BEFORE THE STATE BOARD OF EQUALIZATION
FOR THE STATE OF WYOMING
IN THE MATTER OF THE APPEAL OF )
BP AMERICA PRODUCTION COMPANY )
FROM A NOTICE OF VALUATION ) Docket No. 2004-89
FOR TAXATION PURPOSES BY THE )
DEPARTMENT OF REVENUE )
(Production Year 2003, Whitney Canyon) )
ORDER DISMISSING APPEAL OF NOTICE OF VALUATION
THIS MATTER came on for hearing on July 22, 2004, pursuant to an Order of the Wyoming State Board of Equalization (“Board”), after the Board issued a Notice of Intent to Dismiss on July 2, 2004.
On June 29, 2004, BP American Production Company (“BP”) filed a case notice to appeal a Notice of Valuation issued by the Wyoming Department of Revenue. When a taxpayer files the case notice which begins the appeal process, it is obliged to file a copy of the decision of the Department of Revenue which is the subject of the appeal. Rules, Wyoming State Board of Equalization, Chapter 2, §5(c). The Board routinely examines new case notices to assure that it has jurisdiction to hear the taxpayer’s claims. If the date of the decision attached to the case notice raises the possibility that the appeal is untimely, the Board issues a notice of intent to dismiss, and provides the taxpayer with the opportunity to demonstrate that the appeal was timely filed.
By reference to the Notice of Valuation dated May 24, 2004 attached to BP’s case notice, which provided the only date initially available to determine jurisdiction, the Board calculated that BP’s appeal was due on June 24, 2004, and so was untimely filed on June 29, 2004. On July 2, the Board issued its Notice of Intent to Dismiss. On July 19, 2004, BP filed a written Response.
At the hearing held on July 22, 2004, BP primarily argued that the Department failed to postmark its Notice of Value as required by statute, because the Department’s Notice of Value was mailed using a postage meter. BP further argued that in the absence of a postmark within the meaning of the statute, the statutory limitation for filing objections to the Department’s valuation never began to run, from which it follows that BP’s appeal could not be untimely. Since the Department’s use of such a postage meter has apparently been standard practice for many years, the practical effect of this argument would be to repeal the statutory deadline for all oil and gas taxpayers who received a similarly posted Notice of Valuation but have not previously filed objections. We will conclude that the postage meter mark satisfies the statutory requirement for a postmark.
In support of its Response to the Board’s Notice of Intent to Dismiss, BP called one witness from the Department of Revenue, Mr. Patrick Parsonault, and submitted a supplementary affidavit. Based on this evidence, the pertinent dates are not in dispute. The Department internally approved the Notice of Valuation on May 24, 2004, and posted the Notice of Valuation to its records that same evening. Under a standard practice in place for over sixteen years, the State’s Central Mail service would have gathered up the Notice of Valuation on the morning after it was posted to the Department’s records, i.e., May 25, 2004. Central Mail would then have mailed the Notice of Valuation. BP asserts in its Response that it “believes that the [Notice of Valuation] has a ‘Pitney Bowes’ date of May 25, 2004.” This date supports an inference that the Notice of Valuation was mailed in the customary manner. The postage meter mark was apparently the only evidence of that postage had been paid and that the Notice of Valuation had been mailed. BP did not receive the Notice of Valuation until June 1, 2004.
Article 14, Chapter 2, of Title 39 of the Wyoming Statutes pertains to the taxation of oil and gas. Chapter 2 includes general and specific provisions pertaining to taxpayer appeals. For the purposes of this case, the general appeal provision states:
(i) Any person aggrieved by any final administrative decision of the department may appeal to the state board of equalization. Appeals shall be made in a timely manner as provided by rules and regulations of the board by filing with the board a notice of appeal specifying the grounds therefore...
Wyo. Stat. Ann. §39-14-209(b)(i). The Board has adopted such rules, and the Board’s Rules provide that the taxpayer’s case notice must be filed within thirty days of the final administrative decision at issue, or the date of mailing of the final administrative decision as evidenced by a postmark, whichever is later. Rules, Wyoming State Board of Equalization, Chapter 2, §5 (e) and (f).
The pertinent specific provision of the statute provides:
(iv) Following determination of the fair market value of crude oil, lease condensate or natural gas production the department shall notify the taxpayer by mail of the assessed value. The person assessed may file written objections to the assessment with the state board of equalization within thirty (30) days of the date of postmark and appear before the board at the time specified by the board....
Wyo. Stat. Ann. §39-14-209(b)(iv). We note that the statute specifies that the Department of Revenue must notify the taxpayer by mail, to the exclusion of alternative means of communication, and that the statute allows the taxpayer only thirty days from the date of postmark for an appeal.
The specific provision of Wyo. Stat. Ann. §39-14-209(b)(iv), which relies on the date of the postmark, governs the more general provision of our Rules.
The Board’s Rules further provide that, “Any case notice not timely filed shall be dismissed.” Rules, Wyoming State Board of Equalization, Chapter 2, §5 (g). Agency rules adopted pursuant to statutory authority and properly promulgated have the force and effect of law. State ex rel. Dept. of Revenue v. Buggy Bath Unlimited, Inc., 18 P.3d 1182 (Wyo. 2001). The use of mandatory language in the Rules eliminates the Board’s discretion to ignore the stated deadlines. See Russell v. State ex rel Wyoming Workers Safety and Compensation Division, 944 P. 2d 1151 (Wyo. 1997).
Based on the evidence presented to us, it is now clear that more than thirty days elapsed between the date of mailing, May 25, 2004, and the date that the appeal was filed, June 29, 2004. If the Pitney Bowes mark is a postmark, we are obliged to dismiss BP’s appeal.
BP’s Response does not exclusively rest on the postmark argument. BP’s discussion of authorities does not, however, cite the leading case which unequivocally describes both our duty and the limits of our subject matter jurisdiction, in circumstances where the deadline for filing was missed – as here – by a matter of days. The Wyoming Supreme Court described the situation and the outcome as follows:
The Department denied Antelope Valley’s exemption request by letter dated October 15, 1997. The time period for filing the appeal of that decision began to run on Thursday, October 16, 1997, and ended on Friday, November 14, 1997. The case notice of appeal was post marked November 17, 1997. Therefore, Antelope Valley did not file its case notice within the time period required by the Board’s Rule. Timely filing of a request for administrative review of an agency decision is mandatory and jurisdictional. Fullmer [v. Employment Security Commission], 858 P.2d at 1124. Antelope Valley’s untimely filing of its case notice of appeal deprived the Board of subject matter jurisdiction over the appeal. The Board did not have jurisdiction to hear the case, and dismissal was appropriate.
Antelope Valley Improvement Dist. v. State Board of Equalization, 992 P.2d 563, 567 (Wyo. 1999). Accord, Dept. of Revenue and Taxation v. Irvine, 589 P.2d 1295, 1301-1302 (Wyo. 1979).
Antelope Valley Improvement District directly addresses BP’s suggestion that dismissal of its appeal may constitute denial of due process:
Antelope Valley argues that it was denied due process because it did not have the benefit of the full thirty days provided for in the rule to respond. However, nothing in the unambiguous language of Section 5 provides for the running of the appeal period from the date of mailing or the date of receipt of notice as opposed to the date on which the Department rendered its decision. A rule that provides thirty days after the date of the decision to file an appeal does not entitle the recipient to file an appeal thirty days after actual notice of the decision.
As long as the party is afforded a reasonable opportunity to respond to a ruling and to appeal, due process is not violated. Jones v. Jones, 903 P.2d 545, 548 (Wyo. 1995). “Due process merely affords the opportunity to be heard.” Id. Antelope Valley does not contend that it did not have time to respond in this case. Absent allegations that Antelope Valley was denied a reasonable opportunity to respond to the Department’s decision, due process is not implicated. Here, Antelope Valley received all the notice required by law and did not demonstrate any prejudice or harm. See Palmer v. Crook County Sch. Dist. I, 785 P.2d 1160, 1163 (Wyo. 1990). The Board’s determination that the case notice was untimely filed was in accordance with law.
Antelope Valley Improvement Dist., 992 P.2d at 567.
To avoid the plain import of Antelope Valley, BP initially argues that the Board may accept untimely appeals where there has been excusable neglect. BP’s authority for this argument is the Wyoming Rules of Appellate Procedure. Wyoming Rules of Appellate Procedure, Rule 2.01; see also Rule 12.04(b). Rule 2.01(a)(1) authorizes a trial court to extend the time for filing the notice of appeal for up to fifteen days “upon a showing of excusable neglect.” Wyoming Rules of Appellate Procedure, Rule 2.01(a)(1).
BP does not and cannot argue that the Rules of Appellate Procedure apply to the case before us. Specifically, BP does not argue that an administrative tribunal such as this Board can extend its subject matter jurisdiction by use of analogy to rules which apply to courts. Likewise, BP does not argue that the Department of Revenue, positioned something like the trial court of the Appellate Rules, has any authority to extend the time for appeal from a final decision. However, Antelope Valley suggests that relief may be granted where the circumstances of the particular case give rise to due process concerns: “Absent allegations that Antelope Valley was denied a reasonable opportunity to respond to the Department’s decision...” Antelope Valley Improvement Dist., 992 P.2d at 567. We will accordingly consider Rule 2.01 for the purpose of the guidance it might provide in lending content to the general due process concern articulated in Antelope Valley.
The contours of excusable neglect have been established by the Wyoming Supreme Court:
Excusable neglect is measured on a strict standard to take care of genuine emergency conditions such as death, sickness, undue delay in the mail and other situations where such behavior might be the act of a reasonably prudent person under the circumstances. Crossan v. Irrigation Development Corp., Wyo., 598 P.2d 812 (1979). Even if we could consider appellant’s excuses, we do not consider failure to make suitable financial arrangements for representation or the press of other business or secretarial troubles as an excuse for failure to timely file a brief or, more importantly, to seek a further extension of time for filing of a brief prior to expiration of the time specified by the district judge’s order. Appellant may not dillydally with appellate time limits. Counsel should reject employment whenever the circumstances do not permit timely representation....[In this case, n]o unavoidable casualty or overwhelming necessity is demonstrated. There is no proper showing that appellant was prevented from arranging the preparation, filing and service of briefs or from securing an extension of time under the rules by any circumstance reasonably beyond his control.
Elliott v. State, 626 P.2d 1044, 1049-1050 (Wyo. 1981). The principle of “genuine emergency situations” stated in Elliott for the filing of briefs surely applies with equal force to deadlines for appeal.
The Wyoming Supreme Court has also made it clear that a showing of excusable neglect is inherently factual:
But [Rule 2.01] requires more than the movant’s statement of the grounds; it requires ‘a showing of excusable neglect.’ Although some motions don’t require the presentation of facts for resolution, others inherently require a factual presentation. In our judgment, a motion for an extension of time for filing a notice of appeal grounded upon a showing of excusable neglect is one of those motions that inherently requires a factual presentation. It is elementary that the district court must be presented facts upon which to exercise its discretion. The presentation of facts at a motion hearing occurs in either one of two ways or in a combination of the two ways. The movant either submits sworn written testimony of a witness by way of affidavit or deposition, or sworn live testimony, by way of direct examination of a witness. We have cautioned before that
[m]atters alluded to by attorneys at motion hearings or in briefs are not testimony and cannot be considered.
State v. Zespy, 723 P.2d 564, 565 (Wyo. 1986)(citation omitted).
Venable v. State, 854 P.2d 714, 716-717 (Wyo. 1993).
The only factual showing BP has made rests on a claim that there has been undue delay in the mail. In this regard, BP points exclusively to the lapse of time between the date of the Notice of Valuation and the date that the Notice was received at BP’s offices. BP has provided no evidence about the usual time that it takes for mail to reach its offices. BP has accordingly failed to make the kind of factual showing that occurred in Bosler v. Morad, 555 P.2d 567 (Wyo. 1976). In that case, the appellant and his attorney apparently testified that a late-arriving notice of appeal was “the only instance during the course of this litigation in which mail from Laramie to Casper took more than two days to be delivered...” 555 P.2d at 570.
We decline to draw the inference that the time it took for mail to be delivered in this case rises to the level of a due process concern. The Wyoming Supreme Court’s ruling in Antelope Valley Improvement District requires a contrary conclusion: “A rule that provides thirty days after the date of the decision to file an appeal does not entitle the recipient to file an appeal thirty days after actual notice of the decision.” Antelope Valley Improvement Dist., supra, 992 P.2d at 567.
This brings us to BP’s challenge to the use of a Pitney Bowes postage meter to postmark the Notice of Valuation. Broadly stated, BP argues that “this privately-metered date is not proof of the date of mailing,” and concludes that there was no “postmark” within the meaning of the statute and our Rules. [Response, pp. 2-4]. BP reasons that “BP was never properly served with its Notice of Valuation,” and therefore “no time to appeal ever began to accrue.” [Response, p. 4].
As a starting point for our analysis of BP’s postmark argument, we note that neither the statute nor the Board’s regulations prohibit the use of postage meters to create a postmark.
Next, we find and conclude that BP has provided no evidence that the postage meter mark in this case incorrectly recorded the date of mailing, or that there has otherwise been an abuse of the postage meter. This stands in stark contrast to cases, including those cited by BP, in which an abuse or criminal activity is indicated. E.g., Albaugh v. State Bank of La Vernia, 586 S.W.2d 137 (Tex. App. 1979); United States v. Maude, 481 F.2d 1062 (D. C. Cir. 1971). In view of the evidence presented to us, we are unpersuaded by theoretical concerns that a postage meter used by the State of Wyoming “lacks the inherent reliability of the official United States postmark.” Copyright, Inc. v. Unemployment Compensation Board of Review, 739 A.2d 219 (Pa. Cmwlth. 1999). Specifically, we are unwilling to assume that the Department or the State of Wyoming have any motive to manipulate a postmark date, such as a private claimant might have. Id.
In the end, BP’s argument becomes a matter of statutory interpretation: does the phrase “date of postmark,” as those words are employed in Wyo. Stat. Ann. §39-14-209(b)(iv), authorize the use of a postage meter? At our hearing, the Department stated its view that it would be “nonsensical and absurd” to require a United States postmark to the exclusion of a postage meter. [Transcript, p. 27]. Like the Supreme Court, we defer to this conclusion if it is in accordance with law. Matter of Cordova, 882 P.2d 880, 882 (Wyo. 1994).
The initial step in arriving at a correct interpretation of a statute is an enquiry respecting the ordinary and obvious meaning of the words employed. Parker Land & Cattle Company v. Wyo. Game & Fish, 845 P.2d 1040, 1042 (Wyo. 1993). Unfortunately, dictionary definitions do not consistently resolve the matter. One authority defines postmark as “an official postal marking on a piece of mail; specif: a cancellation mark showing the post office and date of mailing”. Webster’s New Collegiate Dictionary (1977). A later edition defines postmark as “a post-office mark stamped on a piece of mail, cancelling the postage stamp and recording the date and place of sending or receiving”. Webster’s New World College Dictionary, 4th Ed., 1125 (2002). Similarly, Black’s Law Dictionary, 5th Ed. (1979) defines postmark as “[A] stamp or mark put on letters or other mailable matter received at the post-office for transmission through the mails,” while a later edition defines postmark as “[a]n official mark put by the post office on an item of mail to cancel the stamp and to indicate the place and date of sending or receipt.” Black’s Law Dictionary, 7th Ed. (1999). Taken literally, two of these definitions would require the Department to use postage stamps to mail its notices of valuation.
To resolve this difficulty, we observe that a majority of state courts have concluded that a postage meter mark meets the statutory requirement for a postmark.
In Colorado, the 3rd Division of the Court of Appeals found that employer’s response to a request for job separation information was timely where the envelope bore a postage meter mark dated the last day to protest the employee’s claim. Gutierrez v. Industrial Claim Appeals Office, 841 P.2d 407 (Co. C.A.3 1992). The relevant statute provided that an employer’s response “must be postmarked or received by the division within twelve calendar days from the said date of mailing.” In analyzing the petitioner’s argument based on a dictionary definition of “postmark” the court observed:
However, under United States Postal Service
regulations, private postage meter marks are official postmarks imprinted under license
from the Postal Service. Privately metered mail is entitled to all the privileges applying
to the various classes of mail, and such mail is not canceled or postmarked by the Postal
Service unless incorrectly dated. See 39 C.F.R. §§ 111.1-111.5 (1991); United
States Postal Service Domestic Mail Manual §§ 144.111, 144.2, 144.471, 144.532;
144.534 (1991); Bowman v. Administrator, 30 Ohio St.3d 87, 507 N.E.2d 342 (1987).
To discourage misuse of private postage meters, such as incorrect dating, the Postal Service conducts random checks of privately metered mail. Domestic Mail Manual § 144.6. See Bowman v. Administrator, supra.
Further, if the date stated by the meter mark differs from the date the item is actually deposited in the mail, the item is postmarked with the corrected date of deposit. Bowman v. Administrator, supra; Domestic Mail Manual §§ 144.471, 144.534; Postal Operations Manual § 423.35.
841 P.2d at 408-409.
The Iowa Supreme Court found a dictionary definition of “postmark” (“an official postal marking on a piece of mail; specifically, a mark showing the name of the post office and the date and sometimes the hour of mailing and often serving as the actual and only cancellation”) included both the meter stamp affixed by the sender and the postmark affixed by a post office employee. Severs v. M.L. Abrahamson, 255 Iowa 979, 124 N.W.2d 150, 152 (1963). The court analyzed the applicable United States Postal Service regulations and observed that “[t]hough the meter stamp is affixed by the sender, the foregoing regulations provide all the necessary safeguards as to the correct date of mailing.” Id. The Court concluded that the use of “postmarked” by the Iowa Legislature included both a postage meter mark and a postmark placed by a postal employee.
In Frandrup v. Pine Bend Warehouse, 531 N.W.2d 886 (Minn.C.A. 1995) the applicable Minnesota statutes defined the date of filing as the “day indicated by the cancellation mark” and the accompanying rule defined it as the “postmark date.” The Court reviewed the applicable United States Postal Service regulations and concluded that the “. . . private postal meter date stamps are proof of timely filing of appeals . . ..” Id. at 890.
In Abrams v. Ohio Pacific Express, 819 S.W.2d 338 (Mo. 1991), the Missouri workers’ compensation statute provided that an appeal would “be deemed filed as of the date endorsed by the United States post office on the envelope . . ..” The Court found that a postal meter mark met the requirement of “endorsed” found in the statute. The Court rejected the argument that control of the postage meter by a private individual results in uncertainty that the postal meter date is accurate:
It has been suggested that by accepting proof of filing based upon the date made by a postage meter under the control of one of the parties, uncertainty as to the actual date of mailing will result because a negligent or deceitful postal employee may not examine the date and ensure that it is correct. That argument assumes that postal meter licensees and postal employees will not comply with the regulations. The argument is contrary to the usual presumption that "[p]ublic officials have rightfully and lawfully discharged their official duties until the contrary appears." Midwest Materials Co. v. Village Dev. Co., 806 S.W.2d 477, 484 (Mo. App.1991), citing Dittmeier v. Missouri Real Estate Comm'n, 316 S.W.2d 1, 5 (Mo. banc 1958). Even if this Court adopts the view that only postmarks made by postal employees are sufficient, that narrow construction would not prevent the backdating of a postmark by a negligent or deceitful postal worker. Here there is no evidence suggesting deceit or neglect occurred, and the presumption noted above is applicable.
Id. at 342.
The New Jersey Tax Court reached the same result in Schiff v. Director, Department of Taxation, 15 N.J.Tax 370 (1995). In this case the taxpayer contended a deficiency notice sent by the Department of Taxation was untimely because the Department used a postage meter machine. The court accepted the affidavit of the United States Postal Service plant manager describing how metered mail is processed and concluded that the notice was sent on the date contained on the postage meter mark.
In Bowman v. Administrator, Ohio Bureau of Employment Services, 30 Ohio St.3d 87, 507 N.E.2d 342 (1987), the Supreme Court of Ohio overruled a line of cases in Ohio excluding the use of private meter marks as evidence of timely filing. After reviewing the postal regulations related to the use of postage meters, the Ohio Supreme Court concluded:
Given notice of these regulations, and in
fairness to appealing parties, the only reasonable presumption is that a private meter
postmark constitutes evidence of the date of deposit of the item in the mail. We conclude,
therefore, that because the administrator has used the general term "postmark"
in Ohio Adm. Code 4146-13-01, private meter postmarks are "postmarks,"
presumptively valid and accurate, for purposes of timely filing of an appeal to the board
under the code.
507 N.E.2d at 344-345.
In West Virginia the court adopted the rationale of Bowman, supra, and concluded that the use of “postmark” in the statute was general and concluded “that a private postage meter stamp is a presumptively valid and accurate postmark for purposes of W.Va.Code, 3-5-7 ” in the absence of a showing of dishonest behavior on the part of the person using the postage meter. Haynes v. Hechler, 182 W.Va. 806, 392 S.E.2d 697, 699 (1990).
All of these authorities reach conclusions that are consistent with the obvious general purpose of the statute, which is to establish the date upon which the Notice of Valuation was mailed to the taxpayer. See Parker Land & Cattle Company, 845 P.2d 1040, 1042-1043. We accordingly follow the majority of courts in concluding that a postage meter stamp is a postmark within the meaning of Wyo. Stat. Ann. §39-14-209(b)(iv). It also follows that the Department’s interpretation of the statute is in accordance with law.
As a final argument, BP relies on the fact that it had previously filed a timely appeal of the Department’s selection of valuation method for 2003-2005. The Board has consistently ruled that the selection of the valuation method is a different Departmental decision than the application of the method to determine fair market value. E.g., Union Pacific Resources Company et al, Docket No. 2000-147 et al, June 9, 2003, 2003 WL 21774603 (Wyo. St. Bd. Eq.), ¶¶104-113. BP has provided no reason for us to modify that ruling. Specifically, even if we were to assume that BP had put the Department and the Board “on notice that BP did not approve of the use of the comparable value method to value its 2003 production,” BP’s posture alone cannot grant the Board subject matter jurisdiction to hear this appeal.
IT IS THEREFORE HEREBY ORDERED that BP American Production Company’s appeal of a Notice of Valuation for production year 2003 is dismissed.
Pursuant to Wyo. Stat. Ann. §16-3-114 and Rule 12, Wyoming Rules of Appellate Procedure, any person aggrieved or adversely affected in fact by this decision may seek judicial review in at the appropriate district court by filing a petition for review within 30 days of the date of this decision.
Dated this _____ day of August, 2004.
STATE BOARD OF EQUALIZATION
Roberta A. Coates, Chairman
Alan B. Minier, Vice-Chairman
Thomas R. Satterfield, Member
Wendy J. Soto, Executive Secretary