C & P TELEPHONE CO. OF MD. v. Director of Finance, City Council of Baltimore

BELL, Judge. We granted certiorari in this case to consider whether, pursuant to Baltimore City Code (1983 Repl.Vol. & 1993 Cum.Supp.) Article 28, § 55(a)(1), a tax levied on the “gross sales price” of “sales for consumption” of electricity applies to certain charges on the petitioners’ monthly electric bills that do not vary in proportion to the amount of electricity consumed. On motion for summary judgment, the Maryland Tax Court concluded that the charges at issue were not “sales for consumption” of electricity, and, therefore, the City ordinance did not provide for their taxation. The Circuit Court for Baltimore City affirmed the Tax Court’s decision.

On appeal, the Court of Special Appeals reversed the judgment of the circuit court. Director of Finance v. Charles Towers, 104 Md.App. 710 , 657 A.2d 808 (1995). At the petitioners’ request, we granted the writ of certiorari. We shall affirm the judgment of the intermediate appellate court.

I. The facts in this case are largely undisputed; indeed, most were stipulated by the parties. Ordinance 745 of the Mayor and City Council of Baltimore, approved December 23, 1946, was enacted for the purpose of taxing, during 1947, inter alia, all sales for consumption for nonresidential uses of artificial or natural gas and electricity delivered in Baltimore City. Subsequently, Ordinance 108 continued the tax for the succeeding ⁵⁷⁰ years 1948-51. It was codified in the Baltimore City Code at Article 37, § 76.

Thereafter, Ordinance 88, permanently prescribing the utilities tax, was approved November 20, 1951. Although that provision has been amended frequently since 1951, including its scope, the portion relevant to this appeal has remained essentially unchanged. 1 Now codified in Article 28, § 55 provides, in pertinent part: (a)(1) Artificial or natural gas, electricity, and steam rates. There is hereby levied and imposed on all sales for consumption of artificial or natural gas, electricity and steam delivered in Baltimore City through pipes, wires or conduits within the limits of Baltimore City, hereinafter ⁵⁷¹ referred to as “energy sales,” and billed after the effective date hereof, a tax at the rate of 8% upon the gross sales price thereof. The monthly electricity bills the taxpayers received from BGE contained separately stated charges for each component of the gross sales price of electricity as required by the Public Service Commission (“PSC”). 2 Accordingly, the total bill for electricity sold to the taxpayers included the following charges: (1) Customer Charge — is designed to recover metering, billing, and other administrative costs of BGE associated with the production, transmission, distribution and sale of electricity.

It is billed based on a fixed monthly rate. (2) Demand Charge — is designed to recover the costs associated with the equipment and facilities needed to produce, transmit, and distribute electricity. It is billed by first identifying the half-hour during the month in which a consumer’s use of electricity was greatest, as measured in kilowatts, and then multiplying the number of kilowatts consumed by a fixed dollar amount. (3) Energy Charge — is based on total energy consumption during the month in kilowatt hours.[ 3 ] (4) Fuel Rate Charge — is designed to recover BGE’s fuel costs related to the electricity sold by it.

It is calculated by ⁵⁷² multiplying total kilowatt hour usage for the billing period by the dollar amount of the current fuel rate.[ 4 ] The City sales tax, pursuant to Art. 28, § 55(a)(1), was collected on the aggregate of the monthly customer charge, demand charge, energy charge and fuel rate charge. In 1991, each of the petitioners in this case, C & P Telephone Co., Santoni’s Inc., Charles Towers Partnership, Apartment Services, Inc., and United Holdings Co. Inc. (“the taxpayers”) filed separate claims with the respondent, the Director of Finance for the Mayor and City Council of Baltimore (“the Director”) for refund of the 8% utility tax paid on the customer and demand charges for which Baltimore Gas & Electric (“BGE”) billed them over the preceding three years. 5 The ■ customer and demand charges, unlike the energy and fuel rate charges, were not calculated based on the actual amount of electricity consumed. Therefore, the taxpayers contended that these charges were not “sales for consumption” and should not be taxed. After six months elapsed with no determination from the director as to the validity of their claims, the taxpayers, pursuant to Maryland Code (1957, 1994 Repl.Vol.) Article 24, § 9-712(d)(2) and Maryland Code (1988, 1996 Cum.Supp.), § 13-510(b), of the Tax-General Article 6 treated the claims as ⁵⁷³ denied and appealed to the Maryland Tax Court. 7 In that court, all parties filed motions for summary judgment, along with supporting affidavits.

Because each of the taxpayers’ motions addressed the same issue, the Tax Court consolidated them for hearing. Finding no genuine dispute as to any material fact, and persuaded by its reasoning in Baltimore County v. Blue Circle Atlantic, Misc. Nos. 684-688 (Aug. 15, 1990), the Tax Court granted summary judgment in favor of the taxpayers. It determined, as a matter of law, “[t]hat Article 28, § 55(a)(1) of the Baltimore City Code (the ‘City Ordinance’) does not authorize the assessment and collection of the public utilities tax on ‘demand charges’ and ‘customer charges’ as those charges are not sales of electricity actually consumed.” Therefore, on December 14, 1993, the Tax Court ordered the Director to refund with interest to the taxpayers the taxes they paid on such charges. 8 The Director sought ⁵⁷⁴ judicial review in the Circuit Court for Baltimore City. 9 After a hearing on the merits, that court held that: [T]he findings of the Tax Court are correct.

It is the language of the statute that convinces me. [I]t just doesn’t make common sense to apply any other language to this other than sales of electricity which is actually consumed .... So ... I’m mak[ing] a finding that the order of the ... Tax Court is hereby affirmed.

Thereafter, the Director appealed to the Court of Special Appeals, arguing, inter alia, that the plain and unambiguous meaning of the City Ordinance required inclusion of the customer and demand charges in the “gross sales price” on which the ordinance imposes the tax, and that the Tax Court and the circuit court failed to accord due deference to the administrative construction of the statute by the Director as authorized by Baltimore City Code, Art. 28, § 55(d). 10 The Court of Special Appeals reversed the judgment of the circuit court. Director of Finance, supra, 104 Md.App. at 730 , 657 A.2d at 818 . Although it did not find the ordinance to be “plain and free from ambiguity,” id. at 715 , 657 A.2d at 811 , the intermediate appellate court nevertheless held that the phrase “sales for consumption” meant “retail sales” of electricity, specifically, those purchases made by the ultimate consumers of the electricity, as opposed to those purchases made “for the purpose of reselling electricity to other consumers.” Id. ⁵⁷⁵ at 718, 657 A.2d at 812 . The correctness of its interpretation of the phrase was confirmed, the court stated, by the Director’s administrative interpretation of the ordinance, which was “entitled to significant weight.” Id. at 722-23 , 657 A.2d at 815 .

The taxpayers petitioned for certiorari and the Director filed a conditional cross petition. Although we granted both the taxpayers’ petition and the Director’s conditional cross petition, 11 our resolution of the issue the taxpayers raise, makes consideration of the conditional cross appeal unnecessary.

II

A. In their brief, the taxpayers 12 contend that the Tax Court correctly interpreted the ordinance as imposing the electricity tax only on charges based on the amount of electricity actually consumed, namely, the energy and fuel rate charges. They maintain that the Tax Court’s interpretation of the ordinance comports with the rules of statutory construction. In this regard, they submit that the Tax Court first concluded that the language of the ordinance was clear and unambiguous and then “simply applied the ordinary meaning ⁵⁷⁶ of those words.” Thus, the taxpayers conclude that the Tax Court’s decision was legally correct. 13 The taxpayers further maintain that the Court of Special Appeals “reweigh[ed] and reinterpret[ed]” the facts in this case and then applied its own construction of the law to those facts. As evidence of such behavior, the taxpayers point to, inter alia, the intermediate appellate court’s decision to give significant weight to the City’s long-standing administrative practice of treating the ordinance as a tax on retail sales of electricity.

Id. at 721-22 & n. 5, 657 A.2d at 814 & n. 5. The taxpayers contend, however, that despite this administrative practice, the only evidence in the record demonstrating such an application of the tax is the affidavit of Ottavio Grande, the City Collector. In that affidavit, Mr. Grande stated that the City does not, nor has it ever, collected electricity taxes from a waste processing facility known as Baltimore Refuse Energy Systems Co. (“BRESCO”), because BRESCO is not the ultimate consumer of electricity, but rather a reseller. Nevertheless, the taxpayers argue that this affidavit is wholly insufficient to demonstrate that the City made its taxability determinations based on whether the transaction was retail or wholesale in nature. 14 Finally, the taxpayers contend that this Court’s holding in Controller v. Pleasure Cove, 334 Md. 450 , 639 A.2d 685 (1994), in which we interpreted Anne Arundel County’s so-called “boat slip tax,” is “equally applicable to this tax on the ⁵⁷⁷ consumption of electricity.” Accordingly, the taxpayers argue that, just as in Pleasure Cove , where the boat slip rental charge was separately stated on the bill from the charges for other marina services, and in which we held that the County was not authorized to impose the boat slip tax on the charges for those other services, 334 Md. at 461 , 639 A.2d at 691 , the customer and demand charges in the instant case are for something other than the subject of the tax.

In addition, the taxpayers note that, as in Pleasure Cove , the tax at issue is not a general retail sales tax, but rather a tax on a specific item, namely, sales for consumption of electricity. On this basis, the taxpayers conclude that, inasmuch as customer and demand charges are not sales for consumption, the imposition of the electricity tax on them “exceeds the scope of the taxing statute.” B. On the City’s behalf, the Director contends that the taxpayers have muddied the distinction between the subject of the tax and the method by which the amount of tax is calculated. The subject of the tax, according to the Director, is “sales for consumption of ... electricity.” He thus points out that it is undisputed that the taxpayers consumed all of the electricity BGE sold them. As to the calculation of the tax, the Director, also citing Pleasure Cove, supra, 334 Md. at 461-63 , 639 A.2d at 691-92 , maintains that customer and demand charges are an integral part of the “gross sales price” 15 of electricity because “they cover [a] part of the cost of producing, transmitting and selling electricity that is covered by no other component of the price charged by BGE for the electricity purchased and consumed by [the taxpayers].” He concludes, therefore, that the manner in which the components of the gross sales price are calculated has no bearing on whether there is a sale for consumption of electricity. ⁵⁷⁸ Consequently, the Director submits that the Tax Court’s decision was premised on an erroneous conclusion of law, there being no support in the text of the ordinance for the taxpayers’ contention that, to be taxable, every component of the gross sales price must vary directly with the amount of electricity sold.

As the Director sees it, the City Council’s purpose in emphasizing that the gross sales price was to be taxed at a stated rate “was to make clear that every component of the price of electricity sold for consumption was to be included in that amount.” The Respondent’s Brief at 24. The Director also notes, as did the Court of Special Appeals, that for residential customers and non-residential customers with a demand of less than 60 kilowatts, all costs of providing electricity are included in the energy rate. Director of Finance, supra, 104 Md.App. at 720 , 657 A.2d at 813 . Accordingly, he asserts, the term “gross sales price” should not encompass fewer costs of providing the taxpayers in this case with electricity than it does for providing electricity for consumption by residential customers or non-residential customers with a demand of less than 60 kilowatts.

III

As is customary in statutory construction cases, we begin our analysis by reviewing the pertinent rules. Of course, the cardinal rule is to ascertain and effectuate legislative intent. Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995); Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448, 451 (1994); Condon v. State, 332 Md. 481, 491 , 632 A.2d 753, 755 (1993). To this end, we begin our inquiry with the words of the statute and, ordinarily, when the words of the statute are clear and unambiguous, according to their commonly understood meaning, we end our inquiry there also.

Oaks, supra, 339 Md. at 35 , 660 A.2d at 429 ; Buckman, supra, 333 Md. at 523 , 636 A.2d at 451 ; Condon, supra, 332 Md. at 491 , 632 A.2d at 755 ; Harris v. State, 331 Md. 137, 145-46 , 626 A.2d 946, 950 (1993). ⁵⁷⁹ Where the statutory language is plain and unambiguous, a court may neither add nor delete language so as to “reflect an intent not evidenced in that language,” Condon, supra, 332 Md. at 491 , 632 A.2d at 755 , nor may it construe the statute with “ ‘forced or subtle interpretations’ that limit or extend its application.” Id. (quoting Tucker v. Fireman’s Fund Insurance Co., 308 Md. 69, 73 , 517 A.2d 730, 732 (1986)). Moreover, whenever possible, a statute should be read so that no word, clause, sentence or phrase is rendered superfluous or nugatory. Buckman, supra, 333 Md. at 524 , 636 A.2d at 452 ; Condon, supra, 332 Md. at 491 , 632 A.2d at 755 .

Applying these principles to the case sub judice, we are of the opinion that the Tax Court, in interpreting Art. 28, § 55(a)(1), reached its result based on an erroneous conclusion of law. Consequently, we are “under no statutory constraints in reversing [it].” Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 834 , 490 A.2d 1296, 1301 (1985); Supervisor of Assessments v. Carroll, 298 Md. 311, 318 , 469 A.2d 858, 861 (1984); Comptroller v. Mandel Re-election Committee, 280 Md. 575, 578 , 374 A.2d 1130, 1131-32 (1977). As we have seen, the Tax Court, in its summary judgment orders issued in favor of the taxpayers, found, as a matter of law, that § 55(a)(1) “does not authorize the assessment and collection of the public utilities tax on ‘demand charges’ and ‘customer charges’ as those charges are not sales of electricity actually consumed.” (Emphasis added). In reaching this conclusion, however, the Tax Court imported language into the ordinance that impermissibly altered its meaning.

Condon, supra, 332 Md. at 491 , 632 A.2d at 755 . Nowhere in § 55(a)(1) does it state that the tax is to be levied on sales of electricity for “actual” consumption. Rather, it clearly states that the tax is to be imposed on “all sales for consumption.” In our view, the operative word in that phrase is “sales,” as that is the unit of consideration on which the City Council imposed the tax. Having thus established that “sales” of electricity for consumption are the taxable event under § 55(a)(1), to be taxable, ⁵⁸⁰ a sale needs only to be “for consumption,” (emphasis added), not actually consumed.