BEFORE THE STATE BOARD OF EQUALIZATION

FOR THE STATE OF WYOMING

IN THE MATTER OF THE APPEAL OF )

CAMPBELL COUNTY ASSESSOR AND THE )

BOARD OF COMMISSIONERS OF CAMPBELL ) Docket No. 96-90

COUNTY FROM A MINERAL TAX DECISION )

BY THE DEPARTMENT OF REVENUE )

FINDINGS OF FACT

APPEARANCES

Jerry Shatzer, Campbell County Assessor and the Board of Commissioners of Campbell County, by Carol Seeger, at the time of filing briefs and James Schermetzler at the time of the hearing, Deputy Campbell County Attorneys.

Mike Basom at the time for filing briefs and Karl D. Anderson at the time of the hearing, Assistant Attorney Generals for Respondent, Department of Revenue.

Richard E. Day and Margo Harlan Sabec, attorneys for Intervenor Devon Energy Production Company.

The appeal arises from Notice of Appeal dated July 19, 1996, appealing the certification of taxable value from the production of minerals occurring in the North Buck Draw Unit from the Department of Revenue (DOR) dated June 20, 1996. This matter was considered by the State Board of Equalization (SBOE) consisting of Roberta A. Coates and Ron Arnold. Edmund J. Schmidt, Board Chairman, recused himself from consideration and participation in this matter. The SBOE considered briefs, pleadings and exhibits pursuant to a Briefing Order dated August 18, 1997. The Board having found that material facts were in dispute and desiring to receive evidence and oral arguments converted the matter to a hearing pursuant to an Order dated August 11, 1999.

Taxpayer had injected outside substance gas (OSG) in the formation to enhance oil recovery. After "blowdown" the Taxpayer produced gas that may include reservoir gas and the OSG. The DOR and the Taxpayer argued that tax on produced gas should not be paid until the same volume of gas as had been injected as OSG, adjusted for heating value, was produced.

Upon application of any person adversely affected, the SBOE is mandated to review final decisions of DOR on excise taxes and "[h]old hearings after due notice in the manner and form provided in the Wyoming Administrative Procedure Act (Wyo. Stat 16-3-101 through 16-3-115) and its own rules and regulations of practice and procedures." Wyo. Stat 39-1-304(a)(ix).

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 39-1-304(a)(iv). The rules of practice and procedure for appeals before the Board involving tax matters contemplate appeals from final administrative decisions of DOR. Rules, Wyoming State Board of Equalization, Chapter 2, Section 3. The rules require appeals to be filed with the Board within thirty (30) days of any administrative decision. Rules, Wyoming State Board of Equalization, Chapter 2, 5.

Devon Energy Production Company is the successor in interest to Kerr-McGee Corporation (jointly referred to as Taxpayer). Kerr-McGee developed an oil field by purchasing gas from another field and injecting that gas to create pressure to produce oil. The injected gas had been severed prior to the reinjection and all taxes had been paid prior to the reinjection. The DOR determined the reinjected gas should not be taxed when it is produced from the North Buck Draw Unit, NBDU. In an attempt to forgo taxes for the outside substance gas (OSG) the DOR allowed the Taxpayer to not pay taxes on the same volume of injected OSG, adjusted for heating value. When DOR certified no value for the gas first produced the Campbell County Assessor and the Campbell County Commissioners (jointly referred to as Petitioners) appealed.

The issue originally argued by Petitioners was whether produced gas, even if it was injected gas, is exempt from taxation.

The DOR and subsequently the Taxpayer countered this argument by asserting that Wyo. Stat. 39-14-201(a)(xiii), enacted after the appeal was filed, defines natural gas to exclude injected gas and therefore the injected gas is not taxable.

At the time of the hearing, the Petitioners argued that the injected gas should be valued for tax purposes at the price received for the produced gas, less the price for the injected gas.

The DOR and the Taxpayer attempted to demonstrate the Petitioners' method of valuing injected gas was difficult to administer and if the price of gas fell from the time of injection to the time of production, a volume of produced gas would not be taxed.

FINDINGS OF FACT

1. The SBOE received a Notice of Appeal by the Petitioners from a Determination and Certification of Department of Revenue dated July 18, 1996.

2. North Buck Draw Unit (NBDU) oil and gas field is located in Campbell County, Wyoming. The Unit is a high-pressure miscible gas injection project. In a miscible gas project a substance, in this case hydrocarbon gas, is injected into the reservoir to maintain minimum miscibility pressure so that the crude oil does not flash to a gas phase. The miscibility improves the recovery of the crude oil from the reservoir by maintaining pressure. [Transcript p. 224]. The projections are that the injection process actually produced 14 million barrels of oil more than if the reservoir had simply been depleted. [Transcript p.128, 129]. It is estimated that 65% of the oil in the reservoir will be produced and it is estimated by Taxpayers expert petroleum engineer, George J. Fulco, that only 25% would have been produced if the injection method had not been used. [Transcript p.147, 148]. The information presented to the Wyoming Oil and Gas Commission estimated that if enhanced recovery did not occur only $92 million would be produced and with enhanced recovery miscible gas injection project the value of the products increased to $271 million. [Transcript p. 219].

3. The first miscible flood project in the State similar to the NBDU project occurred in the Powell Pressure Maintenance Unit in approximately 1985. [Transcript p. 259].

4. The reserves in the NBDU were estimated by the Wyoming Oil and Gas Commission to be 36 million barrels of oil and 7.6 bcf of gas. [Transcript p. 216].

5. The gas injected in the North Buck Draw Unit was produced from another field and is referred to as outside substance gas, (OSG). The gas was purchased from an interstate pipeline company and the Taxpayer does not know where the gas was produced or the wellhead price or value of the OSG at the time of production. [Transcript p.137, 231]. The former Director of the Wyoming Oil and Gas Commission, Donald Basko, testified that he believed the OSG came from the Hilight Plant and the Kitty Plant which are both located in Campbell County, Wyoming. [Transcript p. 243].

6. The OSG gas was probably a hydrocarbon that was naturally occurring beneath the earth's surface when it was produced. [Transcript p. 272]. The OSG does not naturally occur in the NBDU.

7. In March, 1995, it was determined that the injection of outside gas in the reservoir was no longer necessary to maintain pressure because the reinjection of the field gas and water would result in enough pressure to maintain the unit. Therefore, the Taxpayer started selling the gas from the reservoir. This was the same process used on the Powell Pressure Maintenance Unit. [Transcript p.130, 131]. The method of not taxing the first gas produced is one of the accepted practices of the Council of Petroleum Accounting Society, COPAS. [Transcript p. 368]. It is the same method that this SBOE mandated in the Powell Pressure Maintenance case, Kerr-McGee Corporation, Docket 94-29, (December, 1994).

8. From September 1988 through February 1995, when OSG purchases ceased, a total of 20,598,980 MMBTU of OSG (18.1 BCF) was purchased off lease and injected into the NBDU. The average price paid for the OSG during this period of time was $1.89/MMBTU, for a total of $39,018,229.42, and of that amount $5,010,526.64 was the cost of transportation. [Stipulation, filed March 31, 2000, paragraph 6, Transcript p. 70, 137].

9. In 1995 the operator started injecting water into the unit and selling gas and from March 1995, to August 1999, 5,330,089 MMBTU (4.1 BCF) of gas has been produced and sold from NBDU. "Blowdown" occurred in August 1999 to December 1999, and an additional 5,442,004 MMBTU's (4,490,742 MCF) of gas was produced. As of December 31, 1999, 7,378,283 MMBTU of gas was sold from NBDU and no severance or ad valorem tax was collected. [Stipulation, filed March 31, 2000].

10. By Order dated March 18, 1988, the Wyoming Oil and Gas Conservation Commission (WOGCC) approved the Unit Agreement and the Unit Operating Agreement for the development and operation of the NBDU and certified the proposed operation as a qualified tertiary recovery project exempt from Wyoming excise tax under Wyo. Stat. 39-6-302(j). Kerr-McGee was a working interest owner and the Unit Operator at the time of the order. Subsequently, Devon acquired all Kerr-McGee's interest in the NBDU and is presently the Operator of the Unit. [Transcript p. 135].

11. The sales value, market value and taxable value of the OSG is not the same as the market value, sales value and taxable value of the gas being produced and sold from the unit. [Transcript, p. 67].

12. The gas injected was different from the gas produced because the heating value or Btu of the produced gas was higher. It is impossible to distinguish between what is injected gas and the produced reservoir gas. [Transcript p.154, 155]. The produced gas was probably composed of OSG and reservoir liquids or reservoir gas. [Transcript p. 248, 251, 252]. The injected gas comprises approximately 92 percent of the produced gas. [Transcript p. 250].

13. The parties stipulated that the ad valorem taxes and severance taxes had been paid on the OSG prior to its injection into the North Buck Draw Unit. [Stipulation paragraph 10, Transcript p.278].

14. The parties stipulated the average Btu content of the OSG is 1.14. [Stipulation para. 18]. Taxpayer accounted for the value of the OSG in its books to be $1.89 per MMBTU. [Transcript p.67, Petitioners Exhibit 128]. Included in the cost to purchase the gas for injection were transportation charges that ranged from 20 cents to 28 cents per MMBTU. [Transcript p.69].

15. The average Btu content of the gas sold from the NBDU during the period of March 1995, through November 1999, is 1.25 [Transcript p. 66].

16. On June 2, 1995, Kerr-McGee Corporation requested the DOR exempt from severance and ad valorem tax 18.1 BCF (billion cubic feet) of outside substance gas that was produced from an outside unit and reinjected into the North Buck Draw Unit to stimulate oil production. The request was to exempt from tax the same volume of gas, adjusted for heating value, when that volume was produced from the Unit. [Transcript p. 140-141, 296, DOR Exhibit 500 and 502]. This method of accounting for the OSG gas is generally accepted in the industry. [Transcript p. 145].

17. The heating value of the injected gas was 20.6 million MMBTU. Btu is the heating measure of natural gas and determines the value of the gas to the consumer. It is estimated, if the same amount of Btu is produced and sold from the unit as was injected into the unit, and computing the heating value change of the produced gas from the injected gas only 16.7 BCF would be exempt instead of 18.1 BCF. [Transcript p. 47,138].

18. Gas is primarily valued by its heating value or Btu content. [Transcript p. 139, 233, 234]. Market factors other than Btu do influence the price paid for the gas. [Transcript p. 263].

19. On March 11, 1996, DOR issued a revenue ruling agreeing to the following:

1. From the commencement of the North Buck Draw Unit "Modified Plan of Development" in March of 1995, all gas will be deemed as severance and ad valorem tax free until such time as the entire 18.1 BCF (adjusted for heating value) inventory of outside substance gas is produced, at which time the owners will resume payment of severance and ad valorem taxes on all gas produced from the unit. At all times taxes will be paid on the natural gas liquids resulting from processing the gas.

2. The Department requires that Kerr-McGee, as Operator of North Buck Draw Unit, provide the mineral tax division with a report detailing the amount of "outside substance gas" purchased, from whom it was purchased, the amount that has been produced to date, when "blow down" will occur, and any forecast of approximately when the 18.1 BCF of gas will ultimately be recovered. We also require the operator of the North Buck Draw Unit to provide the mineral tax division with an annual report, no later than December 31^st of each year, setting forth the cumulative total of "outside substance gas".

[Petitioners' Exhibit 108, DOR Exhibit 502 and Transcript p.141-142, 297].

20. Taxpayer agreed to pay taxes on the natural gas liquids resulting from processing the gas. [DOR Exhibit 502 and Transcript 142].

21. The royalty interest owners agreed to the accounting method used by the DOR and the Wyoming State Land Office agreed to the accounting method used by the DOR in calculating royalties. [Transcript, p. 83, 84]. The accounting method used by DOR is common practice in the industry based on the Wyoming Oil and Gas Commission treatment on three wells in Wyoming, the Colorado Oil and Gas Commission treatment of one well in Colorado, and the California Oil and Gas Commission treatment of two wells. [Transcript, p. 238, 245].

22. Taxpayer purchased the OSG and the Unit Agreement provided that a like amount of the OSG would be royalty free until the total volume equaled the total volume of OSG. The agreement also provided that the working interest owners own the OSG and not the royalty holders. [Transcript p.133, 134].

23. Between 1988 and 1995, 18.1 billion cubic feet of outside substance gas, OSG, was not reported for tax purposes. Beginning in March of 1995, and continuing to November 1999, unit sales of gas from North Buck Draw were not reported for ad valorem tax purposes. [Transcript p. 64].

24. The Department has not adopted any rules concerning the valuation of injected outside source gas. [Transcript p. 372].

25. The Petitioners introduced and their expert witness, Mr. Fetterolf, testified about an exhibit prepared to estimate how much tax dollars may be forgiven if the value of produced gas is not taxed in proportion to the value of injected gas. He also attempted to explain how DOR might calculate the total tax value of the injected gas. [Petitioners Exhibit 128]. The conclusion of Petitioners' analysis is that utilizing all of the expert's assumptions and using the average price for gas in Campbell County, $20 million dollars of value is escaping taxation. The total tax value shown on the exhibit did not allow a deduction for allowable deductions such as exempt royalties or processing costs. Also the value assigned to the purchased gas is an estimate because the value of the gas at the well-head is not available. The exhibit estimates of value are based on sales price in November, 2000. The exhibit included no adjustment for the time/value of money.[Petitioners Exhibit 129, Transcript p.81, 85-95, 101-102, 104-105].

26. If the price of gas were to decrease from the time of injection to the time of production, and the gas were taxed on the value basis as proposed by Petitioners then it would be possible for a volume of reservoir gas to be produced tax free. [Transcript p.237].

27. Taxpayer owns a 42% working interest in the NBDU and the other working interest owners are not selling their gas under the same marketing agreement as Taxpayer. Taxpayer does not know what the marketing arrangements are for the other working interest owners so that it would be difficult to value the gas as it is sold. [Transcript p.150].

28. The DOR representative, Mr. Randy Bolles, explained that another difficulty in using the method propounded by the Petitioners is that the value of natural gas is established by an arm's length sale as close to the production as possible. The DOR does know the value of the OSG gas when first sold after production. Subsequent sales of gas after the first sale is not examined by the DOR. Therefore, the subsequent sale to entities such as the Taxpayer is not a true measure of value. [Transcript p.279-282]. It would be difficult to value the OSG because it is a combination of gas, from numerous wells, that may have different taxable values. [Transcript p. 283].

29. Another method to avoid taxing the OSG and taxing only the reservoir gas is to determine the proportion the OSG bears to the entire amount of gas produced from the reservoir. This could be done by comparing the percentage of the Btu content of the OSG gas to the Btu content of the produced gas and then taxing only that percent of the Btu increase of the produced gas. In this case it can be computed that the OSG Btu percent contributed at least 92% of the Btu content of the produced gas and therefore only 8% of the produced gas should be taxed. [Transcript, p. 249 - 255, 257-258]. This method presupposes that the Btu content of the produced gas will remain constant and this may not, in fact, happen. [Transcript, p. 267].

30. Methods for valuing outside substance injected gas are contained in Bulletin No. 7, Revised 1997, by the Council of Petroleum Accountants Societies. The suggested methods are:

• All injected gas is considered to be reproduced before any original formation gas is produced. (The method accepted by DOR ).
• Injected gas is considered to be reproduced proportionately with original formation gas, i.e., a certain percentage of all gas produced is considered to be reproduced injected gas.
• Injected gas is considered to be reproduced only after estimated reserves of original formation gas have been depleted.
• A regulatory and/or mineral lease agreement may stipulate the recovery method.

[Exhibit IV to Petitioners' Response to Questions Posed by Board of Equalization Following Closing Arguments, Exhibit B, Department's Response to Board's Questions].

31. On June 20, 1996, the DOR sent a letter to the Campbell County Assessor detailing the valuation of natural gas for the 1996 tax year which included the valuation of gas for Kerr-McGee, North Buck Draw Unit. The letter contained a Schedule C which showed that an estimated total of $5,156,643 value of gas would not be taxed. [Petitioners' Exhibit 100].

32. The County filed a Notice of Appeal with the SBOE on July 19, 1996, from the DOR letter. [SBOE Record].

33. Subsequent to the Notice of Appeal the DOR again met with the Taxpayer. The County was not represented at the meeting. The Taxpayer and the DOR again agreed that the Taxpayer would account for the volume of the produced gas as it left the unit and the Taxpayer did not have to account for different sales agreements. The agreement reached at this meeting was reduced to writing by a letter from DOR to Taxpayer dated June 18^th, 1999. [Transcript p. 143, 144, 310 DOR Exhibit 509]. The letter refers to exempting gas produced based on a mcf basis but it was meant to be a Btu basis. [Transcript p. 311, 312].

34. Any Conclusion of Law below which includes a Finding of Fact may also be considered a Finding of Fact and is therefore incorporated herein by this reference.

35. Petitioners' letter of appeal was timely filed and the SBOE has jurisdiction to determine this matter.

36. The applicable statutes which are determinative in this matter provide in relevant part:

Wyo. Stat. 39-6-302

(j) Tertiary production resulting from projects certified by the Wyoming oil and gas conservation commission after July 1, 1985, and before March 31, 2001, is exempt from the severance taxes imposed by W.S. 39-14-204(a)(iii) for a period of five(5) years from date of first tertiary production. A taxpayer claiming a tax reduction under this subsection is prohibited from claiming a tax reduction provided by subsection (f) and (g) of this section.

(k) In the case of tertiary production of crude oil resulting from injection of carbon dioxide gas all Wyoming severance taxes paid on the carbon dioxide gas injected shall be deducted from and allowed as a credit against the severance taxes imposed on the oil produced by the injection.

Wyo. Stat. 39-2-208

(f) Natural gas which is vented or flared under the authority of the Wyoming oil and gas conservation commission and natural gas which is reinjected or consumed prior to sale for purpose of maintaining, stimulating, treating, transporting or producing crude oil or natural gas on the same lease or unit from which it was produced has no value and is exempt from taxation.

Wyo. Stat. 39-1-201(a)

The department shall annually value and assess the following property at its fair market value for taxation:

(i) The gross product of all mines and mining claims;

Wyo. Stat. 39-1-303(a)

In addition to the other powers and duties imposed by law, the department shall:

(ii) Insure specialized service for tax enforcements, through establishment and maintenance of uniformity in definition, regulation, return and payment;

(xxxii) Promulgate rules and regulations consistent with the provisions hereof as provided by the Wyoming Administrative Procedure Act, necessary to the enforcement of the provisions of any or all tax and other revenue measures which are administered by the department;

37. The Petitioners have the burden of going forward and the ultimate burden of persuasion. [see, Rules, Wyoming State Board of Equalization, Chapter 2, 19]. Is the Outside Substance Gas Taxable When It Is Produced From the Injected Formation?

38. If the gas were injected from the same field then it would be exempt from taxation. Wyo. Stat. 39-2-208(f) and DOR Rule, Chapter 6, Section 8(e). However, the injected gas is not from the same formation therefore neither Wyo. Stat. 39-2-208(a) nor the other exemptions contained in Wyo. Stat. 39-6-302 are applicable.

39. The definition of natural gas contained in Wyo. Stat. 39-14-201(a)(xv), effective March 6, 1998, states:

"Natural gas" means all gases, both hydrocarbon and nonhydrocarbon, that occur naturally beneath the earth's crust and are produced from an oil or gas well. For the purposes of taxation, the term natural gas includes products separated for sale or distribution during processing of the natural gas stream including, but limited to plant condensate, natural gas liquids and sulfur.

This definition was not in effect at the time the Certification of Value was sent to the County or at the time the Notice of Appeal was filed to this SBOE, July 19, 1996. Moreover, when the Title 39 recodification was completed, the legislature announced there was no intent to change the law, particularly the definitions, however, this definition is new to the tax code. We will not retroactively apply the new definition. Chapman v. Meyers, 899 P.2d 48 (Wyo. 1995).

We also cannot interpret Wyo. Stat. 39-14-201(a)(xv) to exclude the outside substance gas from the definition of "natural gas." At the time of original production, the outside substance gas was a hydrocarbon gas that occurred naturally beneath the earth's crust and was produced from an oil and gas well. The DOR and Taxpayer argue the definition demands that the gas be naturally beneath the earth's crust when it is produced from the North Buck Draw Unit. We cannot insert the words "in the unit" in this definition. The language in the definition is clear and it would violate statutory construction rules to insert another qualifier. Wyo. Stat. 8-1-103.

We do, however, note the similarities to the definition used by the Wyoming Supreme Court when it defined "natural gas" for purposes of the revenue and taxation statutes in Amoco Production Co. v. State, 751 P.2d, 379 at 382-283, (Wyo. 1988). The Court stated:

The great weight of authority compels us to the conclusion that the legislature used the word natural gas in it technical sense, and that the most sensible and appropriate resolution of this question is that the legislature intended natural gas to include all gases that occur naturally in gas produced from drilled wells.

40. We do believe that the outside substance gas is not taxable because, as was stipulated by the parties, the taxes have been paid prior to production from the North Buck Draw Unit and to tax the same gas would result in double taxation. Ad valorem tax imposed on minerals is a property tax which taxes the full value of the mineral produced. Wyoming State Tax Commission v. BHP Petroleum Company Inc., 856 P.2d 428, 434 (Wyo. 1993). It is unlike the annual real property tax because it is imposed once, on production. Double taxation would occur if the gas were produced twice and subjected to the same kind of tax.

Is the Method, to Exempt from Taxation the Outside Substance Gas as Employed by DOR and Agreed to by Taxpayer Arbitrary and Capricious?

41. DOR and Taxpayer agreed to deduct from taxation the same volume of gas, adjusted for heating value, that was injected from another formation before assessing severance or ad valorem taxes. This is the same method agreed to in the operating unit agreement, accepted by the Wyoming State Land Office, accepted by the Wyoming Oil and Gas Commission and is a generally accepted method in the oil & gas industry.

42. This method is reasonable because it considers the primary factors that determine the value of the product, volume and heating value.

43. This method is acceptable to the Council of Petroleum Accountants Societies.

44. The method advanced by the Petitioners, deducting the value of the injected gas from the value of the produced gas, would be difficult to administer because of the problem of valuing the injected gas. Many assumptions must be made to make the calculation. Finally, this method may result in a volume of gas not being taxed if the price of gas decreases from the time the injected gas is first produced to the time the gas is produced for the second time. We can find no support for this method by the Council of Petroleum Accountants Societies.

45. The Council of Petroleum Accountants Societies have announced other methods for exempting outside substance gas. The other two methods have validity. One method is to:

• Injected gas is considered to be reproduced proportionately with original formation gas, i.e., a certain percentage of all gas produced is considered to be reproduced injected gas.

This is the method DOR attempted to use in the Kerr-McGee Corporation, Docket 94-29, (Dec. 1993) case. The prior SBOE rejected that method. We believe that the SBOE erroneously relied on a ruling of the Wyoming Oil and Gas Commission to reach that conclusion. Months after the SBOE decision the Wyoming Supreme Court held that tax decisions could not be made by the Wyoming Oil and Gas Commission. Kerr-McGee v. Wyo. Oil & Gas Conservation Commission, 903 P.2d 537, 538 (Wyo. 1995). If the DOR were to determine it was appropriate to exempt injected gas production based on a proportion it may be upheld.

Another method the Council of Petroleum Accountants Societies has provided is:

• Injected gas is considered to be reproduced only after estimated reserves of original formation gas have been depleted.
  

An advantage of this method is that it would encourage full production of gas and dissuade premature shutting in of units.

46. This SBOE cannot usurp the authority of DOR to determine the method most appropriate to exempt outside substance gas from taxation. Amoco Production Company v. Wyoming State Board of Equalization, 2000 WL 359196 (Wyo. April 10, 2000).

47. The program of injecting outside substance gas to encourage oil production is not new in this state. It was used in 1985 on the Powell Pressure Maintenance Unit. The DOR has not adopted any rules to exempt the outside substance gas and this is disturbing. There have been many years to adopt such a rule. Two cases have been litigated before this SBOE on this question. It is apparent the Taxpayer was concerned, a concern which need not occur if a rule had been adopted. An advantage of such a rule is that future Taxpayers would have notice of the method that would be used resulting in uniformity of taxation. Uniformity may not result if the DOR continues to make individual agreements with Taxpayers. Another rationale for a rule is that all parties would have an opportunity to present their ideas. The Petitioners in this case were only able to comment in an appeal.

48. We conclude the DOR appropriately exempted from taxes the outside substance gas by an appropriate method.

IT IS THEREFORE ORDERED certification of value is affirmed.

Dated this 23rd day of May, 2000.

Roberta A. Coates

Ron Arnold, Member

ATTEST:

Kathleen A. "Cindy" Lewis" Executive Secretary