BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

FMC WYOMING CORPORATION FROM ) Docket No. 2009-11

A DENIAL OF REFUND REQUEST )

BY THE MINERAL DIVISION OF THE )

DEPARTMENT OF REVENUE )

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

APPEARANCES

Walter F. Eggers, III, and Delissa L. [Hayano] Minnick, of Holland & Hart LLP for FMC Wyoming Corporation (Petitioner or FMC). Ms. Minnick withdrew as counsel for FMC on August 26, 2009. [Notice of Withdrawal of Counsel].

Karl D. Anderson, Senior Assistant Attorney General, Wyoming Attorney General Office, appeared on behalf of the Department of Revenue (Department).

CONTENTIONS AND ISSUES.

FMC contends the Department’s refusal to consider its refund request was in error for the reasons addressed in its Opening and Reply Briefs:

A. FMC’s letter of December 29, 2008, fully explained FMC’s refund request and was a proper request under the refund statute and the Department’s refund rule.

B. The plain language of Wyo. Stat. Ann. § 39-14-309(c)(ii) confirms FMC’s refund request was timely.

1. The Wyoming Supreme Court has recognized the five-year limitations period for refund requests.

2. The First Judicial District Court Order in Dept. of Revenue v. BP America Prod. Co., First Judicial District Court, Docket No. 165-795 (October 17, 2005), is limited to its facts and is distinguishable from this case.

a. The District Court Order is not binding in this appeal.

b. The District Court Order does not recognize the plain language of the refund request statute.

c. The 2009 revision to the refund statute does not apply to this appeal.

3. Only the Legislature has the authority to shorten a statutory deadline.

a. A claim of legislative mistake is not a valid basis for ignoring the statutory deadline.

b. The refund request deadline was not amended by implication.

4. FMC’s refund request is subject to audit.

5. The statutory audit and refund provisions work together to ensure accuracy and finality.

[Petitioner’s Opening Brief pp. 6, 7, 9, 12, 13, 14; Petitioner’s Reply Brief, pp. 3, 4, 5, 7, 8.]

The Department presented the following arguments in support of its refusal to consider the merits of FMC’s refund request:

A. FMC did not file a proper refund request.

1. FMC’s request does not constitute an overpayment.

2. The refund request was not submitted on a form prescribed by the Department.

B. FMC’s request was not filed on a timely basis.

1. FMC’s refund request is inconsistent with several mineral tax statutes.

a. FMC is not entitled to a refund after failing to timely appeal the Department’s audit assessment.

b. FMC’s refund request is inconsistent with Wyo. Stat. Ann. §§ 39-14-309(c)(ii) and 39-14-308(b)(vii).

c. FMC’s refund request is inconsistent with Wyo. Stat. Ann. § 39-14-308(b)(iii).

d. The Wyoming Legislature’s reduction of the audit commencement period and amended return filing period reflects the Legislature’s intent to limit refund requests to three years.

2. A prior Wyoming District Court order supports the Department’s position and is precedential.

3. FMC’s reliance upon Wyodak Resources Development Corporation v. Wyoming Department of Revenue, 2002 WY 181, 60 P.3d 129 (Wyo. 2002) is misplaced.

[Department’s Response Brief, pp. 6, 9, 11, 14, 16, 18, 19, 21, 24, 26.]

The Board, based on a review of the parties’ stipulation and arguments, has identified two primary issues for decision:

A. Whether the December 29, 2008, letter from FMC to the Department requesting a severance tax refund and reduction in ad valorem value for its 2003 production of sodium sesquicarbonate (S-carb) from its Westvaco Mechanical Mine was submitted in proper form?

B. Whether the December 29, 2008, request by FMC for a severance tax refund and reduction in ad valorem value for its 2003 production of S-carb from its Westvaco Mechanical Mine was submitted in a timely manner?

JURISDICTION

The Wyoming State Board of Equalization (Board) shall review final decisions of the Department on application of any interested person adversely affected, including boards of county commissioners. Wyo. Stat. Ann. § 39-11-102.1(c). Taxpayers are specifically authorized to appeal final decisions of the Department. Wyo. Stat. Ann. § 39-14-209(b). The taxpayer’s appeal must be filed with the Board within thirty days of the Department’s final decision. Wyo. Stat. Ann. § 39-14-209(b); Rules, Wyoming State Board of Equalization, Chapter 2, § 5(a). By Notice of Appeal dated January 28, 2009, FMC timely appealed a final decision of the Department. The Board accordingly has jurisdiction to hear this matter.

STATEMENT OF THE CASE

FMC produced S-carb from its Westvaco Mechanical Mine in Sweetwater County, Wyoming in 2003. On December 29, 2008, FMC sent a letter to the Department requesting a severance tax refund of $67,128, and a corresponding reduction in ad valorem value related to its 2003 S-carb production. The Department denied FMC’s request by letter dated January 7, 2009, asserting the request was not on the proper form and was not filed timely. FMC appealed the Department’s decision to the Board by Notice of Appeal filed effective January 28, 2009.

FMC and the Department filed a joint motion on April 20, 2009, requesting the Board decide this matter pursuant to its expedited procedure. [Parties’ Joint Motion to Assign Case to Expedited Docket]. See Rules, Wyoming State Board of Equalization, Chapter 2 § 15. The parties stipulated there were no disputed issues of material fact and specifically waived their respective rights to a contested case hearing. [Parties’ Joint Motion to Assign Case to Expedited Docket]. See Rules, Wyoming State Board of Equalization, Chapter 2 § 15(a). The parties filed a Stipulation of Facts and Legal Issue, (Stipulation), contemporaneously with their joint motion. The Board’s expedited procedure consists of a review of any written evidence and argument submitted by the parties. Rules, Wyoming State Board of Equalization, Chapter 2 § 15(c). The Board granted the parties’ motion to consider this matter pursuant to its expedited procedure by order dated April 24, 2009.

The Board issued a Briefing Order on April 24, 2009. FMC filed an opening brief on June 5, 2009. The Department filed a response brief on July 8, 2009. FMC filed a reply brief on July 23, 2009. FMC requested, on April 30, 2009, an opportunity to present oral argument which the Board granted on May 6, 2009. Mr. Eggers and Mr. Anderson presented oral arguments to Thomas D. Roberts, Board Chairman, and Steven D. Olmstead, Vice Chairman on August 3, 2009. Deborah J. Smith, Board Member, reviewed the Board file, including the Stipulation of Facts and Legal Issue, the parties’ briefs, and the transcript of oral argument, and participated in the decision.

We conclude the refund request by FMC was in proper form absent a Department rule or other written directive requiring a different form for submitting a refund request. We further conclude FMC’s refund request was filed timely, prior to the end of the fifth calendar year following the calendar year which included the month for which overpayment was made as required by the plain language of Wyo. Stat. Ann. § 39-14-309(b)(ii) in effect when the refund claim was filed.

FINDINGS OF FACTS

The parties entered a Stipulation of Facts and Legal Issue which they represented contained all material facts necessary for the Board to decide the issues presented in this appeal. The request for the Board to decide this matter without hearing, and the supporting stipulation, were filed pursuant to Board Rules. Rules, Wyoming State Board of Equalization, Chapter 2 § 15. The following facts were stipulated by the parties:

1. On February 20, 2004, FMC reported its Gross Product Report to the Department for its 2003 production from the Westvaco Mechanical Mine. [Stipulation, p. 1]

2. The Department certified FMC's 2003 production on March 11, 2004. FMC did not appeal the certification to the Wyoming State Board of Equalization. [Stipulation, p. 1].

3. Under audit number 4097, the Department of Audit (DOA) engaged an audit of FMC's 2001-2003 production on September 22, 2004. Based upon the results of that audit, the Department issued an assessment to FMC on August 9, 2005. The assessment notified FMC of its right to appeal the assessment to the Board within thirty (30) days. [Stipulation, pp. 1-2].

4. The Department of Audit did not specifically address the valuation of sodium sesquicarbonate during the audit. The Department of Revenue did not specifically address the valuation of sodium sesquicarbonate in the audit assessment issued on August 9, 2005. [Stipulation, p. 2].

5. FMC did not appeal the Department's audit based assessment, and paid the related principal and interest on August 25, 2005. [Stipulation, p. 2].

6. On December 29, 2008, FMC sent a letter to the Department stating it believed it had overpaid severance tax in the amount of $67,128. The request covered a twelve-month period, January through December, 2003, and addressed taxes paid on production from the Westvaco Mechanical Mine. FMC, in its letter, explained it believed its production of sodium sesquicarbonate was overvalued during production year 2003 because it was not based on third-party soda ash sales values. FMC stated they were permitted to request a severance tax refund pursuant to Wyo. Stat. Ann. § 39-14-309(c)(ii). (FMC's letter was attached to the Stipulation as Exhibit A). [Stipulation, p. 2].

7. FMC also requested the Department issue a Notice of Valuation Change (NOVC) to Sweetwater County based on the request, so FMC could apply for a refund of ad valorem tax overpayments, pursuant to Wyo. Stat. Ann. §§ 39-13-109(c)(ii) and 39-14-309(c)(i). [Stipulation, p. 2].

8. The Department rejected FMC's request and sent a response letter to FMC on January 7, 2009. (The Department's letter was attached to the Stipulation as Exhibit B). [Stipulation, p. 3].

9. The Department response letter noted FMC's "request was not properly submitted using amended severance and ad valorem tax returns." See Exhibit B. [Stipulation, p. 3].

10. The Department also denied the request "because the request was submitted after expiration of the 3-year limitation for amended returns as provided for in WY Title 39-l4-308(b)(iii)." See Exhibit B. [Stipulation, p. 3].

11. The Department further denied the request "because FMC's time to appeal the results of the audit has expired." See Exhibit B. [Stipulation, p. 3].

12. Since the Department considered FMC's request to be improper, it did not examine any source documents nor did it analyze the merits of FMC's refund request, namely, whether FMC's production of sodium sesquicarbonate in production year 2003 was properly reported and valued. [Stipulation, p. 3].

13. FMC filed its Case Notice for Review/Notice of Appeal with the Board on January 28, 2009, contesting the Department's denial of FMC's refund request.

14. Any portion of the Conclusions of Law: Principles of Law or the Conclusions of Law: Application of Principles of Law set forth below which includes a finding of fact, may also be considered a Finding of Fact and, therefore, is incorporated herein by reference.

CONCLUSIONS OF LAW – PRINCIPLES OF LAW

15. The role of this Board is strictly adjudicatory:

It is only by either approving the determination of the Department, or by disapproving the determination and remanding the matter to the Department, that the issues brought before the Board for review can be resolved successfully without invading the statutory prerogatives of the Department.

Amoco Production Company v. Wyoming State Board of Equalization, 12 P.3d 668, 674 (Wyo. 2000). The Board’s duty is to adjudicate the dispute between taxpayers and the Department.

16. The Board is required to “[d]ecide all questions that may arise with reference to the construction of any statute affecting the assessment, levy and collection of taxes, in accordance with the rules, regulations, orders and instructions prescribed by the department.” Wyo. Stat. Ann. § 39-11-102.1(c)(iv).

17. The Board’s rules provide:

[T]he Petitioner shall have the burden of going forward and the ultimate burden of persuasion, which burden shall be met by a preponderance of the evidence. If Petitioner provides sufficient evidence to suggest the Department determination is incorrect, the burden shifts to the Department to defend its action….

Rules, Wyoming State Board of Equalization, Chapter 2 § 20.

18. The crux of the dispute between FMC and the Department can be traced to a 2002 amendment of Wyo. Stat. Ann. § 39-14-308(b). 2002 Wyo. Sess. Laws Ch. 49 § 1. Prior to the 2002 amendment, the time frames for filing an amended return, commencing an audit and requesting a refund were the same, i.e. five years.

Commencing March 1, 1994, the department is authorized to rely on final audit findings, taxpayer amended returns or department review, and to certify mine product valuation amendments to the county assessor of the county in which the property is located, to be entered upon the assessment rolls of the county and taxes computed and collected thereon subject to appeal under W.S. 39-14-309(b)(ii), provided that the audit or review commences or return is filed within five (5) years from the date the production should have been or was reported pursuant to W.S. 39-14- 307(a)(i), whichever is later;

Wyo. Stat. Ann. § 39-14-308(b)(iii)(2001). (Emphasis added).

Audits provided by this article shall commence within five (5) years of the reporting period and taxpayers shall keep accurate books and records of all production subject to taxes imposed by this article and determinations of taxable value as prescribed by W.S. 39-14-303(b) for a period of five (5) years and make them available to department examiners for audit purposes. If the examination discloses evidence of gross negligence by the taxpayer in reporting and paying the tax, the department may examine all pertinent records for any reporting period without regard to the limitations set forth in paragraphs (vii) and (viii) of this subsection;

Wyo. Stat. Ann. § 39-14-308(b)(vii)(2001). (Emphasis added).

If a taxpayer has reason to believe that taxes imposed by this article have been overpaid, a request for refund shall be filed with the department on forms it prescribes prior to the end of the fifth calendar year following the calendar year which included the month for which overpayment was made. Refunds of two thousand dollars ($2,000.00), or less may be applied to subsequent payments for taxes imposed by this article. Requests for refunds exceeding two thousand dollars ($2,000.00) shall be approved in writing by the department prior to the taxpayer receiving credit. All refunds granted are subject to modification or revocation upon audit.

Wyo. Stat. Ann. § 39-14-309(c)(ii)(2001). (Emphasis added).

19. The 2002 amendment decreased the time for filing an amended return from five (5) years to three (3) years, and reduced the time to commence an audit from five (5) years to three (3) years and six (6) months. 2002 Wyo. Sess. Laws Ch. 49 § 1; Wyo. Stat. Ann. § 39-14-308(b)(iii) and (vii) (2003). The amendment did not affect the time for filing a refund request which remained five years. Wyo. Stat. Ann. § 39-14-309(c)(ii) ( 2003).

20. The provisions of Wyo. Stat. Ann. § 39-14-308(b) in effect when FMC filed its refund request in 2008 thus provided:

(b) Audits. The following shall apply:

* * *

(iii) Commencing January 1, 2003, the department is authorized to rely on final audit findings, taxpayer amended returns or department review, and to certify mine product valuation amendments to the county assessor of the county in which the property is located, to be entered upon the assessment rolls of the county and taxes computed and collected thereon subject to appeal under W.S. 39-14-309(b)(ii), provided that the return is filed within three (3) years from the date the production should have been or was reported pursuant to W.S. 39-14-307(a)(i), whichever is later, and that the audit or review commenced within the time period as required by paragraph (vii) of this subsection.....

* * *

(vii) Audits provided by this article shall commence within three (3) years and six (6) months immediately following the reporting date for ad valorem taxes.

Wyo. Stat. Ann. § 39-14-308(b)(iii) and (vii) (2007). (Emphasis added).

21. The provision of Wyo. Stat. Ann. §39-14-309(c) in effect in 2008 when FMC filed its refund request specifically provided in pertinent part:

* * *

(ii) If a taxpayer has reason to believe that taxes imposed by this article have been overpaid, a request for refund shall be filed with the department on forms it prescribes prior to the end of the fifth calendar year following the calendar year which included the month for which overpayment was made. Refunds of two thousand dollars ($2,000.00), or less may be applied to subsequent payments for taxes imposed by this article. Requests for refunds exceeding two thousand dollars ($2,000.00) shall be approved in writing by the department prior to the taxpayer receiving credit. All refunds granted are subject to modification or revocation upon audit.

Wyo. Stat. Ann. § 39-14-309(c)(ii). (2007). (Emphasis added).

22. The Wyoming Legislature amended the refund statute in 2009, reducing the time within which to file a refund claim to three years:

* * *

(ii) If a taxpayer has reason to believe that taxes imposed by this article have been overpaid, a request for refund shall be filed with the department by submitting an amended return within three (3) years from the date the production should have been reported pursuant to W.S. 39-14-307(a)(i). Refunds of two thousand dollars ($2,000.00), or less may be applied to subsequent payments for taxes imposed by this article. Requests for refunds exceeding two thousand dollars ($2,000.00) shall be approved in writing by the department prior to the taxpayer receiving credit. All refunds granted are subject to modification or revocation upon audit;

2009 Wyo. Sess. Laws, Chapter 150 § 1; Wyo. Stat. Ann. § 39-14-309(c) (ii) (2009). (Emphasis added).

23. The 2009 amendments also made specific provision for refund requests for production years 2005 and earlier.

Section 2. All mineral producers subject to the provisions of this act shall file any requests for refunds for production year 2005 no later than June 30, 2009. All refunds for production years prior to 2005 are barred as of the effective date of this act or by operation of law, unless such refunds are submitted within an audit under the terms of this act.

2009 Wyo. Sess. Laws, Chapter. 150 § 2.

24. The 2009 amendments to Wyo. Stat. Ann. § 39-14-309 were “effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.” 2009 Wyo. Sess. Laws, Chapter 150, § 3. The act was approved March 5, 2009.

25. The amendment of a statute by implication is not favored:

Statutory provisions may be amended by implication, and this commonly occurs when an act, purportedly independent of the prior act, substantively alters, modifies, or adds to the older law. 1A Sutherland, Statutory Construction, Sands 4th Ed., s 22.13. Amendments by implication, like repeals by implication (FN5), are not favored (Geraud v. Schrader, supra [531 P.2d 872 (Wyo. 1975)], quoting from 1A Sutherland, supra, at s 22.13), and will not be upheld unless there is a manifested repugnancy or irreconcilable conflict between the two statutes. Rickards v. State, 45 Del. (6 Terry) 573, 77 A.2d 199, 203 (1950); Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194, 196, 165 A.L.R. 967 (1946); Hallahan v. Sawyer, Ky., 390 S.W.2d 664, 665 (1965); Bell v. State, 236 Md. 356, 204 A.2d 54, 60 (1964); and 82 C.J.S. Statutes s 252. All statutes relating to the same subject or having the same general purpose must be read as constituting one law, and, where possible, should be harmoniously construed in order to avoid conflicting and confusing results. In re Adoption of Female Child X, Wyo., 537 P.2d 719, 723 (1975); Woolley v. State Highway Commission, Wyo., 387 P.2d 667, 673 (1963). However, if the conflict cannot be reconciled so that the provisions can stand together, then the later provision will prevail over the prior one, and the prior law is considered amended by implication only to the extent of the conflict. (FN6) Co-ordinated Transport v. Barrett, 412 Ill. 321, 106 N.E.2d 510, 515 (1952), aff'd 344 U.S. 583, 73 S.Ct. 468, 97 L.Ed. 567, reh. den. 345 U.S. 931, 73 S.Ct. 778, 97 L.Ed. 1360; Jumper v. Moore, 110 Me. 159, 85 A. 485, 486 (1912); State v. Fowler, 207 Or. 182, 295 P.2d 167, 173 (1956).

Johnson v. Safeway Stores, Inc., 568 P.2d 908, 912-913 (Wyo. 1977) (Footnotes omitted).

[O]ur longstanding rule is that repeals by implication are not favored and will not be indulged if there is any other reasonable construction. One asserting implied repeal bears the burden of demonstrating beyond question that the legislature intended that its later legislative action evinced an unequivocal purpose of affecting a repeal. Furthermore, it must be shown that the later statute is so repugnant to the earlier one that the two cannot logically stand together, or that the whole subject of the earlier statute is covered by the later one having the same object, clearly intending to prescribe the only rules applicable to the subject.

Shumway v. Worthey, 2001 WY 130, ¶ 15, 37 P.3d 361, ¶ 15 (Wyo. 2001).

It must be shown that the later statute is so repugnant to the earlier one that the two cannot logically stand together, or that the whole subject of the earlier statute is covered by the later one having the same object, clearly intending to prescribe the only rules applicable to the subject.

Emulsified Asphalt, Inc. of Wyoming v. Transportation Com'n of Wyoming, 970 P.2d 858, 863 (Wyo.1998). See also: Thunderbasin Land, Livestock & Investment Co. v. County of Laramie, Wyoming, 5 P.3d 774, 781 (Wyo. 2000); Longacre v. State, 448 P.2d 832, 834 (Wyo.1968); Nehring v. Russell, 582 P.2d 67, 73 (Wyo.1978); Town of Pine Bluffs v. State Bd. Of Equalization, 79 Wyo. 262, 283-84, 333 P.2d 700, 709 (1958).

26. The Board applies the same rules as the Wyoming Supreme Court when asked to interpret a statute:

The paramount consideration is to determine the legislature's intent, which must be ascertained initially and primarily from the words used in the statute. State ex rel. State Department of Revenue v. Union Pac. R.R. Co., 2003 WY 54, ¶ 12, 67 P.3d 1176, 1182 (Wyo.2003). We look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Id. A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. Petroleum Inc. v. State Bd. of Equalization, 983 P.2d 1237, 1240 (Wyo.1999).

RME Petroleum Co. v. Wyoming Dept. of Revenue, 2007 WY 16, ¶ 25, 150 P.3d 673, 683 (Wyo. 2007).

27. “As we have often stated, our rules of statutory construction focus on discerning the legislature’s intent. In doing so, we begin by making an ‘inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection.’ Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia. State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994).” Chevron U.S.A., Inc. v. Department of Revenue, 2007 WY 79, ¶ 15, 158 P.3d. 131, 136 (Wyo. 2007).

28. The Wyoming Supreme Court has summarized a number of useful precepts concerning statutory interpretation:

Statutes must be construed so that no portion is rendered meaningless. (citation omitted) Interpretation should not produce an absurd result. (citation omitted) We are guided by the full text of the statute, paying attention to its internal structure and the functional relation between the parts and the whole. (citations omitted) Each word of a statute is to be afforded meaning, with none to be rendered superfluous. (citation omitted) Further, the meaning afforded to a word should be that word’s standard popular meaning unless another meaning is clearly intended. (citation omitted) If the meaning of a word is unclear, it should be afforded the meaning that best accomplishes the statute’s purpose. (citation omitted) We presume that the legislature acts intentionally when it uses particular language in one statute, but not in another. (citations omitted) If two sections of legislation appear to conflict, they should be given a reading that gives them both effect. (citation omitted).

Rodriguez v. Casey, 2002 WY 111, ¶ 10, 50 P.3d 323, 326-327 (Wyo. 2002); quoted in Hede v. Gilstrap, 2005 WY 24, ¶ 6, 107 P.3d 158, 163 (Wyo. 2005).

29. Where a statute is clear and unambiguous, the authority of a legislature should not be usurped by judicial review:

“Where the language of a statute is plain, unambiguous, and conveys a clear and definite meaning, there is no occasion for resorting to rules of statutory interpretation; and the court has no right to look for or impose another meaning.” Druley v. Houdesheldt, 75 Wyo. 155, 160-61, 294 P.2d 351, 352 (Wyo.1956). We are not at liberty to usurp the authority of the legislature and rewrite a statute or impose any other meaning on a statute beyond its unambiguous terms.

Jones ex rel. Jones v. State, Dept. of Health, 18 P.3d 1189, 1194 (Wyo. 2001). See also, State ex rel. Albany County Weed and Pest. v. Board of County Com'rs of Albany County, 592 P.2d 1154, 1158 (Wyo. 1979).

30. The following general principles apply with regard to disputes with respect to tax statutes:

‘Tax statutes are to be construed in favor of the taxpayer and are not to be extended absent clear intent of the legislature.’ Chevron U.S.A., Inc., 918 P.2d at 985.

In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen.

Amoco Production Co. v. Dept. of Revenue, 2004 WY 89, ¶ 18, 94 P.3d 430, 438 (Wyo. 2004).

31. The Wyoming Supreme Court has discussed the weight to be given a district court decision:

Plaintiff discusses at some length a Wyoming district court ruling of some years past wherein it was held that the lien for sales tax took precedence over a purchase money, chattel mortgage. Several facts which evidently had a bearing in that case were dissimilar to the one at bar, but in any event the judgments of district courts are not precedents ^FN2 and are valuable only to the extent that any sound view is worthy of consideration. [^FN2 In re Estate of Seaman, 166 Ohio St. 51, 139 N.E.2d 17; City of Sedalia to Use of Sedalia Nat. Bank v. Donohue, 190 Mo. 407, 89 S.W. 386, 4 Ann.Cas. 89. See 14 Am.Jur. Courts § 84 (1939); 21 C.J.S. Courts § 201 (1940).]

State Bd. of Equalization v. Courtesy Motors, Inc., 362 P.2d 134, 135 (Wyo. 1961).

32. The Wyoming Administrative Procedure Act defines “rule” in pertinent part:

(ix) “Rule” means each agency statement of general applicability that implements, interprets and prescribes law, policy or ordinances of cities and towns or describes the organization, procedures, or practice requirements of any agency. The term includes the amendment for repeal of a prior rule, but does not include:

(i) Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public;

Wyo. Stat. Ann. § 16-3-101(ix).

33. Rules properly promulgated by an agency pursuant to the Wyoming Administrative Procedure Act have the force and effect of law. Wyoming Dept. of Revenue v. Union Pacific R. R. Co., 2003 WY 54, ¶ 18, 67 P.3d 1176, 1184 (Wyo. 2003); State ex rel. Dept. of Revenue v. Buggy Bath Unlimited, Inc., 2001 WY 27 ¶ 19, 18 P.3d 1182, 1188 (Wyo. 2001); Painter v. Abels, 998 P.2d 931, 939 (Wyo. 2000); Antelope Valley Improvement v. State Board of Equalization, 992 P.2d 563, 566 (Wyo. 1999).

34. An agency’s guidelines, interpretations, or statements of procedure, not formally adopted through the rule making process, do not have the force and effect of law. Matter of GP, 679 P.2d 976, 997 (Wyo. 1984) (Agency manual not legally binding on agency).

35. “Unlike substantive regulations, interpretative regulations do not have the force of law; they represent only the agency’s view of what the law means and do not of themselves affect anyone’s legal rights and obligations.” Bernard Schwartz, Administrative Law § 4.7, pp. 165-166 (2nd ed. Little, Brown, 1984).

36. Where an agency’s determination is made by a means other than the adoption of a rule, statutory and constitutional rights to protest and contest must be afforded the taxpayer. Pathfinder Mines v. State Board of Equalization, 766 P.2d 531, 535 (Wyo. 1988).

37. The failure to adopt rules, may in certain circumstances, render an agency’s actions void. See Yeik v. Department of Revenue and Taxation, 595 P.2d 965, 969 (Wyo. 1979) (Failure by state tax commission to adopt procedural rules governing review of agency decision rendered underlying statute inoperative; taxpayer was allowed to proceed directly to court for review of agency action); Monahan v. Board of Trustees, 486 P.2d 235 (Wyo. 1971) (Failure of school board to adopt procedural rules required its actions to be set aside).

CONCLUSIONS OF LAW: APPLICATION OF PRINCIPLES OF LAW

38. The facts stipulated by the parties were sufficient for the determination of the issues presented by this appeal. Facts, ¶¶ 1-12.

39. FMC sent a letter dated December 28, 2008, to the Department requesting a refund of severance taxes and a reduction of ad valorem value related to its 2003 production of S-carb from a trona mine in Sweetwater County, Wyoming. A summary of the amount claimed was attached to the letter. Facts, ¶¶ 6, 7 [Attachment A]. The Department rejected the refund request by letter dated January 7, 2009, stating: 1) FMC did not use the proper form to present its refund request; and 2) FMC’s refund request was not timely based on the Department’s interpretation of the applicable Wyoming statutes. Facts, ¶¶ 9, 10, 11 [Attachment B].

40. FMC appealed the Department’s January 7, 2009, final decision to the Board by Case Notice for Review/Notice of Appeal dated and filed January 28, 2009. Facts, ¶ 13. FMC’s appeal was filed with the Board within thirty days of the Department’s final decision. Facts, ¶¶ 8, 13. The Board thus has jurisdiction to hear and decide the issues presented in this appeal. Wyo. Stat. Ann. § 39-14-209(b); Rules, Wyoming State Board of Equalization, Chapter 2 § 5(a).

41. The denial by the Department of the request by FMC specifically stated: “The Department rejects FMC’s request for a severance and ad valorem tax refund because the request was not properly submitted using amended severance and ad valorem tax returns.” Facts, ¶¶ 9, 10, 11.

42. FMC contends it was free to submit a claim by letter in the absence of a formal Department rule, form, or instruction requiring a taxpayer to file amended returns. [Petitioner’s Opening Brief, pp. 6-7]. The Department contends FMC’s failure to submit amended returns was sufficient to warrant the rejection of the refund claim without review of its merits. [Department’s Response Brief, pp. 9-11].

43. The Wyoming statute in effect in December, 2008, provided requests for refunds be filed with the Department “on forms it prescribes.” Wyo. Stat. Ann. § 39-14-309(c)(ii)(2007). Conclusions, ¶ 21.

44. The parties agree, and our independent review of the Department Rules confirms, the Department did not have any rules in place when FMC filed its request in 2008 which specified the form to be used for refund of severance taxes or for ad valorem value reduction. [Petitioner’s Opening Brief, p. 5; Department’s Response Brief, p. 10]. The Department Rules, Chapter 6, § 15(a), merely repeat the language of Wyo. Stat. Ann. § 39-14-309(c)(ii). The parties also agree the Department has not generated any form specific to refund requests. [Petitioner’s Opening Brief, p. 5; Department’s Response Brief, pp. 10-11].

45. One clear purpose of administrative rules is to provide persons with notice of the method to be used in exercising the rights established by the legislature. Rules setting out the procedures are generally required. When properly promulgated, agency rules have the force and effect of law. Conclusions, ¶ 33. In contrast, an agency’s guidelines, interpretations, or statements of procedure, if not formally adopted through the rule making process, are not binding. Instructions as well, if not promulgated as a rule, are also not binding. Conclusions, ¶¶ 32, 34, 35, 37.

46. Absent a rule establishing amended returns or another “prescribed” form was required to be used by a taxpayer seeking a refund, FMC was allowed to present its refund request pursuant to Wyo. Stat. Ann. § 39-14-309(c)(ii)(2007) in letter form.

47. The Department contends the use of an amended return was required based on an assertion the information from such a return was needed for input into the mineral valuation computer system in the event the refund request was granted. [Department’s Response Brief, pp. 10-11]. The Department failed, however, to identify what information, if any, was required beyond what FMC provided as part of its refund request. [Stipulation].

48. The Department denial of the FMC refund request simply because the request was in the form of a letter with an attached spreadsheet was inappropriate.

49. The Department also rejected the refund claim by FMC “... because the request was submitted after expiration of the three year limitation for amended returns as provided for in WY Title 39-14-308(b)(ii).” Facts, ¶ 10; [Stipulation, Exhibit B].

50. When FMC filed its request with the Department, the time frame for filing a refund request was five years, Conclusions, ¶ 21; the time frame for filing an amended return was three years, Conclusions, ¶ 20; and the time frame for commencement of an audit was three years and six months, Conclusions, ¶ 20. FMC argues the right to request a refund is separate and distinct from the right to file an amended return, and therefore, its refund request was timely. [Petitioner’s Opening Brief, pp.7-11, Petitioner’s Reply Brief, pp. 3-5]. The Department argues the time limit for filing a refund request must coincide with the time limit for filing an amended return. [Department’s Response Brief, pp. 11-26, ]. This divergence of opinion requires consideration of: 1) The Wyoming Supreme Court decision in Wyodak v. Department of Revenue, 60 P.3d 129, 2002 WY 181 (Wyo. 2002) (Wyodak); 2) The effect of the several mineral tax statutes touching on mineral valuation; and, 3) two decisions involving BP America, one by a Wyoming district court and one by the Board.

51. FMC asserts the Wyoming Supreme Court decision in Wyodak supports its argument a refund request is a right separate and distinct from the right to file an amended return. [Petitioner’s Opening Brief, pp. 8–12].

52. In the Wyodak decision, the Wyoming Supreme Court considered the audit appeal and refund request statutes in the context of the proper valuation of Wyodak’s coal production. The case involved an appeal of this Board’s decision affirming the rejection by the Department of Wyodak’s refund request for overpayment of severance tax for 1992-1995 coal production.

53. The 1992 coal production by Wyodak had been audited, and Wyodak had appealed the resulting audit assessment to the Board and the Wyoming Supreme Court. Because of that prior litigation, the Wyoming Supreme Court decided Wyodak’s refund request was barred by res judicata. The Court explained “[r]es judicata bars the relitigation of previously litigated claims or causes of action.” Wyodak, 60 P.3d at 135, 2002 WY 181 at ¶ 11 (citation omitted). As the 1992 valuation had been litigated before the Board and appealed to the Wyoming Supreme Court, Wyodak was barred from reopening the previously litigated valuation through a refund request. Wyodak, 60 P.3d at 135-136, 2002 WY 181 at ¶ 13.

54. For production years 1993, 1994, 1995, the Court found Wyodak’s refund request was proper. Wyodak had not previously litigated the valuation for that time period. Thus, res judicata did not bar Wyodak from proceeding under the refund request provision. In its analysis, the Court reaffirmed that audit appeals and refund requests are separate statutory remedies. Both remedies are available to taxpayers. Wyodak, 60 P.3d at138, 2002 WY 181 at ¶20 (citing Amax Coal West, Inc. v. Wyoming State Bd. of Equalization, 896 P.2d 1329 (Wyo. 1995); Amoco Production Co. v. Bd. of County Comm’rs of Carbon County, 876 P.2d 989 (Wyo. 1994); Atlantic Richfield Co. v. Bd of County Comm’rs of County of Sweetwater, 569 P.2d 1267 (Wyo. 1977)). The Court concluded a five-year statute of limitations period applied to severance tax refund requests, and a taxpayer was not required to file an audit appeal as a condition precedent to filing a valid refund request. Wyodak, 60 P.3d at 138-141, 2002 WY 181 at ¶¶ 20-28. In so finding, the Court stated:

As we interpret statutes, we must read them in context and harmonize them in a sensible fashion. When we do so in this situation, we can reach only one conclusion: The right to request a refund of severance taxes existed for five years after the calendar year in which the overpayment of tax was made . . . .

Wyodak, 60 P.3d at 140-141 , 2002 WY 181 at ¶ 28 (Emphasis added; citation omitted).

55. Though Wyodak involved the audit appeal and refund request provisions for coal, those provisions are identical to those set out for trona and other minerals. The Wyodak court found that where the valuation had not been previously litigated, the refund request was not barred by res judicata. Wyodak had the right to request a refund for five years after the calendar year in which the overpayment of tax was made, and the Department was required to consider the merits of the request even though Wyodak had not appealed the Department Notice of Valuation within the thirty-day time limit for appealing a final determination to the Board.

56. The Wyoming Supreme Court has concluded the “legislature is well acquainted with the need to draw its tax statutes carefully and with precision.” RME Petroleum Co. v. Department of Revenue, 2007 WY 16, ¶ 48, 150 P.3d 673, 690 (Wyo. 2007). When a statute is sufficiently clear and unambiguous, the plain and ordinary meaning of the words must be given effect, and there is no need for, and this Board is not at liberty to resort to rules of statutory construction. Conclusions, ¶¶ 26, 27, 28, 29, 30. The language of the refund provision, Wyo. Stat. Ann. § 39-14-309(c)(ii), in effect when FMC filed its refund request, is clear and unambiguous.. It does not require the Board resort to rules of statutory construction to determine the legislature’s intent. Conclusions, ¶ 21, 26, 27, 28, 29, 30. As the Wyoming Supreme Court recognized in Wyodak, the severance tax refund provision is a separate remedy available to a taxpayer exercisable within the time frame established by the legislature. Conclusions, ¶ 54.

57. The Department argues the Wyodak decision is distinguishable. The distinguishing differences, according to the Department, include the different timing of the refund request, the absence of a time limitation for commencement of an audit or the filing of amended returns in Wyodak, and the absence of a decision by the Wyoming Supreme Court on the merits of the refund request. [Department’s Response Brief, pp. 27-29]. While there are factual differences between Wyodak and this appeal, those differences do not affect the substantive conclusion of Wyodak that the refund provision is a separate remedy. Conclusions, ¶ 54.

58. The Department further argues Wyodak is distinguishable because there was no issue as to “whether Wyodak was entitled to seek a refund request supported by untimely amended returns or whether the Department had authority to accept untimely filed amended returns,” and because “the legislature had not amended the coal tax statutes defining the time limitations for commencement of an audit or for filing amended returns.” [Department’s Response Brief, p. 27]. Neither of these differences detracts from the Wyodak holding that a refund request is a separate remedy available to a taxpayer. Conclusions, ¶ 54.

59. The Department’s final argument for distinguishing Wyodak is the fact the Supreme Court was not required to determine whether the refund statute may be used as a substitute for an appeal from an audit assessment. [Department’s Response Brief, pp. 28-29]. This assertion, however, is not entirely correct.

60. In Wyodak, the taxpayer’s refund request for 1992 was rejected by the Department, and that rejection upheld by the Supreme Court. The basis for the Court’s decision was the doctrine of res judicata. Where the taxpayer “had the right to challenge the ... valuation and assessment and exercised that right by appealing the final assessment through the administrative process and, ultimately, to [the Supreme Court]” the doctrine of res judicata bars the taxpayer from making a refund. Wyodak, 2002 WY 181 ¶ 13, 60 P.3d at 135-136 (Emphasis added). Where an issue was not identified during an audit, nor litigated, the taxpayer is not precluded from seeking a refund. Conclusions, ¶ 54. The question of the 2003 value of S-carb was not identified during an audit, nor was it litigated through the administrative appeal process. Facts, ¶¶ 3, 4, 5.

61. If an issue affecting the valuation of a taxpayer’s mineral production has not been identified through audit, and the taxpayer has neither challenged nor had the opportunity to challenge the Department’s position by appeal, the taxpayer retains the statutory right to request a refund. As the Court said in Wyodak:

Despite the numerous revisions and recodifications of the tax code since the first refund provision was adopted in 1876 and this court's decisions indicating the separate and distinct nature of the appeal and refund remedies, the legislature has not chosen to impose an obligation of due diligence on the taxpayer as a condition precedent to the filing of a refund request.

Wyodak v. Department of Revenue, 2002 WY 181 ¶26, 60 P.3d 129, 141 (Wyo. 2002).

62. The Department calls attention to three mineral tax statutes, arguing each statute requires the time frame for filing a refund request be read to coincide with the shorter time frame provided by the amended return and audit statutes. [Department’s Response Brief, pp. 14-24].

63. The first statute relied upon by the Department provides “a person assessed may file written objections to the assessment with the board within thirty days of the final administrative decision.” Wyo. Stat. § 39-14-309(b)(i). [Department’s Response Brief, pp. 16-18]. The Department argues Board of County Commissioners v. Exxon Mobil Corp., 2002 WY 151, 55 P.3d 714 (Wyo. 2002) (Exxon Mobil) mandates the refund request statute be read consistent with a conclusion completion of an audit is the final step in the mineral valuation process. Under such a reading, the expiration of the statutory time to appeal an audit assessment forecloses any further action by a taxpayer regarding the assessment or the production years audited.

64. Our review of that case does not lead to the same conclusion urged by the Department. First, Exxon Mobil dealt with the issue of a county’s right to appeal, not a taxpayer’s right to request a refund. Second, there is no mention in Exxon Mobil of the right of a mineral taxpayer to request a refund. Third, Exxon Mobil only discussed the timing of a county’s appeal of a Department decision in the absence of other statutory authority. “It is only after the time for an audit has expired, or an audit is completed and the DOR has assessed on the basis of the audit that there is nothing more to be accomplished. Only then has the DOR made a final decision that a county may appeal. Appeals before that point are exercises in futility.” Board of County Commissioners v. Exxon Mobil Corp., 2002 WY 151 at ¶ 36, 55 P.3d at 723-724. No mention is made of a county’s potential right to appeal from a refund request that is “... subject to modification or revocation upon audit.” Wyo. Stat. Ann.§ 39-14-309(c)(ii). Conclusions, ¶ 21.

65. The right to appeal set forth in Wyo. Stat. Ann. § 39-14-309(b)(i) is separate from the right to request a refund found in Wyo. Stat. Ann. § 39-14-309(c)(ii). Supra, ¶¶ 21, 63. Neither remedy renders the other statutorily meaningless. There is no ambiguity created by the legislature’s providing for separate remedies which warrants abrogation of either of the two rights given a taxpayer by the legislature, or the rewriting of any statutory time frame. Conclusions, ¶¶ 25, 26, 27, 28, 29, 30.

66. The Department further argues the right of a taxpayer to request a refund is inconsistent with the Department’s right to audit pursuant to Wyo. Stat. Ann. 39-14-308(b)(vii). Conclusions, ¶¶ 19, 20. [Department’s Response Brief, pp. 18-19, 21-24]. Such an assertion is, however, undercut by the last sentence of Wyo. Stat. Ann. § 39-14-309(c)(ii) which stated at the time of the refund request by FMC: “All refunds granted are subject to modification or revocation upon audit.” Conclusions, ¶ 21. The same language with regard to audits appears in the refund statute after its revision in 2009. Conclusions, ¶ 22.

67. The more important issue with regard to audit of a refund is one of timing. The refund statute applicable to FMC in this matter allowed a taxpayer five years in which to request a refund, yet the Department, by statute since 2002, must commence an audit within 3 years and 6 months following the reporting date for ad valorem taxes. Conclusions, ¶¶ 19, 20. This conundrum is, however, fortunately limited to this appeal since the Wyoming Legislature, when it amended Wyo. Stat. Ann. § 39-14-309(c), basically barred all refund requests for production years prior to 2005. It also required all refund requests for production year 2005 be filed by June 30, 2009. As a result, all refund requests since June 30, 2009, have been subject to the provisions of Wyo. Stat. Ann. § 39-14-309(c), as amended. Conclusions, ¶¶ 22, 23, 24.

68. The Department has yet to actually make a final determination as to whether FMC is, in fact, entitled to a refund of severance taxes for 2003 S-carb production. Facts, ¶ 12. In light of the fact the Department arguably may be precluded from actually “auditing” the 2003 S-carb production because of the manner in which the relevant statutes have been amended, the Department would be well-advised to request, and FMC would likewise be well advised to provide, as much detailed information as is reasonably necessary for the Department to make an informed final decision on the refund request. The final determination by the Department with regard to the refund request, if FMC disagrees, will, of course, be subject to appeal to this Board. Conclusions, ¶ 16.

69. The Department also seeks to associate the statutory right to request a refund with its right to rely on amended returns. Wyo. Stat. Ann. § 39-14-308(b)(iii). Conclusions, ¶ 20. [Department’s Response Brief, pp. 19-21]. The Department would have the Board read the Department’s right to rely on amended returns as a prohibition on a taxpayer’s right to submit a refund request. As with the Department’s previous arguments, this argument fails because it is based on the incorrect premise the right to file an amended return is the same as the right to seek a refund. Each right is separate, set out in a separate section of the mineral tax statutes, with a separate time frame for its exercise. Conclusions, ¶¶ 20, 21. The availability of the right to file an amended return does not define or limit the right to file a refund request. To read the amended return and refund provisions as requested by the Department would violate various precepts of statutory construction. Treating the two sections as separate remedies is in conformance with the statutory construction rules which require words be given their ordinary and obvious meaning, and be read together to insure all parts of a statute are given effect. Conclusions, ¶¶ 25, 26, 27, 28, 29, 30.

70. The arguments proffered by the Department essentially ask the Board to either abrogate, or amend by implication, the statutory time frame for filing a refund request. We decline this tacit request to step into the shoes of the Wyoming Legislature, and rewrite the statutory time limit for filing a refund request. Conclusions, ¶¶ 25, 26, 27, 28, 29, 30.

71. Based on the clear language of Wyo. Stat. Ann. § 39-14-309(c)(ii) in effect prior to the 2009 amendments, and recognition by the Wyoming Supreme Court, in Wyodak, of a refund request as a separate mineral taxpayer remedy, FMC had five years to request a refund of 2003 severance taxes on S-carb production. The refund request by FMC was timely under statutory deadline in effect when the request was made. Facts, ¶ 6; Conclusions, ¶ 21.

72. The Department, in support of its denial of the FMC refund request, identifies a Wyoming District court decision, as well as a Board decision, both of which arose out of a failure by BP America to timely appeal a Department final audit assessment. Dept. of Revenue v. BP America Prod. Co., Wyoming First Judicial District Court, Docket. 165 No. 795 [2005]. [Department’s Response Brief, Attachment 1]; BP America Production Company, Docket No. 2005-05, January 18, 2006, 2006 WL 189773 (Wyo. St. Bd. Eq.).

73. In Dept. of Revenue v. BP America Prod. Co., the district court granted a motion for summary judgment filed by the Department in a declaratory judgment action. The court concluded the reduction by the Wyoming Legislature in the time frames for filing amended returns and for commencing audits amended by implication the statutory five-year period for requesting a refund. Conclusions ¶¶ 19, 20,21. [ Department’s Response Brief, Attachment 1, ¶ 15]. The Department argues the Board should give precedential weight to the district court decision. [Department’s Response Brief, pp. 24-25].

74. In Dept. of Revenue v. BP America Prod. Co., the DOA audited BP’s oil and gas production, and the Department issued a final audit assessment. BP did not appeal the audit determination within the thirty-day deadline. It ultimately filed an appeal almost five months after the final audit determination. [Department’s Response Brief, Attachment 1, ¶ 4].

75. BP, contemporaneous with the filing of an audit appeal, also filed a refund request which challenged the audit assessment. The reasons identified as grounds for the refund request were the same as those identified in its late-filed audit appeal. The district court found BP had improperly attempted to substitute a refund request for its late-filed appeal of the audit assessment, and upheld the rejection by the Department of BP’s refund request. [Department’s Response Brief, Attachment 1, ¶¶ 13, 18]. In reaching this decision, the court found a refund request pursuant to Wyo. Stat. Ann. § 39-14-209(c)(ii) must be made within the three-year window for filing amended returns or before the completion of an audit, whichever is later. [Department’s Response Brief, Attachment 1, ¶ 15]. In its attempt to harmonize the oil and gas audit appeal, amended return, and refund request provisions, the court substituted a three-year deadline for the five-year deadline in the refund statute.

76. This Board has previously stated that as “an intermediate appellate body,” in its adjudicative capacity, it “must give precedential weight” to a decision of a district court in the same matter, Appeal of Deromedi, Docket. No. 2000-145, May 15, 2001, 2001 WL 770802 (Wyo. St. Bd. Eq.). The Wyoming Supreme Court, however, has recognized “judgements of district courts are not precedent,” particularly when there are significant factual differences between the case being asserted as precedent and the matter at bar. Conclusions, ¶ 31. It is also important to note the statement by the Board concerning the precedential weight to be given a district court decision involved a decision by a district court in the same matter as was before the Board. The Board was considering, “an intermediate appellate body,” an appeal from a county board of equalization. The matter herein is a contested case appeal by FMC from a decision of the Department in which the Board acts as the fact-finder, not as an intermediate level of appellate review. Laramie County Board of Equalization v. Wyoming State Board of Equalization, 915 P.2d 1184, 1188 (Wyo. 1996); Union Pacific Railroad Company v. Wyoming State Board of Equalization, 802 P.2d 856, 859 (Wyo. 1990).

77. The appeal by FMC is factually distinguishable from the district court decision in Dept. of Revenue v. BP America Prod. Co., thus the precedential weight the Board gives the district court decision should be limited. The district court found the taxpayer’s refund request raised the same issues considered in the audit and, as a result, the refund request was an attempted end-run around the thirty-day audit appeal deadline. The refund request by FMC, in contrast, addressed an issue which was not identified or considered in the audit. Facts, ¶ 4.

78. The Department also asserts this Board’s decision in BP America Production Company, Docket No. 2005-05, January 18, 2006, 2006 WL 189773 (Wyo.St.Bd.Eq.) (BP America) precludes FMC’s refund request. [Department’s Response Brief, pp. 6-9]. We do not agree.

79. The factual scenario in BP America, as in the district court litigation, is clearly distinguishable from facts in this appeal. BP, as previously noted, missed the deadline to appeal a Department final determination audit letter, and then attempted to correct its misstep by filing a severance tax refund which challenged the audit findings:

5. The Department, following completion of an audit of the 1999 production at issue by the DOA, issued a Final Determination Letter on August 6, 2004, assessing, based in part on inclusion of production taxes and royalties as direct costs of producing, additional severance tax in the sum of $1,293,083.62; interest through September 5, 2004, in the sum of $766,666; and increasing the ad valorem taxable value of the properties by $22,161,916. [Transcript Vol. I, pp. 29, 131-132; Exhibit 100].

6. An appeal from a final determination by the Department must be filed with the Board within 30-days of the final decision. Wyo. Stat. Ann. § 39-14-209(b)(i), and (iv), and Rules, Wyoming State Board of Equalization, Chapter 2, § 5(e).

7. BP, through its representative, Paul Syring, acknowledges all appeals from a decision of the Department must be filed with the State Board within 30 days. [Transcript Vol. I, p. 68].

8. BP, through Syring, acknowledges it missed the 30-day appeal deadline for the August 6, 2004, Final Determination Letter. [Transcript Vol. I, pp. 30, 75-76, 80, 93; Vol. II, p. 270].

9. Syring explained the Department’s final decision was lost among other papers in his office during the period around Labor Day:

And when I got back to the office after Labor Day, I realized that Painter was sent out earlier, and that I had missed some communications between Miss Ford and myself. So I just – it was my responsibility as far as being on top of those. Nobody went through my mail. We didn’t have a procedure in place for people to go through my mail, so I missed the deadline.

[Transcript Vol. I, p. 76].

10. Syring fully appreciated the fact that BP’s taxes were then due and owing in the amount established by the audit results:

I missed the appeal deadline so I had no choice but to pay, and in that regard when I discovered that, I called counsel and was talking to them about what – you know, we are exposed here as far as no recourse and found that the statute was open as far as refund claims. The first thing we have to do though, is obviously pay something so that you can claim a refund.

[Transcript Vol. I, p. 93]. Through Syring, BP could not and did not question the payment of taxes and interest determined by audit. BP instead turned its attention to a refund strategy.

11. BP voluntarily paid in full, not under protest, not under escrow, the August 6, 2004, audit severance tax assessment on December 8, 2004, and the recalculated interest on December 21, 2004. [Transcript Vol. I, pp. 30, 74-75, 81, 93].

12. BP thereafter, on December 28, 2004, filed with the Department a refund request, including amended returns for the 1999 production at issue. The request stated it was filed pursuant to Wyo. Stat. Ann. § 39-14-209(c)(ii), and Rules, Wyoming Department of Revenue, Chapter 6 § 15(a). The request claimed an overpayment of severance tax and interest as a result of errors in the Department’s August 6, 2004, Final Determination Letter. Two of the alleged errors deal with processing expenses, and two deal with production expenses. [Transcript Vol. I, pp. 31-32, 77-79; Vol. II, pp. 266-268; Exhibit 101].

13. BP, on December 30, 2004, filed a Notice of Appeal with the Board, specifically challenging the Department’s August 6, 2004, Final Determination Letter. The appeal cited as erroneous the same four audit findings as were alleged in the December 28, 2004, refund request. [Transcript Vol. I, pp. 70, 77-79; Vol. II, p. 268; Exhibit 516 - Notice of Appeal, SBOE Docket No. 2004-150].

14. The Department rejected BP’s refund request by letter dated January 10, 2005. [Transcript Vol. I, pp. 32-33; Exhibit 102].

15. BP, on January 25, 2005, filed a Notice of Appeal with the Board challenging the denial of the refund request. This appeal cited as erroneous the same four audit findings from the Department’s August 6, 2004, assessment as were alleged in the December 30, 2004, Notice of Appeal by BP specifically challenging the Department’s August 6, 2004, Final Determination Letter. [Notice of Appeal].

16. The Board, on February 2, 2005, dismissed as untimely the December 30, 2004, Notice of Appeal which challenged the Department’s August 6, 2004 Final Determination Letter. [Transcript Vol. I, p. 75].

BP America Production Company, Docket No. 2005-05, January 18, 2006, 2006 WL 189773 (Wyo.St.Bd.Eq.)

80. The Board decision in BP America does not preclude FMC from seeking a refund. Unlike BP America, there is no evidence FMC utilized its refund request as a substitute for challenging specific audit findings which it failed to timely appeal. Facts, ¶ 4.

81. The Department asserts the only way to reconcile the three statutory provisions at issue, amended returns, audits, and refunds, is for the Board to find the refund statute was amended by implication and shorten to three years when the Legislature amended the other two provisions in 2002. [Department’s Response Brief, pp. 14-30]. The Department made a similar argument in BP America with which we disagreed:

40. The Department argues that there are irreconcilable conflicts between the five-year deadline of Wyo. Stat. Ann. § 39-14-209(c)(ii) and the different deadlines for filing amended returns, Wyo. Stat. Ann. § 39-14-208(b)(iii), and the commencement of audits, Wyo. Stat. Ann. § 39-14-208(b)(vii). [Wyoming Department of Revenue’s Closing Brief, pp. 20-24]. We conclude there is no such conflict in this case. From our review of the statutes read together, the Legislature provided a refund request deadline that could extend beyond the conclusion of audit proceedings, to allow for refunds based upon unforeseen developments arising after the final conclusion of such audit proceedings. This general approach may, on occasion, be subject to the doctrine of res judicata. Wyodak, 2002 WY 181, ¶¶ 11-13, 60 P. 3d at 135-136. While the Department has raised reasonable policy concerns that would support a revision of the five year deadline in Wyo. Stat. Ann. § 39-14-209(c)(ii), that is a matter for the Legislature and not for us.

BP America Production Company, Docket No. 2005-05, January 18, 2006, 2006 WL 189773 (Wyo.St.Bd.Eq.). We have been given no reason in this matter to reach a different conclusion:

82. Our conclusion the refund statute was not amended by implication is supported not only by the general philosophy that legislative action by implication is not favored, but as well by two statutory construction concepts. Conclusions, ¶¶ 25, 26, 27, 28, 29.

83. The Board decision in BP America concluding the refund statute was five years, not three years, was issued on January 18, 2006. The Wyoming Legislature did not address the refund time frame until its 2009 Session. There were thus three intervening legislative sessions, 2006, 2007, 2008, during which no attempt was made to “reconcile” what the Department perceived to be a conflict. The Legislature only took action in the 2009 Session during which this appeal was filed.

84. Legislative inaction following a contemporaneous and practical interpretation is evidence the legislature does not differ with such an interpretation. “Where action upon a statute or practical and contemporaneous interpretation has been called to the legislature’s attention, there is more reason to regard the failure of the legislature to change the interpretation as presumptive evidence of its correctness.” 2B Norman J. Singer, Statutes and Statutory Construction § 49:10, pp. 117-118, fn. 6 (6th ed., 2000 Revision).

85. In addition, although subsequent legislative action is not necessarily conclusive, the 2009 amendment of the refund statute by the Wyoming Legislature established a deadline of June 30, 2009, for refund requests for 2005 production. This deadline was arguably in recognition of the fact the refund statute had previously been five years, and an immediate change to three years in 2009 would mean refund requests for 2005 production would have had a three-year deadline of the end of 2008. Conclusions, ¶¶ 22, 23, 24. This legislative action in 2009 supports a conclusion the 2002 amendment to the amended return and audit provisions did not by implication or otherwise reduce the three-year the time frame for filing refund requests. Moncrief v. Wyoming State Board of Equalization, 856 P.2d 440, 445 (Wyo. 1993); Inexco Oil Co. V. Oil and Gas Conservation Commission, 490 P.2d 1065, 1067 (Wyo. 1971). The Legislature’s subsequent amendment of Wyo. Stat. Ann. 39-14-309(c)(ii), with its establishment of a interim time limit for 2005 production refund requests, supports a conclusion the time limit for filing a refund request was not reduced by the Legislature’s 2002 reduction in the time frames for filing amendments and for commencing audits.

86. FMC filed a timely refund request which the Department should have reviewed on its merits.

87. This decision is limited to a determination FMC is entitled to have its refund request for the production year 2003 considered on its merits. It is not a decision on whether such request should be approved. This matter must, therefore, be remanded to the Department for review of the refund request, and a final decision as to whether it should be allowed.

ORDER

IT IS THEREFORE HEREBY ORDERED the Department of Revenue denial of the request for a refund by FMC Corporation is reversed; and

IT IS FURTHER ORDERED this matter is remanded to the Department for consideration of the refund request on its merits.

DATED this 19th day of April, 2010.

STATE BOARD OF EQUALIZATION

_____________________________________

Thomas D. Roberts, Chairman

_____________________________________

Steven D. Olmstead, Vice-Chairman

_____________________________________

Deborah J. Smith, Board Member

ATTEST:

________________________________

Wendy J. Soto, Executive Secretary