2012 VT 68


Vermont Golf Association, Inc. v.
Department of Taxes (2011-220)
 
2012 VT 68
 
[Filed 10-Aug-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2012 VT 68 

 

No. 2011-220

 

Vermont Golf Association, Inc.


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Rutland Unit,


 


Civil Division


 


 


Department of Taxes


December Term, 2011


 


 


 


 


Mary
  Miles Teachout, J.


 

Paul S. Kulig, Stephen E. Crowley, and John P. Crowley (On
the Brief) of Kulig & Sullivan,
  P.C., Rutland, for Plaintiff-Appellant.
 
William H. Sorrell, Attorney General, and Danforth Cardozo,
III, Assistant Attorney General,
  Montpelier, for Defendant-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
SKOGLUND, J.   Vermont Golf Association challenges the
superior court’s dismissal of its appeal from a decision by the Department of
Taxes assessing sales and use tax on prior activities.  The court based
its dismissal on Vermont Golf’s failure to provide security to the Commissioner
of Taxes to perfect its appeal to the superior court pursuant to 32 V.S.A.
§ 9817.  We affirm.
¶ 2.            
Vermont Golf sponsors golf tournaments throughout the state. 
Golfers pay entry fees to Vermont Golf, which thereafter pays “greens fees” to
the golf courses on which the tournaments are held.  The Department
audited Vermont Golf for the period from March 2001 through February 2008 and
assessed sales and use tax on the entry fees.  Vermont Golf contested this
assessment, and the Department credited it with the tax it had paid on the
“greens fees.”  Beginning in March 2008, Vermont Golf, under protest,
remitted to the Department the sales tax on the full amount of each entry fee
it collected.  Following a hearing, the Commissioner of Taxes concluded that
the entry fees were subject to sales and use tax.
¶ 3.            
After Vermont Golf appealed to the superior court, the Department
notified Vermont Golf that if it failed to pay security pursuant to
§ 9817, the Department could move to dismiss the appeal.  Vermont
Golf did not provide security, and the Department moved to dismiss.  The
superior court concluded that § 9817 mandates security to pursue an
appeal, and the court extended the time in which Vermont Golf could provide it. 
At that point, Vermont Golf offered to give a security interest in its assets,
but the Department rejected this offer and renewed its motion to dismiss. 
Vermont Golf filed a motion under Vermont Rule of Civil Procedure 74(c) for a
stay of the Commissioner’s decision.  
¶ 4.            
The superior court denied the stay and granted
the Department’s motion to dismiss the case.  The court ruled that
Vermont Golf had not complied with § 9817, which it concluded requires security
to be posted to perfect an appeal.  The court determined that Vermont Golf
was required to choose one of three options for providing security: paying the
deficiency, depositing the amount of the deficiency with the Commissioner, or
filing a bond with the Commissioner in the amount of the deficiency.  Vermont
Golf’s offer of a security interest did not, in the court’s view, satisfy the
statute.  Thus, the court held that even if the court ordered a stay,
Vermont Golf’s failure to provide security was a jurisdictional defect
precluding the appeal from going forward.  Accordingly, it granted the
motion to dismiss.  This appeal followed.
¶ 5.            
Vermont Golf argues that: (1) failure to give security pending appeal is
not a condition of an appeal compelling dismissal; (2) in the alternative, if
security pending appeal is required, post-audit taxes remitted to the
Department are a sufficient basis to allow an appeal; and (3) if security
pending appeal is not required, the court abused its discretion in denying its
motion for a stay.  The State contends that: (1) in order to pursue an
appeal, § 9817(a) requires taxpayers to “give security, approved by the
Commissioner, conditioned to pay the tax levied”; (2) post-audit remittance of
taxes is insufficient to obtain judicial review because the statute requires
security in the amount of the deficiency; and (3) the court correctly denied
Vermont Golf’s request for a stay because the requirement that it give security
before review was not an “agency decision” under V.R.C.P. 74(a).
¶ 6.            
Section 9817 of Title 32 provides as follows:
(a)
Any aggrieved taxpayer may, within 30 days after any decision, order, finding,
assessment or action of the commissioner made under this chapter, appeal to the
superior court. The appellant shall give security, approved by the
commissioner, conditioned to pay the tax levied, if it remains unpaid, with
interest and costs, as set forth in subsection (c) of this section.
 
(b) The appeal provided by this section shall be
the exclusive remedy available to any taxpayer for review of a decision of the
commissioner determining the liability of the taxpayer for the taxes imposed.
 
(c) Irrespective of any restrictions on the
assessment and collection of deficiencies, the commissioner may assess a deficiency
after the expiration of the period specified in subsection (a) of this section,
notwithstanding that a notice of appeal regarding the deficiency has been filed
by taxpayer, unless the taxpayer, prior to the time the notice of appeal is
filed, has paid the deficiency, has deposited with the commissioner the amount
of the deficiency, or has filed with the commissioner a bond (which may be a
jeopardy bond) in the amount of the portion of the deficiency (including
interest and other amounts) in respect of which review is sought and all costs
and charges which may accrue against the taxpayer in the prosecution of the
proceeding, including costs of all appeals, and with surety approved by the
superior court, conditioned upon the payment of the deficiency (including
interest and other amounts) as finally determined and all costs and charges. If
as a result of a waiver of the restrictions on the assessment and collection of
a deficiency any part of the amount determined by the commissioner is paid
after the filing of the appeal bond, the bond shall, at the request of the
taxpayer, be proportionately reduced.
 
(Emphasis added.)
 
¶ 7.            
“When interpreting a statute, our principal goal is to effectuate the
intent of the Legislature.”  Tarrant v. Dep’t of Taxes, 169 Vt.
189, 197, 733 A.2d 733, 739 (1999).  If legislative intent is clear from
the plain language of the statute, “the statute must be enforced according to
its terms” without resorting to other aids to statutory construction.  Id. 
If the statute is ambiguous, however, “legislative
intent must be determined through consideration of the entire statute,
including its subject matter, [and] its effects and consequences.”  Tarrant,
169 Vt. at 197, 733 A.2d at 739.  Although
ambiguous taxation statutes are generally construed in favor of the
taxpayer, “absent compelling indication of error, the interpretation of a
statute by the administrative body responsible for its execution will be
sustained on appeal.”  Morton Bldgs., Inc. v. Vt. Dep’t of Taxes,
167 Vt. 371, 374, 705 A.2d 1384, 1386 (1997) (quotations omitted).
¶ 8.            
The first sentence of § 9817(a) provides that any aggrieved taxpayer
“may” appeal the Commissioner’s decision to the superior court within thirty days
of the decision, and the second sentence of the subsection states that the
appellant “shall give security” as set forth in subsection (c) “if it [the
assessed tax] remains unpaid, with interests and costs.”  Although the two
conditions of an appeal—filing a notice of appeal within thirty days and
posting security—are set forth in two separate sentences in subsection (a)
rather than in one sentence, as in a previous iteration of the statute, the
subsection plainly makes the posting of security mandatory to perfect an appeal
to the superior court.
¶ 9.            
“Where a statute specifies acts to be done by parties to entitle them to
maintain an action or to perfect an appeal, it is generally mandatory.”  3
J. Singer, Sutherland Statutory Construction § 57:23 (7th ed. 2011); see id.
§ 57:15 (stating that statutory provisions “specifying steps necessary to
perfect appeal are mandatory”).  Here, § 9817(a) mandates the posting of
security for an appeal to the superior court.  Thus, failure to post
security is a fatal defect, regardless of whether we consider it to be
jurisdictional in nature.  Compare Holden v. Campbell, 101 Vt. 474,
476, 144 A. 455, 456 (1929) (“[W]hen the Legislature creates a remedy
contingent upon its being asserted within a specified period of time or in a
prescribed manner, such requirements must be substantially complied with in
order to give the court jurisdiction.”) with Jos. L. Muscarelle Dev. Co. v.
Manalapan TP, 13 N.J. Tax Ct. 330, 335 (1993) (holding that, whether viewed
as jurisdictional or merely quasi-jurisdictional defect, statute required that
specified portion of taxes be paid “in order to maintain the appeal”).
¶ 10.        
In short, § 9817(a) allows any aggrieved taxpayer to appeal to the
superior court, but the taxpayer must provide security approved by the
Commissioner to cover any tax that remains unpaid.  The statute requires
that the taxpayer either pay the tax assessed or post approved security as a
mandatory condition to appeal the Commissioner’s decision to the superior
court.  “Many states have ‘pay-to-play’ statutes, which generally require
that a tax be paid before it can be contested in court.”  D. Young, Challenging
State and Local Taxes on Constitutional Grounds, 10 J. Multistate Tax’n
& Incen. 12, 21 (2000).  Requiring the paying of a tax before
obtaining judicial review does not violate due process.  See Hoffer v.
Ancel, 2004 VT 38, ¶ 14, 176 Vt. 630, 852 A.2d 592 (mem.) (noting that
United States Supreme Court made clear in McKesson Corp. v. Div. of
Alcoholic Beverages & Tobacco, 496 U.S. 18, 36-37 (1990) stating that
“due process is fully secured by a system that requires the taxpayer to pay the
tax before having a right to contest it by way of refund”); see Akins v.
Miss. Dep’t of Rev., 70 So. 3d 204, 209 (Miss. 2011) (citing McKesson
and noting that requiring payment of tax “before seeking judicial review has
been held to provide taxpayers with a fair opportunity to challenge the
validity of the tax”).
¶ 11.        
Vermont Golf does not dispute the State’s representation in this appeal
that the Department of Taxes has always construed § 9817, as well as similar
provisions relating to taxes on tobacco products and rooms and meals, as
pay-to-play statutes.  Further, Vermont Golf concedes that the language of
§ 9817(a) prior to 1998—when the statute was amended to reflect its current
language—required the posting of security to go forward with an appeal,
notwithstanding any inconsistency in the language of § 9817(c). 
Vermont Golf contends, however, that the Legislature intended the 1998
amendment to eliminate the requirement that security be posted to proceed with
an appeal to the superior court.  We disagree.
¶ 12.        
The prior version of § 9817(a), enacted in 1969, see 1969, No. 144, § 1,
was one long sentence providing that an aggrieved taxpayer could “appeal to the
superior court, by filing a petition of appeal with the superior court
as prescribed by law and on giving security . . . as set forth in
subsection (c).”  32 V.S.A. § 9817(a) (1991) (emphasis added).  We
agree with Vermont Golf that this earlier version of § 9817(a) required the
posting of security to proceed with an appeal to the superior court.  Cf. Baird
v. State Dep’t of Rev., 545 So. 2d 804, 805-06 (Ala. Civ. App. 1989)
(construing similar language to mean that “the taxpayer must comply with each
condition precedent [including posting bond] in order to perfect an appeal to
the circuit court”).
¶ 13.        
According to Vermont Golf, the 1998 Amendment, in which the current
language of § 9817(a) was adopted, eliminated the security requirement for
perfecting an appeal by placing that requirement in a second sentence separate
from the first sentence containing the right to appeal.  That is plainly
not the case, however, as demonstrated by the purpose statement inserted with
the 1998 amendment and by the legislative history of that amendment.  The
purpose section to Act 161, which amended § 9817 along with many other statutes
dealing with appeals from administrative agencies to courts, states as follows:
  It is the
intent of the general assembly that this act shall clarify existing law and
practice by providing uniform language regarding appeals.  The act
is not intended to make substantive changes to the law.  The act
leaves questions such as choice between jury trial or court trial, de novo or
on the record appeal, and scope of review to specific statutory provisions or
prior practice governing appeals from particular agencies, including rules of
court procedure.
 
1997, No. 161 (Adj. Sess.), § 1
(emphasis added).  This statement of purpose unambiguously evinces a
legislative intent merely to clarify existing law and practice while providing
uniformity to language regarding appeals from administrative agencies to
courts—without making any substantive changes to the law.
¶ 14.        
Arguing that the new language inserted by the 1998 amendment concerns
procedural rather than substantive matters, Vermont Golf would have us believe
that, despite this statement of purpose, the Legislature intended the new
language to change § 9817 from a pay-to-play statute into one that does not
make the posting of security mandatory—a reading contrary to the Department of
Taxes’ longstanding interpretation of the statute that it is empowered to
execute.  Whether the change resulting from the 1998 amendment is labeled
substantive or procedural in nature, construing it as eliminating the
pay-to-play status of § 9817 would unquestionably impose a significant change
to the meaning of the statute as long construed by the Department of Taxes—a
change involving important public policy interests.  See F.M.
Burlington Co. v. Comm’r of Taxes, 134 Vt. 515, 518, 365 A.2d 531, 533
(1976) (stating that § 9817 is “a special statute” vitally affecting
public interests involving imposition and collection of taxes).
¶ 15.        
Because of § 9817’s special status, we held in F.M. Burlington,
that “the taxpayer’s right of appeal” is governed, with respect to the
availability of extensions of time to appeal, by § 9817, as opposed to the more
general appeals statute and Vermont Rule of Appellate Procedure 4, which allow
requests for extensions of time to appeal.  Id.  We were
persuaded by the fact that the later-enacted general appeals statute included
“no legislative intention providing an extension of the specific time
limitations contained in a proceeding arising out of the special legislation
creating the sales and use tax.”  Id.  We reasoned that a
later general appeals statute “not expressly contradicting” the earlier
specific one could “not be considered as intended to affect the more particular
or positive previous provisions, unless it is absolutely necessary to give the
latter act such a construction.”  Id. at 518-19, 365 A.2d at 533
(quotation omitted).  Here, of course, with a far more substantive change
at stake, this rule of construction should have even greater force.
¶ 16.        
This case has similarities to Perry v. Med. Practice Bd., 169 Vt.
399, 737 A.2d 900 (1999).  There, we concluded that the Medical Practice
Board had the authority to deny a request to withdraw an application for a
medical license.  Id. at 405, 737 A.2d at 905.  The appellant
argued that a subsequent 1997 amendment to the relevant statute explicitly
giving the board the power to deny a request to withdraw an application
demonstrated that such power had been previously lacking.  We stated that
to attain the “fundamental objective” of discerning and implementing
legislative intent, we would “look to the words of the statute itself, the
legislative history and circumstances surrounding its enactment, and the
legislative policy it was designed to implement.”  Id. at 406, 737
A.2d at 905; see Dep’t of Bldgs. & Gen. Servs., 2003 VT 92, ¶ 14,
176 Vt. 41, 838 A.2d 78 (“We have frequently relied upon legislative history
where the meaning of the statute cannot be determined from the words alone.”); MacDonough-Webster
Lodge No. 26 v. Wells, 2003 VT 70, ¶ 6, 175 Vt. 382, 834 A.2d 25 (“In
circumstances where the purpose and significance of a statute are unclear, we look
to the statute’s legislative history to ‘shed light’ on its meaning.”).
¶ 17.        
Examining the 1997 amendment in Perry, we noted: (1) the
amendment “was part of a larger, omnibus bill revising and standardizing the
procedures that govern the regulation of thirty-four separate occupations and
professions”; (2) the board had a prior, longstanding policy of disallowing
requests to withdraw medical-license applications except under certain limited
circumstances; and (3) a memorandum contemporaneous to the amendment from the
Director of the Office of Professional Regulation described the relevant part
of the amendment as a provision to clarify existing law and practice.  169
Vt. at 406, 737 A.2d at 905.  We concluded that “[t]hese circumstances
strongly support[ed] an inference that the amendment was intended to clarify
the meaning and scope of the Board’s regulatory authority, not to change
it.”  Id. at 406-07, 737 A.2d at 906.
¶ 18.        
In this case, no inference is required.  The Legislature explicitly
declared that the statute was intended only to clarify existing law and
practice.  As in Perry, the amendment was part of an omnibus bill
with twenty-five separate sections involving appeals from a wide range of
administrative agencies.  See 1997, Act 161 (Adj. Sess.), §§ 1-25. 
The driving force behind the bill was the judiciary’s Civil Rules Committee,
whose chairman explained to the Senate Judiciary Committee that attorneys had
complained over the years about the bewildering array of procedures and
antiquated language involving appeals from various administrative
agencies.  The chairman further stated that the bill was aimed at getting
rid of arcane language and procedures and making it clear to attorneys and
clients where and when to take an appeal.  Judicial Review of
Administrative Actions: Hearing on H.30 Before Senate Judiciary Comm.,
1997-1998 Bien. Sess. (Vt. January 16, 1998).  Indeed, the purpose
statement eventually enacted as part of Act 161 was proposed to the House
Judiciary Committee by the chairman of the rules committee to make it
absolutely clear that the amendment was intended only to clarify existing law
and not to affect any substantive rights.  Judicial Review of
Administrative Actions: Hearing on H.30 Before Senate Judiciary Comm.,
1997-1998 Bien. Sess. (Vt. May 2, 1997).
¶ 19.        
Moreover, the chairman of the House Judiciary Committee, where Act 161
originated, told the Senate Judiciary Committee that this was “strictly a
housekeeping bill” that affected “no substantive rights” but rather was aimed
only at “clean[ing] up language that does not conform to the standard way of
describing how an appeal is taken.”  Judicial Review of Administrative
Actions: Hearing on H.30 Before Senate Judiciary Comm., 1997-1998 Bien. Sess.
(Vt. May 2, 1997 and March 31, 1998).  The chairman advised that the Civil
Rules Committee had solicited input from all of the affected departments,
including the Department of Taxes.  The general counsel for the Department
of Taxes told the Senate Judiciary Committee that she was familiar with the
changed language in the three sections concerning taxes on tobacco products,
meals and rooms, and sales and use, and that she supported the changes, which
were aimed at getting rid of arcane and antiquated language.  Judicial
Review of Administrative Actions: Hearing on H.30 Before Senate Judiciary
Comm., 1997-1998 Bien. Sess. (Vt. May 2, 1997).
¶ 20.        
Nowhere in the legislative history of the bill over a span of two
legislative sessions is there any discussion of altering the Department of
Taxes’ longstanding interpretation of § 9817 (or other comparable provisions
dealing with taxes on tobacco products and rooms and meals) as pay-to-play
statutes requiring the posting of security to proceed with an appeal to the
superior court.  Notably, in simplifying the language in the tax statutes,
the 1998 amendment removed not only the “by filing” phrase that Vermont Golf
concedes made it a pay-to-play statute, but also the phrase “to prosecute the
appeal to effect” in the tobacco products and meals and rooms statutes, which
even more explicitly demonstrated the pay-to-play aspect of those
statutes.  1997, Act 161, §§ 22-23.  It is inconceivable that the
Legislature intended to make such a significant policy change affecting
substantial rights, as well as the public fisc, without any discussion of such
a change.
¶ 21.        
According to Vermont Golf, by standardizing all appeals from
administrative agencies to courts, the Legislature meant for the civil and
appellate rules, including Vermont Rule of Civil Procedure 74 and Vermont Rule
of Appellate Procedure 3, to be followed.  Under Rule 74(b), an appeal is
taken by filing a notice of appeal with the court in a manner as provided by
Appellate Rules 3 and 4.  Vermont Golf points out that, under Rule 3, an
appellant’s failure to take any step other than the timely filing of a notice
of appeal “does not affect the validity of the appeal, but is ground only for
such actions as the Supreme Court deems appropriate, which include dismissal of
the appeal.”
¶ 22.        
The short answer to this argument is that these are procedural rules,
and the specific statutory requirement of posting security in § 9817(a), which
affects substantial rights, trumps a procedural rule requirement.  Subsection
9817(a) establishes a specific, required statutory antecedent for an appeal
from a tax assessment to go forward.  The failure to post security may not
deprive the court of its subject matter jurisdiction, see In re Guardianship
of L.B., 147 Vt. 82, 84, 510 A.2d 1319, 1321 (1986) (noting that under
V.R.A.P. 3 timely filing of notice of appeal is only procedural step that is
jurisdictional, and holding that dismissal for failure to timely file statement
of questions for appellate review does not require dismissal on jurisdictional
grounds), but it conditions a taxpayer’s right to proceed with the appeal on
meeting the specific statutory requirement of posting security in the manner
set forth in § 9817(c).
¶ 23.        
Vermont Golf’s main argument in support of its position that § 9817(a)
does not require the posting of security as a condition to appeal to the
superior court is that compelling security as a condition to appeal is
inconsistent with § 9817(c), which contains language suggesting a scenario in
which an appeal could go forward without the security having been paid. 
The first problem with this position is that the language of § 9817(c) that
Vermont Golf relies upon was the same in relevant part before the 1998
amendment, and yet, as noted, Vermont Golf readily concedes that § 9817(a) was
a pay-to-play statute requiring the posting of security to perfect an appeal
before the Legislature supposedly eliminated that aspect of the law with Act
161.  As demonstrated above, the 1998 amendment did not affect § 9817 in
any substantive way.  Therefore, any inconsistency between subsections (a)
and (c) is overcome by the plain language of subsection (a) and the certainty
that the 1998 amendment was not intended to change its meaning.
¶ 24.        
Moreover, the State provided a reasonable explanation for any
inconsistency.  As the State notes, subsections (a) and (c) have distinct
purposes in the statute.  Subsection (a) makes the posting of security
mandatory to proceed with the appeal, while subsection (c) specifies the three
possible forms of the security that may be posted, provides for reducing the
security in specified circumstances, and allows the Department to assess a
deficiency after the expiration of the appeal period if security has not been posted,
notwithstanding a notice of appeal.  The last point is redundant and
perhaps inconsistent with respect to the requirement that security be posted
for the taxpayer to go forward with an appeal.  But, as the State points
out, any redundancy or inconsistency appears to result from the fact that some
of the language of subsection (c) was adopted wholesale from a federal statute
that is part of a different system in which, unlike in Vermont, an assessment
is imposed after rather than before a notice of deficiency and legal
proceedings.
¶ 25.        
For the same reason, Vermont Golf’s reliance on federal law is
misplaced.  Vermont Golf relies upon case law construing a federal statute
from which some of the language of subsection (c) is taken.  But § 9817(a),
not § 9817(c), is the subsection that establishes the statute’s pay-to-play
status.  See Rock v. Dep’t of Taxes, 170 Vt. 1, 8, 742 A.2d 1211,
1216-17 (1999) (cautioning against construing analogous federal provisions so
as to extend their force and operation “beyond the clear import of the language
and legislative intent).  For all of the above reasons, we uphold the
superior court’s dismissal of Vermont Golf’s appeal from the Commissioner’s
decision based on Vermont Golf’s failure to post security in the matter
required by § 9817.
¶ 26.        
Vermont Golf argues in the alternative that the appeal should be allowed
to go forward based on its post-audit taxes remitted under protest beginning in
March 2008 after the Commissioner’s ruling.  The State counters that the
procedure for providing security to stay an assessment is designed to protect
the State’s financial interest in taxes which have been assessed, not possible
future tax liabilities or, as in this case, taxes paid by Vermont Golf after
the audit.
¶ 27.        
As noted above, § 9817(c) provides that a taxpayer must pay the
deficiency, deposit the amount of the deficiency with the Commissioner, or file
a bond “in the amount of the portion of the deficiency (including interest and
other amounts) in respect of which review is sought and all costs and
charges.”  The statute refers to “the deficiency” as the deficiency being
appealed by the taxpayer.  Here, the Commissioner’s decision affirmed the
Department’s assessment.  Thus, to stay the assessment, Vermont Golf had
to pay the amount for which it was found liable in
the Commissioner’s decision, deposit that amount with the Commissioner, or file
a bond in the amount of which Vermont Golf sought review.  Vermont Golf’s
post-audit payment of taxes is irrelevant to this analysis.
¶ 28.        
Finally, we need not address Vermont Golf’s argument that the superior
court’s denial of its motion to stay should be overturned for abuse of
discretion, given our holding that § 9817 requires the posting of security
to perfect an appeal to the superior court.
Affirmed. 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 
¶ 29.        
ROBINSON, J., concurring.   I concur in the majority’s
conclusion based on the evolution of the language of 32 V.S.A. § 9817 since its
inception, as well as its application in practice through that time, that the
statute does, indeed, establish a so-called “pay-to-play” regime in connection
with appeals to the superior court of decisions of the commissioner relating to
the sales and use tax.  I write separately, however, because I believe the
majority’s conclusion that the plain language of the statute compels this
result fails to consider the statute as a whole, and thus gives short shrift to
the internal contradictions in the text of the statute.
¶ 30.        
In order to determine the intent of the legislature, we “must examine
and consider fairly, not just isolated sentences or phrases, but the whole and
every part of the statute . . . together with other statutes standing in pari
materia with it, as parts of a unified statutory system.”  State v.
Jarvis, 146 Vt. 636, 637-38, 509 A.2d 1005, 1006 (1986) (quotation
omitted).  “We have long presumed that ‘all language in a statute or
regulation is inserted for a purpose,’ and that we ‘must not allow a
significant part of a statute to be rendered surplusage or
irrelevant.’ ”  In re Miller, 2009 VT 36, ¶ 14, 185 Vt. 550,
975 A.2d 1226 (citation omitted).  
¶ 31.        
The majority is right that 32 V.S.A. § 9817(a) requires an aggrieved
taxpayer who files an appeal to give security, although the subsection in its
current form does not expressly state that payment of the security is a prerequisite
to maintaining an appeal, or that the penalty for failure to post security is
dismissal.  Meanwhile, 32 V.S.A. § 9817(c) provides, in relevant part,
that the commissioner may assess a deficiency after the appeal period runs
“notwithstanding that a notice of appeal regarding the deficiency has been
filed by the taxpayer, unless the taxpayer, prior to the time the notice of
appeal is filed, has [provided security].”  That provision expressly
contemplates and addresses the scenario in which a taxpayer has filed an
appeal, but has not provided security.  If provision of security is
an essential prerequisite to maintaining an appeal, then this portion of 32
V.S.A. 9817(c) is surplusage.  On the other hand, in order to give effect
to this language in subsection (c), we would have to conclude that the statute
is not “pay-to-play,” thereby rendering the second sentence of
subsection (a), which requires an appellant to give security, pointless—or at
least quite oddly-placed.  
¶ 32.        
In short, the statute as currently written is internally
inconsistent.  As a result of this ambiguity, we are called upon to
conduct the more searching exploration of legislative intent, including the
history and evolution of the statute, ably undertaken by the majority in this
case.  MacDonough-Webster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 6,
175 Vt. 382, 834 A.2d 25 (“In circumstances where the purpose and significance
of a statute are unclear we look to the statute’s legislative history to shed
light on its meaning.” (quotations omitted)).  I write separately in the
hope that express acknowledgment of the ambiguity in 32 V.S.A. § 9817 may lead
to clarifying revisions.
¶ 33.        
I am authorized to state that Chief Justice Reiber joins this
concurrence.

 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 

