LaFarge Corporation (LaFarge) operates a Portland cement manufacturing facility on a tract of private property it owns in Fredonia, Kansas. The tract includes a contiguous limestone quariy on one side at which LaFarge uses its Caterpillar equipment to load the raw material and haul it across the property to tire hammermills that perform the initial step in the cement manufacturing process. LaFаrge paid sales taxes to Martin Tractor Company on the purchase of repair parts for its loaders and haulers, but then unsuccessfully sought a refund of the sales taxes from the Kansas Department of Revenue (KDR). Ultimately, the Court of Tax Appeals (COTA) determined that the equipment, and therefore the repair parts, is exempt under K.S.A. 2010 Supp. 79-3606(kk)(2)(D) as being an integral or essential part of the integrated production opеration of the cement manufacturing facility. We agree that the equipment is being primarily used in the cement manufacturing business and at the manufacturing facility. Accordingly, we affirm COTA’s refund of sales taxes.
Factual and Procedural Overview
In tire first step of tire cement manufacturing operation, controlled explosions are used to blast limestone rock and other raw materials from the face of the quarry situated on one side of LaFarge’s tract. The blasting is pеrformed by a third party. The question of the use or taxability of the third party’s equipment is not an issue in this appeal.
At the quarry, LaFarge uses its own Caterpillar loaders to scoop up and place the loose limestone rock onto LaFarge-owned Caterpillar haulers. The haulers tiren transport the limestone over internal haul roads on LaFarge’s tract of private property (tract) to another contiguous area of die tract where the processing buildings and equipment — such as hammermills, crushers, and kilns — are located.
At some point after arriving at the processing site, the limestone is loaded into a hammermill to commence the process of transforming the raw material into Portland cement. While a description of the processes involved in that transformation is interesting, it is unnecessary to our decision in this case. We are concerned solely with the raw limestone loading and hauling operations, which are performed entirely upon LaFarge’s tract, i.e., the subject equipment does not leave LaFarge’s private property. The loaders are situated and operated on the portion of the tract that encompasses the quarry; the haulers travel between the quarry and the hammermills. None of the equipment is registered fоr highway use.
Sometime after July 1, 2000, LaFarge purchased repair parts for its loaders and haulers from Martin Tractor Company. In conjunction with those purchases, LaFarge paid sales taxes totaling $16,217.05. LaFarge filed for a refund of those sales taxes, claiming the repair parts were exempt from such
The KDR denied the claim, and LaFarge appealed to the COTA. KDR filed a motion for summary judgment with COTA, which in its order denying summary judgment statеd that KDR’s argument could be distilled as follows:
“1. LaFarge engages in two distinct business operations on its property. The first is a limestone excavation operation, which is conducted in and around the quarry. The second is a cement manufacturing operation, which begins with the crushing activities performed at the hammermill machines.
“2. K.S.A. 79-3606(kk)(l)(C) exempts sales of parts for machinery and equipment only if the machinery and equipment is used as an integral or essential part of an integrated production operation by a manufacturing or processing plant or facility.
“3. The LaFarge manufacturing plant operations begin at the hammermill machines because that is where the raw materials extracted from the quarry are [first] crushed or odierwise processed.
“4. The loaders and haulers are used in the quarry operation. They are not used primarily in the manufacturing operation at the plant.
“5. Therefore, neither tire loaders nor the haulers, nor their repair and replacement parts, are exempt from sales tax because the machinery and equipment is not used as part of an integrated production operation by a manufacturing or processing plant or facility, as required by K.S.A. 79-3606(kk)(l)(A).”
COTA found that “[t]he deficiency in [KDR’s] line of argument is revealed upon careful examinаtion of the relevant statutory provisions within the context of the overall legislative scheme expressed throughout K.S.A. 79-3606(kk).” Specifically, COTA found that KDR had failed to show that the loaders and haulers were not used as part of an integrated production operation and had failed to show that the machinery was not being used at the physical location of the manufacturing or processing plant or facility. Accordingly, COTA deniеd KDR’s motion for summary judgment. Although the order noted that LaFarge’s attorney had obliquely suggested that the court could enter summary judgment in favor of LaFarge based on the evidence in the record, COTA declined to do so.
Both parties filed a motion for reconsideration, and COTA granted the motions. After reconsideration, a majority of the court modified its prior order to grant complete summary judgment in favor of LaFarge. A dissenting judge oрined that the case was not ripe for summary judgment in favor of LaFarge, albeit that judge observed that she “cannot imagine just what information could be elicited by [KDR] on cross-examination that would convince this court that the equipment in question is not part of the manufacturing process.” KDR appealed COTA’s decision, claiming that it did not correctly, and strictly, construe the exemption provisions of K.S.A. 79-3606(kk).
Statutory Sales Tax Exemption
Article 36 of Chapter 79 of the Kansas Statutes Annotated con tains the Kansas Retailers’ Sales Tax Act. K.S.A. 2010 Supp. 79-3606 sets forth those sales that are exempt from the Act, i.e., the transactions on which a sales tax is not imposed. Subsection (kk) addresses sales of and repairs on machinery and equipment used by a manufacturing or processing plant or facility. K.S.A. 2010 Supp. 79-3606(kk)(l). The question presented is whether COTA erred in determining that LaFarge’s loaders and haulers are being used by, and at, its cement manufacturing facility.
Standard of Review
The Kansas Judicial Review Act (KJRA), K.S.A. 77-601
et seq.,
defines the scope of judicial review of state agency actions unless the agency is specifically exempted by statute. K.S.A. 2010 Supp. 77-603(a);
Cochran v. Kansas Dept. of Agriculture,
Further, KDR specifically stated in its brief that it “does not contest the COTA’s determination that the material facts are undisputed and that the issue was ripe for summaiy judgment.” Accordingly, the appellate review of COTA’s order granting summary judgment is de novo. See
Kuxhausen v. Tillman Partners,
Analysis
We begin by quickly disposing with some of KDR’s arguments. In its original order denying KDR’s summaiy judgment motion, COTA stated that it found “further support for our conclusions in various cases decided in other jurisdictions which have, like Kansas, adopted the Integrated plant theory.’ ” KDR complains that the cases upon which COTA relied pre-dated the 2000 amendments to K.S.A. 79-3606(kk). See L. 2000, ch. 123, sec. 1. KDR contends that the 2000 statutory amendments were intended to replace or supplant the common-law application of the integrated plant theory. Therefore, KDR argues COTA erred in deciding the case based on integrated plant theory common law rather than on an application of Kansas’ new statutory scheme. The argument is without legal or factual support.
As the COTA order disclosed in a footnote, KDR’s own general counsel, at a legislative hearing in 2000, testified that the proposed amendments were intended tо move Kansas from a state that employs some characteristics of the integrated plant theory to a pure integrated plant theory state. See Minutes of the Senate Assessment and Taxation Committee, March 22, 2000. For KDR to now argue that the 2000 amendments were intended to repeal or replace the common-law integrated plant theory is contradictory, if not disingenuous. More importantly, however, COTA clearly decided the matter based upon the current statutory scheme, citing to specific provisions and looking to caselaw merely to corroborate or support its statutory interpretation. Likewise, we will find our resolution in the statutory provisions.
Also, KDR urges us to apply the doctrine of operative construction to affirm its interpretation of the exemption statute. Citing to older cases, KDR claims entitlement to a grеat deal of judicial deference because it is charged with the enforcement of the Kansas Retailers’ Sales Tax Act. See,
e.g., Blue v. McBride,
Likewise, KDR claims tire benefit of our previously stated construction rule which calls for exemption statutes to be interpreted stricdy in favor of imposing the tax and against allowing an exemption for one who does not clearly qualify for the exemption. Sеe
In re Tax Exemption Application of Mental Health Ass’n of the Heartland,
We start with the statutory description of the property which is exempt under subsection (kk): “[Machinery and equipment which are used in this state as an integral or essential part of an integrated production operation by a manufacturing or processing plant or facility.” K.S.A. 2010 Supp. 79-3606(kk)(l)(A). KDR does not dispute that LaFarge maintains “a manufacturing or processing plant or facility” on the tract of land where the loaders and haulers are used. Instead, KDR claims that the loaders and haulers are not an essential or integral part of the integrated cement production operation and that the disputed equipment is not used at the manufacturing or processing plant or facility.
Before both COTA аnd this court, KDR made the unsupportable argument that LaFarge’s cement production operation does not commence until the limestone is loaded into the hammermill machines, because that is where the raw materials extracted from the quarry are first crushed or processed. COTA recognized that argument as an attempt to apply the narrower “Ohio rule” rather
than Kansas’ integrated production operation theory. See
In re Tax Appeal of Collingwood Grain, Inc.,
K.S.A. 2010 Supp. 79-3606(kk)(2) assists us by providing a number of definitions. Under subsection (B), “production line” is defined as “where the actual transformation or processing of tangible personal property occurs.” At most, the hammermills would be the beginning of the production line, i.e., where the actual transformation of limestone into cement occurs. But the dеfinition of “integrated production operation” in K.S.A. 2010 Supp. 79-3606(kk)(2)(A) encompasses much more. In addition to “[p]reduction line operations,” the integrated production operations specifically include “preproduction operations to handle, store and treat raw materials.” (Emphasis added.) K.S.A. 2010 Supp. 79-3606(kk)(2)(A). Limestone is a raw material for the cement. Prior to loading the limestone into the hammermills to commence the production fine operations, LaFarge’s preproduction handling and storing of the limestone is essential and integral to its integrated cement production operations.
Likewise, K.S.A. 2010 Supp. 79-3606(kl<)(3) assists us by providing a fist of uses where the “machinery and equipment shall be deemed to be used as an integral or essential part of an integrated production operation.” That fist includes: “(A) To receive, transport, convey, handle, treat or store raw materials in preparation of its placement on the production line.” K.S.A. 2010 Supp. 79-3606(kk)(3)(A). As applied to LaFarge, the statute contemplates that the integrated cement production operations will require the receiving of limestone from some source and the transporting of it to where it needs to be for handling and storage in preparation for its placement into the hammermills to commence productiоn fine operations. The loaders and haulers are used to fulfill those essential functions of the integrated cement production operation.
KDR attempts to divert the analysis to a discussion of whether the excavation of the limestone at the quarry fits the definition of a “manufacturing or processing business” under K.S.A. 2010 Supp. 79-3606(kk)(2)(D). The definition contains some illustrations, in-
eluding the recitation that “processing operations shall include operations at an . . . excavation site where the . . . stone . . . that has been extracted from the earth is cleaned, separated, crushed, ground, milled, screened, washed, or otherwise treated or prepared before its transmission to a refinery or before any other wholesale or retad distribution.” K.S.A. 2010 Supp. 79-3606(kk)(2)(D)(i). KDR asserts that the limestone is not processed in any manner
As COTA found in its original order denying summary judgment to KDR, the agency “conflates, and thus confuses, the physical and non-physical requirements found in the definition of ‘manufacturing or processing plant or facility/ ” As will be discussed below, to be exempt under subsection (Me), the machinery and equipment must not only be used in an activity which is an essential or integral part of the integrated production operation, but such exempt use must occur at the physical location of the plant or facility. But the definitions and illustrations in K.S.A. 2010 Supp. 79-3606(kk)(2)(D)(i) deal with determining whether the activity involved is exempt; the definition in K.S.A. 2010 Supp. 79-3606(kk)(2)(C) addresses the location of the plant or facility. Here, we are unconcerned with whether the third-party excavatоr is a manufacturing or processing business, because the cement plant activities in which LaF arge is engaged unquestionably meet that criterion. And as COTA correctly found in its order on reconsideration, “the loaders and haulers are used in preproduction operations to handle and transport raw materials in preparation for its placement on the production line” of the cement plant or facility.
Turning to а consideration of the physical location of the equipment, we reiterate that to fit the definition of exempt machinery and equipment in K.S.A. 2010 Supp. 79-3606(lck)(l)(A), the equipment must be used
“by
a manufacturing or processing
plant or
facility.” (Emphasis added.) That same language was contained in the prior version of the exemption statute. In recognizing the physical component of the exemption in subsection (Me), COTA cited
to our prior decision in
In re Tax Appeal of Western Resources,
Inc.,
Nothing in the 2000 amendments suggests a legislative intent to change that ruling. To the contrary, in addition to retaining the “by a manufacturing or processing plant or facility” language in K.S.A. 2010 Supp. 79~3606(kk)(l)(A), the definition of integrated production operation” in K.S.A. 2010 Supp. 79-3606(kk)(2)(A) speaks to “an integrated series of operations engaged in at a manufacturing or processing plant or facility.” (Emphasis added.) Likewise, K.S.A. 2010 Supp. 79-3606(kk)(5)(C) specifically excludes, inter alia, “transportation . . . equipment not primarily used in a production, warehousing or materiаl handling operation at the plant or facility.” (Emphasis added.) Accordingly, the loaders and haulers must have been used at the physical location of the cement manufacturing or processing plant or facility to be eligible for the 79-3606(kk) sales tax exemption.
The question then is where to draw the boundaries of LaFarge’s cement plant or facility. The exemption statute informs us, in K.S.A. 2010 Supp. 79-3606(kk)(2)(C), that
“ ‘manufacturing or processing plant or facility’ means a single, fixed location owned or controlled by a manufacturing or processing business that consists of one or more structures or buildings in a contiguous area where integrated production operations are conducted to manufacture or process tangible personal property to be ultimately sold at retail. Such term shall not include any facility primarily operated for the purpose of conveying or аssisting in the conveyance of natural gas, electricity, oil or water. A business may operate one or more manufacturing or processing plants or facilities at different locations to manufacture or process a single product of tangible personal property to be ultimately sold at retail.”
KDR suggests that the manufacturing or processing plant or facility only encompasses the area immediately surrounding the hammermills and LаFarge’s other processing structures or buildings. That contrived reading of K.S.A. 2010 Supp. 79-3606(kk)(2)(C) discards most of the language the legislature employed and effectively replaces it with the subsection (B) definition of “production line,”
i.e.,
“the assemblage of machinery and equipment... where the actual transformation or processing of tangible personal property occurs.” K.S.A.,2010 Supp. 79-3606(kk)(2)(B). We must decline KDR’s suggestion that we cavalierly rewrite the legislation. See
Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs,
Finally, we address KDR’s argument that COTA’s ruling would allow a business to be sales tax exempt for nonmanufacturing operations if the nonexempt activities are conducted on a single piece of land where exempt manufacturing operations are also occurring. KDR contends that it is сommon for a manufacturer to operate a retail store on contiguous land adjacent to its production line. Again, KDR ignores that the equation has two parts: the type of activity and the location of the activity. To be exempt, the machinery and equipment must be both used by the manufacturing or processing plant or facility and used at the manufacturing or processing plant or facility. So, notwithstanding the retail store’s location in a contiguous area, it would not fit within the requirement of K.S.A. 2010 Supp. 79-3606(kk)(2)(C) that it be “where integrated production operations are conducted to manufacture or process tangible personal property.” Contrary to KDR’s apparent fears, COTA’s determination in this case will not propel the area of manufacturing sales tax exemptions down a slippery slope.
In sum, we find that COTA correctly determined that LaFarge was entitled to the sales tax exemption under K.S.A. 2010 Supp. 79-3606(kk) for the repair and replacement parts and accessories it purchased for the loaders and haulers used at its cement plant.
Affirmed.