales] tax, if the person acquiring the property or
service directly uses or consumes it in providing public transportation for persons or
property.”
See footnote
Ind. Code § 6-2.5-5-27 (1998). The Department, on the other hand,
argues that Grand Victoria is not entitled to the exemption because it does
not transport people.
As this Court has previously stated, “it is well-settled that tax exemptions are
to be strictly construed against the taxpayer, and the taxpayer bears the burden
of proving entitlement to the exemption.” Tri-States Double Cola Bottling Co. v.
Indiana Dep’t of State Revenue, 706 N.E.2d 282, 283 (Ind. Tax Ct. 1999)
(citation omitted). “However, the Court must avoid reading an exemption provision so
narrowly so as to exclude cases rightly falling within the ambit of that
exemption provision.” Id. at 284. For purposes of the exemption, the
Department has defined “public transportation” as “the movement, transportation, or carrying of persons
and/or property for consideration by a common carrier, contract carrier, household goods carrier,
carriers of exempt commodities, and other specialized carriers performing public transportation service for
compensation by . . . water[.]” Ind. Admin. Code tit. 45, r.
2.2-5-61(b) (2001) (emphasis added). See also Meyer Waste Sys., Inc. v. Indiana
Dep’t of State Revenue, 741 N.E.2d 1, 9 (Ind. Tax Ct. 2000) (holding
that to qualify for the exemption, the movement, transportation, or carrying must be
for consideration), review denied.
The undisputed facts show that during the years at issue, Grand Victoria charged
adults $9 to purchase an admission ticket to the riverboat. After passengers
boarded the riverboat, it left its dock for a four-hour roundtrip cruise along
the Ohio River. Accordingly, Grand Victoria argues that in exchange for valuable
consideration, it transported passengers. The Court disagrees.
During the years at issue, the law required Grand Victoria to leave dock
before gaming could begin. See Ind. Code § 4-33-9-2 (1998) (providing that
“gambling may not be conducted while a riverboat is docked”) (amended by Pub.
L. 192-2002 § 16 (ss)). “[I]t is a general principle of law[]
that a promise to one to pay him, if he will do what
he is already bound to do by law . . . is without
consideration [] and cannot be enforced.” Ritenour v. Mathews, 42 Ind. 7,
14 (1873). See also Lincoln Operating Co. v. Gillis, 114 N.E.2d 873,
877 (Ind. 1953) (holding that “there could be no consideration for doing an
act which [a person] had a legal duty to perform”). Because the
law required Grand Victoria to leave dock before gaming could begin, its movement
of passengers was not consideration in exchange for the $9 ticket purchased by
each passenger to board the riverboat. See id. Consequently, Grand Victoria
does not satisfy the Department’s definition of “public transportation” for purposes of the
exemption. See 45 IAC 2.2-5-61(b); Meyer Waste Sys., 741 N.E.2d at 9.
The Court therefore DENIES Grand Victoria’s motion for summary judgment as to this
issue and GRANTS summary judgment to the Department.
II. Telecommunications services
The second issue is whether Grand Victoria is entitled to a refund of
sales tax it paid on the purchase of a satellite commercial broadcast that
originated in Kentucky and terminated in Indiana. The Department claims that the
broadcast is an “intrastate” transmission and is therefore taxable under Indiana Code Section
6-2.5-4-6. Grand Victoria, on the other hand, argues that the broadcast is
an “interstate” transmission and therefore is not subject to sales tax. Grand
Victoria is correct.
Indiana levies sales tax on the purchase of intrastate telecommunication services, meaning “the
transmission of messages or information by or using wire, cable, fiber optics, laser,
microwave, radio, satellite, or similar facilities.” Ind. Code § 6-2.5-4-6(a) (1998).
The law provides that the transmission in question must be “intrastate,” which means
that the transmission must originate and terminate within Indiana. See Ind. Code
§ 6-2.5-4-6(b)(1). See also Chicago & E. I. Ry. Co. v. Pub.
Serv. Comm’n of Indiana, 186 N.E. 330, 336 (Ind. 1933) (holding that “[i]f
the movement [of a commodity] is wholly within the state, it is intrastate”),
cert. denied; City of South Bend v. Martin, 41 N.E. 315, 317 (Ind.
1895) (noting that commerce and trade that are “entirely confined within the boundaries
of the state of Indiana” are “intrastate”); Black’s Law Dictionary 263 (7th ed.
1999) (defining “intrastate commerce” as “[c]ommerce that begins and ends entirely within the
borders of a single state”).
The parties agree that the transmissions in question originated in Kentucky and terminated
in Indiana. Thus, the services in question are not intrastate transmissions; they
are interstate.
See footnote
See Ind. Admin. Code tit. 45, r. 1.1-3-3(b) (2001) (defining
“interstate commerce” as “business conducted by the taxpayer between Indiana and another state
or a foreign country”); Chicago & E. I. Ry. Co, 186 N.E. at
336 (holding that “if that movement [of a commodity] is to or through
another state, it is interstate”). Because the telecommunication services in question are
not intrastate transmissions, Indiana’s sales tax does not apply to them. Thus,
Grand Victoria is entitled to a refund of sales tax it paid on
the purchase of the satellite broadcast. Accordingly, the Court GRANTS Grand Victoria’s
motion for summary judgment on this issue.
III. Capital contribution
The third issue is whether Grand Victoria is entitled to a refund of
the sales tax it paid on the 1999 capital contribution of its riverboat.
Grand Victoria contends that because the capital contribution was a transfer of
property without consideration, it does not constitute selling at retail and therefore is
not subject to sales tax. The Department concedes. (Resp’t Mem. in
Opp’n to Pet’r Mot. for Summ. J. at 11–12.) Because the capital
contribution was a transfer of property without consideration, the Court holds that it
was not a retail sale subject to sales tax. See Monarch Beverage
Co., Inc. v. Indiana Dep’t of State Revenue, 589 N.E.2d 1209, 1214 (Ind.
Tax. Ct. 1992) (holding that for purposes of the sales tax, a retail
sale necessarily involves the transfer of property for consideration). Accordingly, the Court
GRANTS Grand Victoria’s motion for summary judgment on this issue.
IV. Use tax
In spite of its concession that the capital contribution was not subject to
sales tax, the Department proposes an alternative legal theory in its cross-motion for
summary judgment. In effect, the Department argues that Grand Victoria’s entitlement to
a refund of the sales tax it paid on the capital contribution is
offset because it really owes use tax on the riverboat.
See footnote More specifically,
the Department asserts that while the leasing of a riverboat is typically tax-exempt
under Indiana Code Section 6-2.5-5-8,See footnote Grand Victoria lost this exemption when its predecessors,
GV LLC and G.V. II, Inc., merged in early 1999.
See Ind.
Code § 6-2.5-3-4(b) (1998) (providing “[i]f a person issues a [sales] tax exemption
certificate for the acquisition of tangible personal property and subsequently uses, stores, or
consumes that property for a nonexempt purpose, then the person shall pay the
use tax” (emphasis added)). Grand Victoria, on the other hand, contends that
the Department’s argument is inapplicable because, during 1999, its riverboat was classified by
statute as “real property” and, therefore, was outside the ambit of Indiana Code
Sections 6-2.5-3-4(b) and 6-2.5-5-8. Grand Victoria is correct.
Article 2.5 of the tax code (the sales and use tax statutes) deals
primarily with transactions involving personal property. The Legislature, however, has not defined
“personal property” for the purpose of Article 2.5. See generally I.C. §
6-2.5 et seq. Consequently, the Court looks to Article 1.1 (Indiana’s property
tax code) for the definition of “personal property.” See UACC Midwest, Inc.
v. Indiana Dep’t of State Revenue, 667 N.E.2d 232, 237 (Ind. Tax Ct.
1996) (stating that where the Legislature has not defined a term within a
specific article of the tax code, the Court may consider a statutory definition
of the term as it is used in another article of the tax
code).
Under Article 1.1 of the tax code, the Legislature has defined “personal property”
as “all other tangible property [] other than real property[.]” Ind. Code
§ 6-1.1-1-11(a)(6) (1998) (emphasis added). “Real property,” on the other hand, is
defined, inter alia, as “a riverboat licensed under the provisions of IC 4-33[.]”
See footnote
Ind. Code § 6-1.1-1-15(5) (1998). Accordingly, because a licensed riverboat is
classified as “real property,” it is necessarily excluded from the definition of “personal
property.” See I.C. §§ 6-1.1-1-11(a)(6); 6-1.1-1-15(5); UACC Midwest, 667 N.E.2d at
237. See generally I.C. § 6-2.5 et seq. The parties agree
that in 1999, the riverboat was licensed under the provisions of Indiana Code
Section 4-33 et seq. Thus, in 1999, the riverboat was classified by
statute as real property, not personal property. See I.C. § 6-1.1-1-15(5).
Therefore, the imposition of use tax under Indiana Code Section 6-2.5-5-8 had no
application to the riverboat at that time. See I.C. § 6-2.5-5-8.
Cf. I.C. § 6-1.1-1-15(5).
This, however, does not end the matter, because from April 1996 to September
1996, Grand Victoria’s riverboat was in Indiana but was not licensed under the
provisions of Indiana Code Section 4-33 et seq. Consequently, the Department argues
that because the riverboat was not licensed for these six months, it did
not satisfy the statutory definition of “real property” under Indiana Code Section 6-1.1-1-15(5).
As a result, the Department contends that the riverboat was personal property
subject to Indiana’s use tax under Indiana Code Section 6-2.5-3-2(b). That statute
imposes use tax on the “storage, use, or consumption of a . .
. watercraft”
if the watercraft “(1) is acquired in a transaction that is
an isolated or occasional sale; and (2) is required to be titled, licensed,
or registered by this state for use in Indiana.”
Ind. Code §
6-2.5-3-2(b) (1998).
The parties agree that the riverboat was acquired in a transaction that was
an isolated or occasional sale. Thus, the Court must determine (1) whether
an unlicensed riverboat satisfies the Legislature’s definition of real property, and, if not,
(2) whether a riverboat is a watercraft required to be registered by the
State for use in Indiana.
Our Supreme Court has said, “It is primarily for the Legislature to determine
the classification [of the subjects of taxation], and is never a judicial question
unless the classification under no circumstances can be viewed as reasonable. When the
classification in a law is questioned, if any state of facts reasonably can
be conceived that would sustain it, the existence of that state of facts
must be presumed.” Lutz v. Arnold, 193 N.E. 840, 847 (Ind. 1935)
(emphasis added) (internal punctuation omitted). Here, the Legislature has expressly classified a riverboat
as “real property” when it is “licensed under the provisions of IC 4-33[.]”
I.C. § 6-1.1-1-15(5) (emphasis added). The Legislature could have classified all riverboats—licensed
and unlicensed—as real property, but it did not.
See footnote
See Lutz, 193 N.E.
at 848 (stating that “the power of the state to classify [the subjects
of taxation] under section 23 of article 1 of the Indiana Constitution must
be conceded”). Accordingly, the Court holds that only those riverboats licensed under
Indiana Code Section 4-33 et seq. are real property pursuant to Indiana Code
Section 6-1.1-1-15(5). See I.C. § 6-1.1-1-15(5); Lutz, 193 N.E. 847–48. See
also Miller Village Properties Co., LLP v. Indiana Bd. of Tax Review, 779
N.E.2d 986, 989 (Ind. Tax. Ct. 2002) (stating “the enumeration of certain things
in a statute implies the exclusion of all others”); Subaru-Isuzu Automotive, Inc. v.
Indiana Dep’t of State Revenue, 782 N.E.2d 1071, 1077 (Ind. Tax. Ct. 2003)
(stating that the Court “applies the tax laws as the Legislature writes them”).
Because Grand Victoria’s riverboat was not licensed under Indiana Code Section 4-33
et seq. from April 1996 to September 1996, it did not satisfy the
Legislature’s statutory definition of “real property” during that period.
See footnote
The next question is whether an unlicensed riverboat is a watercraft required to
be registered for use in Indiana. The Department argues that riverboats fall
within the ambit of Indiana Code Section 9-31-3-1, which states, “[E]very
motorboat principally
used on the waters of Indiana must be registered [with the Bureau of
Motor Vehicles] and numbered.” Ind. Code § 9-31-3-1 (1998) (emphasis added).
However, the Department has not submitted any legal authority showing that the Legislature
or the Bureau of Motor Vehicles regards riverboats as motorboats for the purpose
of Indiana’s registration requirement.
See footnote Because the Department has not supported its argument
with sufficient legal authority, it is not entitled to judgment as a matter
of law on this issue. Accordingly, the Court DENIES the Department’s motion
for summary judgment.See footnote
Conclusion
For the aforementioned reasons, the Court DENIES Grand Victoria’s motion for summary judgment
as to Issue I and GRANTS summary judgment to the Department. The
Court GRANTS Grand Victoria’s motion for summary judgment as to Issues II and
III. The Court DENIES the Department’s motion for summary judgment. The
Court REMANDS this case to the Department to determine, consistent with this opinion,
the amount of refund owed to Grand Victoria.
Footnote:
In particular, Grand Victoria sought a refund of sales tax that GV
LLC paid on the riverboat’s lease payments and its purchases of personal property
and services.
Footnote: Grand Victoria’s 1997 and 1998 claims sought a refund of the sales
tax GV LLC paid on the riverboat lease payments and its purchases of
personal property and services for those years. Grand Victoria’s 1999 claim sought
a refund of sales tax it paid on purchases of personal property and
services, the sales tax it paid on the capital contribution, and the sales
tax it paid on the acquisition of commercial broadcast services that were transmitted
to Indiana from Kentucky.
Footnote: Grand Victoria also claims the sales tax it paid on the capital
contribution of its riverboat and on the riverboat lease payments falls under the
transportation exemption. However, given the Court’s holding in Sections III and IV,
infra,
it need not reach this issue.
Footnote:
The Department argues that because the transmissions in question are rebroadcast to
Indiana by a satellite in space, ambiguity is created as to the meaning
of an “intrastate” transmission under Indiana Code Section 6-2.5-4-6(b)(1). (
See Resp’t Mem.
in Opp’n to Pet’r Mot. for Summ. J. at 32–33.) More specifically,
the Department argues that the transmissions in question are not interstate or intrastate,
but “cosmic.” The Department contends that because the law taxes “satellite” transmissions,
the only solution that will save Indiana Code Section 6-2.5-4-6(b)(1) from nullification is
for the Court to construe the term “intrastate” so as to encompass “cosmic”
transmissions from satellites. The Department’s “cosmic” argument is, like the cosmos, amorphous.
Indeed, the Department’s concentration on satellites misses the point, namely, that the
transmissions in question originated in Kentucky—not the cosmos—and terminated in Indiana. Therefore,
the transmissions in question are interstate transmissions.
Footnote:
Indiana imposes sales tax “on retail transactions made in Indiana.”
Ind.
Code § 6-2.5-2-1(a) (1998); see also Ind. Code §§ 6-2.5-1-2 (1998) (defining “retail
transaction” as “a transaction of a retail merchant”); 6-2.5-4-1(b) (1998) (providing that a
retail merchant sells at retail when he acquires and resells tangible personal property).
Under Article 2.5 of the tax code, Indiana also imposes a use
tax—which is the functional equivalent of sales tax—on the acquisition of certain tangible
personal property that escapes sales tax, usually because the property was acquired in
a transaction that occurred outside of Indiana. See Rhoade v. Indiana Dep’t
of State Revenue, 774 N.E.2d 1044, 1047–48 (Ind. Tax Ct. 2002).
Footnote:
“Transactions involving tangible
personal property are exempt from [sales] tax if the
person acquiring the property acquires it for . . . leasing in the
ordinary course of his business without changing the form of the property.”
Ind. Code § 6-2.5-5-8 (1998) (emphasis added).
Footnote:
Although the law refers to the licensing of riverboats, the Indiana Gaming
Commission actually licenses persons to operate, supply, or work on riverboats; it does
not license the riverboats themselves.
See Ind. Code §§ 4-33-2-14; 4-33-2-15; 4-33-2-18
(1998). Thus, the Legislature’s reference to licensed riverboats is shorthand to signify
the various licenses needed to operate a riverboat as a gaming establishment pursuant
to Indiana Code Section 4-33 et seq.
Footnote:
It is reasonable to presume that unlicensed riverboats do not vindicate the
policy for allowing riverboat gaming in the first place: “to benefit the
people of Indiana by promoting tourism and assisting economic development.”
Ind. Code
§ 4-33-1-2 (1998). Such a presumption sustains the Legislature’s refusal to classify unlicensed
riverboats as real property. See Lutz v. Arnold, 193 N.E. 840, 847
(Ind. 1935).
Footnote:
Because a licensed riverboat is real property,
see opinion supra, lease payments
on such a riverboat would not be subject to sales tax. However,
given the Court’s holding that an unlicensed riverboat does not satisfy the statutory
definition of “real property,” the question arises whether Grand Victoria is entitled to
the transportation exemption for sales tax paid on the riverboat lease payments and
on the purchase of personal property and services for the six month that
the riverboat was unlicensed. The parties do not address this question in
their briefs.
Footnote:
Grand Victoria submitted evidence that since 1996, Indiana has required riverboats to
be registered with the U.S. Coast Guard only. (Aff. of Larry Buck
at ¶ 4.) The Department, on the other hand, submitted a copy
of
Indiana General Boating Guidelines (2001) and a copy of an Indiana Department
of Natural Resources memorandum titled “USCG’s New Vessel Documentation System” (March 26, 2002).
The Department argues that these documents indicate that riverboats are required to
be registered by Indiana. However, because these documents post-date the years at
issue, they are not relevant to the question at hand.
In the alternative, the Department argues that (1) riverboats are watercraft, (2) motorboats
are watercraft, therefore, (3) riverboats are motorboats and, thus, the registration requirements apply.
However, the Department’s argument falls prey to the fallacy of the undistributed
middle. “The nature of this fallacy becomes more obvious in the following
example: Cats are mammals. Dogs are mammals. Therefore, cats are dogs.” State
v. Star Enters., 691 So.2d 1221, 1229 n.8 (La. App. 4 Cir. 1996)
(citing Ruggero J. Aldisert, Logic for Lawyers 10-5 (1992)), aff’d. The Department’s
arguments are without merit.
Footnote:
The Department also argues that because Indiana Code Section 6-1.1-1-15(5) does not
expressly exempt riverboats in general from sales tax, then riverboats must, as watercraft,
be subject to that tax. (Resp’t Mem. in Opp’n to Pet’r Mot.
for Summ. J. at 17–18.) However, that statute pertains to licensed riverboats
only, which are removed from the ambit of Article 2.5.
See opinion
supra. Furthermore, the general rule is that tax-levying statutes are to be
construed against the Department. Consol. Coal Co. v. Indiana Dep’t of State
Revenue, 583 N.E.2d 1199, 1201 (Ind. 1991). To assume—as the Department does—that
tax-levying statues should be construed against the taxpayer absent an express exemption would
stand this rule on its head.