Kushell v. Department of Natural Resources

RAKER, J. In this case we consider whether Maryland tax liability under § 8-716(c)(l)(iv) of the State Boat Act for “[t]he possession within the State of a vessel purchased outside the State to be used principally in the State” requires that the out-of-state purchase have been made with an intent to use the vessel principally in Maryland. We find that the plain language of the statute requires this result. Both parties to this appeal agree that appellant Charles Kushell did not intend, at the time of purchase, to principally use his vessel in Maryland. We shall reverse the Circuit Court’s order upholding a tax assessment against Kushell.

I. The following findings of fact from the Administrative Law Judge’s (“ALJ’s”) proposed decision are not disputed by either party: “1. The Genesis is a 58-foot Spindrift Motoryacht. The vessel is documented by the U.S. Coast Guard, and bears USCG Document Number 684088. 2. Mr. Kushell purchased the Genesis in 1989 for use as [a] residence in California at a time when he was employed and living in California.

The Genesis remained in California between purchase and 1996. 3. The vessel was purchased outside of Maryland. ⁵⁶⁷ 4. At the time that it was purchased, the vessel was not intended to be used principally in Maryland. 5. Mr. Kushell paid personal property taxes on the vessel to the State of California between 1989 and 1999. 6.

In 1996, the vessel was moved from the Pacific Ocean to the Atlantic Ocean, and after 1996 was used during most of the year in Florida and Man O’ War Cay, Abacos, Bahamas. 7. The vessel was in Maryland for the first time for approximately a month during the fall of 1996. 8. The vessel returned to Maryland for the summer months of 1997, and for successive years thereafter. 9. Mr. Kushell registered an inflatable dinghy with a small outboard motor in Maryland in 1997. 10.

The inflatable dinghy was kept during 1997 on a rack at Mears Marina in Annapolis, Maryland. 11. The Genesis was never used for a greater percentage of time in Maryland during any calendar year than it was used outside of Maryland. 12. During calendar year 2001, the vessel was in use in Maryland waters for a period of 171 days. The vessel was in Maryland from May 21, 2001 until November 7, 2001. 13.

During calendar year 2001, the vessel was in use out of the State of Maryland and out of the United States and its territories, for a period of 189 days. The vessel was in Man of War [Cay], Abacos, Bahamas from January 1, 2001, to May 16, 2001 and November 12, 2001 to December 31, 2001. 14. During the year 2001, the vessel was not used in any other state of the United States more than it was used in Maryland. 15. Mr. Kushell believed that so long as he kept his boat in Maryland less than six months per year, his boat would not be “in principal use” in Maryland for purposes of the State Boat Act use tax.[ 1 ] ⁵⁶⁸ 16.

Mr. Kushell was told by a representative of the Department of Natural Resources (“DNR”) that he was not required to pay the tax so long as the vessel was federally documented and was used in Maryland for less than six months of any given year. 17. The application of the definition of “State of Principal Use,” as employed by the DNR Boat Tax Enforcement Unit, has never been for a period of time of 6 months more or less. Instead, the application of “State of Principal Use” has always been for the period of time where the boat is most used in a state in a calendar year. 18. Mr. Kushell examined the DNR website, and found it confirmed his understanding that he did not owe tax so long as he had the boat out of Maryland the majority of the year. 19.

At all times relevant, including the present, the DNR web site contains the following text: “What is meant by ⁵⁶⁹ ‘used principally in Maryland?’ A vessel is considered used principally in Maryland if it is in Maryland the greatest percentage of time in a given calendar year.” 20. The definitions used for internal training by the Department of Natural Resources Division of Licensing define State of Principal Use as “the state or jurisdiction in which a vessel is used the greatest percentage of time in a calendar year.” 21. In DNR internal training, the definition of State of Principal Use is merely a starting point in the training of personnel. 22. Mr. Kushell relied on the DNR representative’s statement, and the statement on the website, in deciding to keep his boat in Maryland for 171 days in calendar year 2001. 23.

Had Mr. Kushell known that he could be responsible for the tax if the boat was only used in Maryland, and no other state of the United States, he would have registered the boat in Florida and kept it in that state for part of the year. 24. At the end of the calendar year 2001, Mr. Kushell was assessed excise tax, penalties and interest in the total amount of $14,304.54. He paid this amount in full on October 3, 2002, while reserving his right to challenge whether the tax was due.” Kushell appealed the tax assessment to the Office of Administrative Hearings (“OAH”), and OAH held a hearing pursuant to § 8-716.2(e). The ALJ ruled that Kushell was liable for the tax, rejecting Kushell’s contention that imposition of tax under § 8-716(c)(l)(iv) required that an owner have purchased his vessel with the intent to use it principally in Maryland.

He also rejected Kushell’s contention that DNR should be equitably estopped, based on the statements of its website and personnel, from collecting the tax. He rejected Kushell’s contention that a vessel must spend six months in Maryland in order to be “used principally” in this State. The ALJ further rejected Kushell’s arguments that § 8 — 716(c)(l)(iv) was uncon ⁵⁷⁰ stitutional, either for vagueness or as a duty on tonnage proscribed by U.S. Const, art. I, § 10, cl. 3.

The Secretary of Natural Resources adopted the entire proposed decision of the ALJ. Kushell filed in the Circuit Court for Anne Arundel County a petition for judicial review. The Circuit Court affirmed the agency decision, holding that the ALJ had construed § 8-716(c)(l)(iv) correctly in finding no requirement of intent. The court held that the ALJ had ruled correctly with respect to estoppel, and further found that the explanation of “used principally” on DNR’s website was not misleading.

The Circuit Court also agreed with the ALJ’s analysis of Kushell’s Constitutional arguments. Kushell noted a timely appeal to the Court of Special Appeals. We issued a Writ of Certiorari on our own initiative before consideration by that court. Kushell v. DNR, 383 Md. 569 , 861 A.2d 60 (2004).

II

Before this Court, Kushell argues that the State Boat Act imposes tax only on the possession of a vessel which, at the time of sale, was pm-chased with the specific intent of using it principally in Maryland. He argues that the plain language of § 8-716(c)(l)(iv) unambiguously requires this result. Kushell suggests that DNR’s reading renders the words “to be” nugatory, because the meaning would not change if “to be” were deleted and the statute simply read “possession within the State of a vessel purchased outside the state[,] used principally in the State.” DNR’s reading also renders the words “possession within the State” superfluous, according to Kushell, because any vessel used principally in Maryland is by definition possessed here. Kushell points to cases in which we construed the language “purchased ... tangible personal property for use, storage or [other] consumption in this State,” contained in Md.Code (1951), Art. 81 §§ 368(c) and 369, to require, as a precondition for assessment, that a purchaser have intended at the time of purchase to use, store, or consume the property in Maryland. ⁵⁷¹ See Comp, of Treas. v. Thompson Trailer Corp., 209 Md. 490, 495-96 , 121 A.2d 850, 853 (1956); Comptroller v. James Julian, Inc., 215 Md. 406, 412 , 137 A.2d 674, 679 (1958).

Kushell notes that Art. 81 § 368(c) was amended in 1955 to replace the phrase “for use, storage or other consumption” with “used, stored or consumed,” and that Art. 81 § 369 was simultaneously amended to delete altogether the phrase “for use, storage or consumption.” See 1955 Md. Laws, Ch. 332 at 507-08. We subsequently held that these amendments made liability “depend on actual use, storage or consumption in Maryland, rather than on purchase with intent to use, store or consume in the State.” Lane Const. Corp. v. Comptroller, 228 Md. 90, 92 , 178 A.2d 904, 905 (1962). Kushell contends that the current language of § 8-716(e)(l)(iv) is more akin to that of Md.Code (1951), Art. 81 §§ 368(c) and 369 than it is to the post-1955 versions of those statutes.

He suggests that this similarity evinces an intent on the part of the General Assembly to include the same intent requirement in the present-day boat tax as was contained in the pre-1955 general use tax. Turning to legislative history, Kushell contends that an earlier proposed version of the provision that ultimately became § 8-716(c)(l)(iv) would unambiguously have imposed the tax without regard to intent at the time of purchase. The rejection of this bill in favor of the enacted legislation, Kushell argues, demonstrates a legislative purpose to condition tax liability on the purchaser’s contemporaneous intent to use a vessel in Maryland. See House Bill 1575 (1985) (providing, in pertinent part, “the owner of any vessel that has a valid document issued by the United States Coast Guard and that is used principally on the waters of the State for pleasure shall pay a 5 percent excise tax on the gross sales price ....”) (emphasis added).

Kushell also notes a comparison between § 8-716(c)(l)(iv) and § 8-712.1(a)(l) of the Natural Resources Article. The latter statute provides: “An owner of a vessel that has a valid document issued by the United States Coast Guard and that is used principally on the waters of the State for pleasure shall ⁵⁷² apply to the Department for a Maryland use sticker.” (Emphasis added.) Kushell suggests that the variation is meaningful; that the present statutory scheme requires all federally documented vessels principally used in Maryland to display a use sticker, but imposes excise tax only on those purchased with the specific intent to make Maryland the state of principal use. Kushell also draws our attention to the Connecticut case of Magic II, Inc. v. Dubno, 206 Conn. 253 , 537 A.2d 998 (1988). In that case, the Connecticut Supreme Court examined the following language: “An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state.... ” Conn.

Gen.Stat. § 12-411 (1985). The Court upheld the Deputy Commissioner of Revenue’s interpretation that the statute required, as a condition precedent to liability, that “the purchase must have been made for the purpose of storage, use, or other consumption in this state.” Magic II, Inc., 537 A.2d at 999 (emphasis added). Kushell argues that the same interpretation would be appropriate in the instant case. Kushell also raises an estoppel argument.

Assuming arguendo that he is incorrect about the meaning of § 8-716(c)(l)(iv), Kushell argues that DNR should be estopped from assessing this tax because of Kushell’s reliance on potentially misleading statements on the DNR website concerning the definition of “principal use,” and because of his reliance on an incorrect oral explanation of that term by a DNR clerk. 2 Finally, he argues that the statute should be stuck down as ⁵⁷³ unconstitutionally vague, as applied either to Kushell or to others similarly situated. DNR argues that its interpretation of § 8-716(c)(l)(iv) is entitled to judicial deference. It further contends that the statute unambiguously subjects Kushell to the tax; that it is Kushell who is attempting to interpolate language by imposing an intent requirement not supported by the statutory text. DNR also suggests that Kushell’s reading would render other provisions of § 8-716 superfluous.

Specifically, it points to the system of tax abatement and exemption set out in § 8-716(f) 3 for vessels on which excise tax has already been paid to a jurisdiction with reciprocal provisions. According to DNR, this system would be superfluous if liability were dependent on original intent, because there would be no tax liability ⁵⁷⁴ for owners such as Kushell, and thus no need for a system of abatement. DNR argues that our interpretation of Maryland’s post-1955 general use tax in Lane furnishes persuasive authority for construing the current boat tax law. It suggests that under Lane, liability under a use tax is dependent on use or possession at the time of putative liability, not on subjective intent at the time of purchase.

DNR criticizes Kushell’s reliance on the defeated House Bill 1575 as evidence that the Legislature specifically considered and rejected a non-intent-based use tax on federally-documented vessels brought into Maryland. It argues that the provision at issue merely was a proposal to reassign collection of Maryland’s general personal property use tax, as applied to pleasure boats, from the Comptroller to the Department of Natural Resources. DNR points to the legislative history of § 8-716, highlighting language which was part of House Bill 1849 (1986), but was deleted from the statute as enacted. See 1986 Md. Laws, Ch. 828 at 3177-78.

That language would have provided: “Notwithstanding the provisions of this subsection, no tax is paid on ... (ii.) A documented vessel that is purchased or acquired prior to coming into this State by a nonresident of this State and: 1. Remains in this State for not more than 180 days.... ” DNR argues that the rejection of this language evinces a legislative intent contrary to Kushell’s position. With respect to Kushell’s estoppel argument, DNR contends that the government may not be estopped from performing the quintessentially governmental function of collecting a tax.

See Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 63-65 , 300 A.2d 367, 385-86 (1973). It acknowledges that agencies may be bound to follow their own rules and regulations, see U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 , 74 S.Ct. 499 , 98 L.Ed. 681 (1954); Pollock v. Patuxent, 374 Md. 463, 467 , 823 A.2d 626, 628 (2003), but denies that DNR rules or regulations ever have held “principal use” to require greater than six months’ use during a calendar year. It also argues ⁵⁷⁵ that § 8 — 716(c)(1) (iv) is sufficiently clear to render it not unconstitutionally vague.

III

This case requires us to review a conclusion of law, contained within a contested case decision by the Department of Natural Resources. Review of such a decision is governed by the Administrative Procedure Act, Md.Code (1984, 2004 Repl.Vol.), §§ 10-101 et seq. of the State Government Article. Section § 10-222(h) of the State Government Article provides as follows: “In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the final decision; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial