                                                                                           05/23/2017


                                       DA 16-0474
                                                                                       Case Number: DA 16-0470


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       2017 MT 122



RICHLAND AVIATION, INC.,

               Appellee and Cross-Appellant,

         v.

STATE OF MONTANA, DEPARTMENT OF REVENUE,

               Appellant and Cross-Appellee.



APPEAL FROM:          District Court of the Seventh Judicial District,
                      In and For the County of Richland, Cause No. DV 14-40
                      Honorable Katherine M. Bidegaray, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                      David R. Stewart, Courtney Mathieson, Elizabeth M. Roberts, Special
                      Assistant Attorneys General, Department of Revenue, Helena, Montana

                For Appellee:

                      Jared M. Le Fevre, David C. Clukey, Crowley Fleck PLLP, Billings,
                      Montana



                                                 Submitted on Briefs: April 12, 2017

                                                            Decided: May 23, 2017


Filed:

                      __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     The Montana Department of Revenue (DOR) appeals the judgment of the Seventh

Judicial District Court, which granted summary judgment in favor of Richland Aviation,

Inc. (Richland Aviation), by holding that Richland Aviation is not a “scheduled airline”

subject to central assessment by DOR. We affirm and state the issue as follows:

       Did the District Court err by concluding Richland Aviation was not a “scheduled
airline” and therefore not subject to central assessment?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶2     Since 1971, Richland Aviation, a company based in Sidney, Richland County,

Montana, has provided on-demand flight services, operating from the Sidney-Richland

Airport. Richland Aviation owns six light, twin piston engine aircraft, the largest of

which is a Cessna 404 with a maximum capacity of 2,684 pounds. Richland Aviation

hires out its aircraft and related services for the transport of people and goods on a

contract basis. Richland Aviation does not provide scheduled or pre-set flights beyond

the individual arrangements it enters with those hiring its services. As Richland Aviation

explains, “[o]ne cannot walk up to the gate, view a list of set and published dates and

times for flight, and purchase a ticket. Rather, use of the airplane is negotiated on a case-

by-case basis and via a negotiated contract.”

¶3     Richland Aviation has entered an agreement with the United Parcel Service (UPS)

to pick up and deliver freight at certain locations on a routine basis. Under the negotiated

agreement, the date, time, and pickup locations are determined exclusively by UPS, and



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all flights provided by Richland Aviation pursuant to the agreement are reserved

exclusively for the transport of UPS freight.

¶4        Since its inception, Richland Aviation has registered its aircraft with the

Department of Transportation pursuant to the aeronautical regulation and licensing

provisions in § 67-3-201, et seq., MCA. As DOR explains, these provisions impose an

aircraft registration fee in lieu of property taxes which is mutually exclusive to the system

of central assessment of scheduled airlines, and which is a prerequisite to operation of the

aircraft.1 See § 67-3-201(1), MCA (“[A] person may not operate or cause or authorize to

be operated a civil aircraft within this state unless the aircraft has an appropriate effective

registration, license, certificate, or permit issued or approved by the United States

government that has been registered with the department and the registration with the

department is in force.”). Richland Aviation’s aircraft have never been centrally assessed

for taxation by DOR.

¶5        In 2013, DOR sent a questionnaire to Richland Aviation and other air carriers to

determine if these companies “were operating in a manner that would subject them to

central assessment.” Richland Aviation returned the questionnaire, indicating that it

provided air transport services under a contract with UPS. DOR ultimately determined

that Richland Aviation “performs regularly scheduled flights for UPS” and was therefore

subject to centrally assessed taxes. Richland Aviation objected and filed the instant




1
    Br. of Appellant 2.
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proceeding to determine whether it was subject to the aircraft registration statutes, rather

than central tax assessment.

¶6     Because there was no statutory definition for the statutory term, “regularly

scheduled flight,” the District Court reasoned that the term “scheduled airline” had been

rendered “statutorily undefined and ambiguous,” and looked to authority from federal and

sister jurisdictions to define these terms. It concluded that Richland Aviation was not a

scheduled airline because it “does not hold out to the public that it operates between

certain places at certain times,” and granted summary judgment to Richland Aviation.

DOR appeals.

                               STANDARD OF REVIEW

¶7     We review de novo a district court’s ruling on summary judgment, applying the

criteria of M. R. Civ. P. 56(c)(3). Citizens for a Better Flathead v. Bd. of Cnty. Comm’rs,

2016 MT 256, ¶ 10, 385 Mont. 156, 381 P.3d 555 (citing Pilgeram v. GreenPoint Mortg.

Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839). We review a district

court’s conclusions of law to determine whether the court’s interpretation of the law is

correct. W. Energy Co. v. Mont. Dep’t of Revenue, 1999 MT 289, ¶ 6, 297 Mont. 55, 990

P.2d 767 (citing Nimmick v. State Farm Mut. Auto. Ins. Co., 270 Mont. 315, 319, 891

P.2d 1154, 1156 (1995)).

                                      DISCUSSION

¶8    Did the District Court err by determining that Richland Aviation was not a
“scheduled airline” and therefore not subject to central assessment?


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¶9     After the District Court entered its decision in this case, and before appellate

briefing was completed, we decided Montana Department of Revenue v. Alpine Aviation,

Inc., 2016 MT 283, 385 Mont. 282, 384 P.3d 1035. Alpine was a unique interlocutory

appeal of an adjudication of a “substantive question of law” pending before the State Tax

Appeal Board, pursuant to § 15-2-305, MCA, with no factual record. Alpine, ¶¶ 7, 10.

The purpose of that litigation was to obtain a definition of the key, but undefined,

statutory term, “regularly scheduled flights,” § 15-23-401(1), MCA, for purposes of its

application within other provisions that require central assessment of “scheduled airlines”

or “scheduled airline compan[ies].” Sections 15-23-101(3), 15-23-401(8), MCA; Alpine,

¶ 8.   We defined “regularly scheduled flights” as “those which follow an interval

according to timetables and locations predefined by the carrier and which fly regardless

of whether there are passengers or freight to be carried.” Alpine, ¶ 15. We noted that

“[o]ne key concept . . . is who sets the flight schedule. An airline arranges a regularly

scheduled flight; the customer does not.” Alpine, ¶ 14 (emphasis in original). Given the

posture of that appeal, we did not reach the ultimate question of whether Alpine Aviation

was a scheduled airline subject to central assessment. Alpine, ¶ 10.

¶10    DOR argues that the District Court’s order conflicts with Alpine because the

District Court reasoned that the statutory terms were ambiguous and looked to foreign

authority to arrive at a definition, when there is no ambiguity in the statutes. It also

argues that Richland Aviation should be deemed a “scheduled airline” because it offers

its services for hire by the general public and provides those services in accordance with

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an agreed-upon schedule, citing its contract with UPS. In answer, Richland Aviation

argues that the District Court should be affirmed because its services do not constitute

“regularly scheduled flights” as defined in Alpine. Richland Aviation argues that, even if

it flies regularly under its contract with UPS, the schedule and locations are not

“predefined by the carrier,” but, rather, predefined by the customer.            Alternatively,

Richland Aviation “invites this Court to reconsider the definition of ‘regularly scheduled

flights’ it provided in Alpine Aviation, taking into account the historical, industry,

technical, and peculiar meaning of the term ‘scheduled.’”

¶11    “It is a basic premise of the law of taxation that the foundation for levying and

assessing a tax depends upon the existence of a valid legislative act specifically

designating the imposition of the tax. Nothing is taxable unless clearly authorized by

statute.” Powder River Cnty. v. Mont. Dep’t of Revenue, 2002 MT 259, ¶ 40, 312 Mont.

198, 60 P.3d 357 (citing Connick v. Judge, 167 Mont. 357, 361, 538 P.2d 1024, 1027

(1975)); accord N. Pac. Ry. v. Carland, 5 Mont. 146, 200, 3 P. 134, 162 (1884); State ex

rel. Tillman v. District Ct., 101 Mont. 176, 181, 53 P.2d 107, 109-10 (1936); Swartz v.

Berg, 147 Mont. 178, 182-83, 411 P.2d 736, 738 (1966) (noting tax statutes are to be

interpreted “stricti juris,” that is, “strictly construed against the taxing authorities, and in

favor of the taxpayer,” citing 51 Am. Jur. Taxation § 650); Omimex Can., Ltd. v. Mont.

Dep’t of Revenue, 2008 MT 403, ¶ 21, 347 Mont. 176, 201 P.3d 3 (holding “tax statutes

are to be strictly construed against the taxing authority and in favor of the taxpayer”).




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¶12    In the briefing in this case, as in Alpine, the parties discuss a substantial body of

general aviation law and legislative history that they would like the Court to incorporate

into the analysis of the subject statutory definitions. See Alpine, ¶¶ 9-10. Richland

Aviation here draws our attention to this “entire universe of legal authority” in the hope

that we will revisit the definition recently adopted in Alpine, particularly by importing the

technical industry meaning of the term “scheduled.” See, e.g., Aircraft Owners & Pilots

Ass’n v. Port Auth. of N.Y., 305 F. Supp. 93, 97-98 (E.D.N.Y. 1969) (distinguishing

scheduled airlines, or “carriers,” from “General Aviation,” which “uses smaller aircraft”

and “possibly reflects a shorter average haul”). However, we conclude it is unnecessary

to do so in order to properly apply the Montana statutes. “[T]here is no reason for us to

engage in a discussion of the legislative history to construe [a] statute when we have

determined that the language of the statute is clear and unambiguous on its face.” State v.

Goebel, 2001 MT 73, ¶ 21, 305 Mont. 53, 31 P.3d 335 (citation omitted). Our reasoning

in Alpine demonstrated that the meaning of the words chosen by the Legislature was clear

on its face, as we noted that dictionary definitions of the statutory terms produced

“common sense renderings.” Alpine, ¶ 13. We realize that Alpine was devoid of a

factual record. Nonetheless, the Legislature did not choose to employ industry terms

such as “general aviation,” and we need not consider them where the issue is resolved

under the plain wording of the statutes.

¶13    DOR is required to centrally assess the property of “scheduled airlines.”

Section 15-23-101(3), MCA.       A “scheduled airline company” is “any person who

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undertakes directly or indirectly to engage in the business of scheduled air commerce.”

Section 15-23-401(8), MCA. In turn, “air commerce” is “the transportation by aircraft of

persons or property for hire in interstate, intrastate, or international transportation on

regularly scheduled flights.”    Section 15-23-401(1), MCA.       In Alpine, we defined

“regularly scheduled flights” as “those which follow an interval according to timetables

and locations predefined by the carrier and which fly regardless of whether there are

passengers or freight to be carried.” Alpine, ¶ 15. Such flights “occur[] on a uniform or

unvarying, and reoccurring, basis as preset by an airline and offered for hire to the

public.” Alpine, ¶ 14. A key element of these definitions is “who sets the flight schedule.

An airline arranges a regularly scheduled flight; the customer does not.” Alpine, ¶ 14

(emphasis in original).

¶14    DOR argues that the discussion in Alpine of “who sets the flight” is dictum

because “[t]his Court provided no further elaboration, nor any authority upon which to

rely,” but DOR overlooks the unique nature of the Alpine appeal. Alpine was decided

without a factual record from which to elaborate, and the opinion could be considered,

under DOR’s view, obiter dictum in its entirety, because we did not resolve the ultimate

issue. More to the point, the concept of the airline arranging the flight, and not the

customer, simply restates the clear meaning of the phrases “timetables and locations

predefined by the carrier” and flying “regardless of whether there are passengers or

freight to be carried,” which are included in the definition of “regularly scheduled

flights.” Alpine, ¶ 15.

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¶15    Applying these definitions here, Richland Aviation does not engage in “regularly

scheduled flights” required for central assessment. Richland Aviation does not publish or

otherwise predefine a schedule of flights that it offers to the public. It does not fly

“according to timetables and locations predefined by the carrier.” Alpine, ¶ 15. It flies

on a schedule that is arranged by the customer. Here, the customer whose contract gives

rise to this litigation, UPS, sets the dates, times, and pickup locations—not Richland

Aviation.

¶16    This conclusion corresponds with Montana’s aircraft registration statutes.

“[A]ircraft required to be registered in Montana are subject to a fee. The registration fee

is in lieu of property tax.” Section 67-3-204(1), MCA (emphasis added). However,

“aircraft operated by an airline company and regularly scheduled for the primary purpose

of carrying persons or property for hire in interstate or international transportation” are

exempt from registration. Section 67-3-201(3)(c), MCA (emphasis added). As such,

aircraft that are subject to the registration and fee requirements in Title 67, chapter 2,

part 2, MCA, imposed in lieu of property taxes, are generally not subject to taxation by

central assessment under § 15-23-101(3), MCA.

¶17    The District Court did not have the benefit of our ruling in Alpine when it issued

its opinion. Even though it employed a different analysis, concluding the statutes were

ambiguous and looking to foreign authority, the District Court nonetheless reached the

correct result.

¶18    Affirmed.

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                               /S/ JIM RICE

We concur:

/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER




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