In this рroperty tax dispute, plaintiff, Qwest Corporation ("Qwest"), appeals the
We conclude that DPT reasonably interpreted the tax statutes at issue in applying them only to cable cоmpanies. We further conclude that DPT applied these statutes constitutionally because it could have done so based on administrative convenience. Therefore, we affirm.
I. Background
DPT is responsible for determining "[the actual value for property tax purposes of the operating property and plant of all public utilities doing business in this state ...." § 39-1-108(8), C.R.S8.2010. The definition of "public utility" includes telephone companies. § 39-4-101(8)(a), C.R.S.2010. Cable companies are not included in the definition of "public utility" and are specifically exempt from regulation under the "Intrastate Telecommunications Services" article and "the 'Public Utilities Law' of the state of Colorado." § 40-15-401(1)(a), C.R.S$.2010. Because cable companies are not public utilities, their property is valued and taxed locally in the "county wherein such property is located." § 89-1-103(5)(a), C.R.S.2010.
DPT's valuation method for public utilities differs from that used by county assessors for property owned by non-utilities Compare §§ 39-4-101 to -110, CR. $.2010 (DPT's valuation method for public utilities), with § 89-1-108(5)(a) (county assessor's valuation method for real and personal property). Q@west concedes that as a telephone company, it is a public utility, but asserts that this classification does not justify differential taxation of Qwest property which is similar to property of cable companies providing comparable telephone services.
A DPT report, "Analysis of Telecommunication Company Property Tax Procedures and Recommendations for Statutory or Procedures [sic] Changes" (DPT Report)
The DPT Report observed "profound and significant change" in the telecommunications industry, leading to traditional telephone companies and cable companies "providing generally the same services." The report noted that the ability of both types of companies to provide similar services created "equity issues" in property taxation. Specifically, it described application of sections 39-1-103(13) and 39-8-118, C.R.S.2010, to cable companies, but not to telephone companies, as "an illustration of disparate treatment for similar property that is similarly situated."
Qwest alleged that: it is similarly situated to cable companies which provide competing telephone services and use comparable property to that used by Qwest to provide such services; local assessment of cable' company property is more favorable than central assessment of its property because local assessment includes an intangible property exemption, section 39-3-118, and caps the maximum taxable value of non-utility property based on the cost approach, section 39-1-
Qwest asked the trial court to interpret sections 89-38-118 and 39-1-103(18) as applying to its prоperty or, in the alternative, to find DPT"s refusal to do so unconstitutional under the uniform taxation provision of the Colorado Constitution, Colo. Const. art. X, § 3, and the Equal Protection Clause of the United States Constitution, U.S. Const. amend. XIV. The trial court found Qwest's statutory interpretation arguments to be precluded by United States Transmission Sys-: tems, Inc. v. Bd. of Assessment Appeals, TIS P.2d 1249 (Colo.1986) (specific statutory provisions governing public utilities control over more general provisions), and the deference owed to DPT"s interpretation. It also rejected Qwest's constitutional claims, explaining that for tax purposes, "the Colorado legislature has classified telephone companies differently from cable companies ... [,] and that classification is not unreasonable or arbitrary ... because telephone companies are regulated differently from cable compаnies." The court concluded that Qwest had "not stated a claim for which relief can be granted under any theory of law," and granted DPT's motion to dismiss.
We begin with Qwest's statutory interpretation argument because if it is correct, Qwest's constitutional challenges would become moot. See, eg., Adams County School Dist. No. 50 v. Heimer,
IL Statutory Interpretation
Qwest contends DPT can and should interpret the intangible property exemption, seetion 39-8-118, and the "cost cap" limitation on value, section 39-1-108(13), as applying to its property. We reject Qwest's position on both statutes.
Initially, we address DPT's assertion that because Qwest did not plead a separate declaratory relief claim based on its statutory interpretation arguments, they are properly before us "only if the [DPT's] interpretation While Qwest did not is unconstitutional." plead such a separate claim, we conclude that its allegations and prayer for relief sufficient ly raised these issues. See Hemmann Management Services v. Mediacell, Inc.,
We review questions of statutory interpretation de novo. Bd. of County Comm'rs v. ExxonMobil Oil Corp.,
If we 'conclude "that the statute is unambiguous and the intent appears with reasonable certainty, our analysis is complete.". Gerganoff,
A. Intangible Property Exemption
Section 89-1-1083(8) states that "[the actual value for property tax purposes of the operating property and plant of all public utilities doing business in this state shall bе' determined by the administrator, as provided
Qwest first asserts that the reference in section 39-1-108(8) to article 4 establishes only who must assess public utility property, not how such assessments are to be conducted. This assertion assumes that the limiting clause "as provided in article 4" modifies only "by the administrator" and not also "shall be determined." We reject this assumption for two reasons.
First, it ignores the more grammatically-correct reading that where, as here, a limiting clause "occurs at the end of the sentence and is set off by a comma, [it] thereby mod-iflies] all the preceding language." People v. Johnson,
Nevertheless, Qwest asserts that sections 39-3-118 and 39-4-102(1)(b) can be read harmoniously if the DPT administrator considered "the existence" of a public utility's intangibles when calculating its unit value; separately valued those intangibles; and then deducted that value from the unit value. Because the unit value of the public utility may be greater than the sum of its parts, the net effect could be a higher unit value after subtracting the separate value of its intangibles than if the intangibles had not been considered. Thus, according to Qwest, only this synergy value of the intangibles should be taxed.
This argument comports with the view that "the true measure of value of the property of a public utility is its worth as an integrated and operating unit rather than the sum of the values of the various components making up that unit." Unmited States Transmission Systems, Inc.,
We see no necessary conflict between the exemption of intangible personal property, as such, from taxation and the mandate to consider intangiblеs when valuing public utility property on a unitary basis. To the extent that the two statutory provisions may be read to conflict, the special provision for public utility taxation must prevail over the general exemption for intargible personal property.
Qwest attempts to distinguish United States Transmission Systems, Inc. in two ways. First, it asserts that the supreme court could have "see[n] no necessary conflict" between the two provisions only by implicitly recognizing Qwest's higher unit value approach. Second, it asserts that because the court perceived no conflict between the provisions, its statement that "the special
In United States Transmission Systems, Inc., the court said without reservation that intangibles are to be taxed: "the intangible rights of a public utility that directly contribute to its operations are to be considered as a factor in valuing and taxing the operating property and plant of the public utility." Id. at 1256 (emphasis added). It explained, "property taxation of a public utility in Colorado is not precluded simply because the only portion of the public utility's operating property and plant found within this state is [its] intangible rights...." Id. at 1256-57. But despite this detail, it said nothing about considering only the higher value that might be attributed to intangibles using the "integrated and operating unit" approach. Further, if Qwest's interpretation would have avoided any conflict, the court need not have invoked the principle that a "special provision" requiring consideration of intangibles takes precedence over a "general exemption." And, we are generally reluctant tо treat the supreme court's statements as mere dicta. See, e.g., Allstate Ins. Co. v. Blount,
Accordingly, because our conclusion rests on the plain language of the provisions, and is consistent with Unmited States Traonsmission Systems, Inc., we need not utilize interpretive aides.
B. Cost Cap
Under section 89-1-103(13)(a), "the cost approach shall establish the maximum value of [personal] property. ..." Qwest asserts that despite DPT'"s contrary interpretation, this "'cost cap' approach [applies] to the valuation of all personal property" (emphasis in original), including that of public utilities. We conclude that even assuming the statute could be read this way, DPT's interpretation is reasonable, and therefore is entitled tо deference.
Section 39-4-102(1) directs the administrator to "determine the actual value of the operating property and plant of each public utility as a unit...." (Emphasis added.) This directive is limited only by the specific factors to be considered. See id. By contrast, section 89-1-103(18)(a) does not mention actual value but, rather, specifies that as among the "cost approach, market approach, and income approach," the cost approach "shall establish the maximum value of property," subject to the limitation that "all costs incurred in the acquisition and installation of such property are fully and completely disclosed by the property owner to the assessing officer."
The "cost cap" in section 89-1-108(13) could be inconsistent with determining actual value under section 39-4-102(1) because, as Qwest asserts, "a premise of the 'unit' method is that the value of public utility property may be higher when it is operated as part of a going concern 'unit'. ..." Cf. United Parcel Service of America, Inc. v. Huddleston,
Nevertheless, Qwest argues that it is entitled to the "cost cap" based on the use of "assessing officer" in section 39-1-103(13), in contrast to other provisions of the property tax statute which use "assessor." Seq, eg., § 39-1-108(5)(a) ("[all real and personal property shall be appraised ... by the assessor ..."}
"'Assessor' means the elected assessor of a county ...." § 89-1-102(2), C.R.S.2010. Qwest asserts that because the statute does not define "assessing officer," it includes the DPT administrator. Thus, according to Qwest, the mandate in section 39-1-108(183) that "an assessing officer" employ the "cost cap" applies to DPT. However, despite the legislative failure to define "assessing officer," DPT"s interpretation that the "cost cap" does not apply to Qwest is reasonable, on two grounds.
First, Qwest cites no authority, nor have we found any, treating the DPT administrator as an "assessing offiсer." But several cases assume equivalency between "assessing officer" and the local "assessor." Seq, e.g., Home Federal Savings Bank v. Larimer County Bd. of Equalization,
Second, section 839-4-102(1) specifically covers public utilities and mandates "actual value" assessment, without regard to a "cost cap." Therefore, implying that the DPT administrator must employ a "cost cap," in the absence of any specific statutory direction, would conflict with this mandate. See, eg., Waste Management of Colorado, Inc. v. City of Commerce City, 250 P.8d 722, 725 (Colo. App.2010) (reading statutory provisions as a whole, "consistently and in harmony with the overall statutory design").
Thus, because DPT's intеrpretation of these statutes is reasonable, we defer to that interpretation. See Petron Development Co.,
III. Equal Protection and Uniform Taxation
Qwest also contends the trial court erred in summarily rejecting its claims that DPT's interpretation and application of sections 89-3-118 and 39-1-108(13) deny it the guarantees of uniform taxation and equal protection. We discern no constitutional violation.
A. Standard of Review
We review a trial court's decision on a motion to dismiss de novo. Abts v. Bd. of Educ.,
A statute is presumed to be constitutional, and at trial the plaintiff must establish that the statute is unconstitutional beyond a reasonable doubt. E.g., Jensen v. City & Cnty. of Denver,
However, we disagree with DPT's assertion that Qwest's complaint must negate "every conceivable basis which might support [the tax classification]." Such a burden may be appropriate for summary judgment or at trial. See, eg., American Mobilehome Ass'n,
We need not address DPT"s assertion that Qwest "lacks standing to assert" underre-porting by cable companies of the infrastructure they use for telephone services. This assertion mistakenly presumes that Qwest is challenging the tax benefits enjoyed by cable companies. Instead, the complaint asserts a constitutional right "to a reduction in value [of Qwest property] to the level at which cable companies have been assessed."
We reject DPT's invitation to avoid this constitutional issue by treating the tax differential as within its substantial discretion to investigate and remedy alleged episodic un-derreporting by any cable company. DPT fails to identify anything in the record that supports this position. Further, the complaint alleges that "the denial of the cost approach 'cap' and the intangibles exemption conferred to similarly situated taxpayers is systemic and intentional."
B. Equality and Uniformity in Property Taxation
Before 1982, the Colorado Constitution's "uniform taxation" article provided, in relevant part: "All taxes shall be uniform upon each of the various classes of real and personal property located within the territorial limits of the authority levying the tax...." Colo. Const. art. X, § 3(1)(a) (amended 1982). The "Gallagher Amendment" altered the provision to provide, as relevant here: "Each property tax levy shall be uniform upon all real and personal property not exempt from taxation under this article located within the territorial limits of the authority levying the tax." Colo. Const. art. X, § 8(1)(a). The federal Equal Protection Clause states, in relevant part: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
Qwest argues that after the Gallagher Amendment, the uniform taxation article provides a higher standard of equal protection than does the federal Equal Protection Clause. However, it does not assert that the level of protection offered by these provisions differed before the Gallagher Amendment, nor does it cite any Colorado case before the amendment that applied a two-tiered analysis.
To the contrary, of the few cases in which the two provisions have been analyzed simultaneously, none has distinguished between them, and some have described them as coextensive. See, e.g., Dolan,
Therefore, we first examine whether the statutory provisions were constitutionally appliеd under the pre-Gallagher framework, treating the uniform taxation article of the Colorado Constitution as co-extensive with the federal Equal Protection Clause. After determining that the provisions were constitutionally applied to Qwest under that clause, we then address whether the uniform taxation article compels a contrary conclusion because of the Gallagher Amendment. We conclude that it does not.
C. Pre-Gallagher
A law challenged on equal protection grounds is subject to rational basis review, unless the law involves a suspect classification or infringes on a fundamental constitutional right, either of which requires review under heightened scrutiny. FCC v. Beach Communications, Inc.,
"The Constitution presumes that, absent some reason to infer antipathy, even improvident [legislative] decisions will eventually be rectified by the democratic process." Vance v. Bradley,
Courts are "especially deferential in the context of classifications made by complex tax laws." Nordlinger v. Hahn,
there is a plausible policy reason for thе classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.
Fitzgerald v. Racing Ass'n of Central Iowa,
First, the governmental decisionmaker must base the classification on a policy reason that is legitimate and plausible. One such reason is the government's interest in its own efficient and effective operation. See, e.g.. Carmichael v. S. Coal & Coke Co.,
Second, the classification must rest on legislative facts that "rationally may have been considered to be true by the governmental decisionmaker." Nordlinger,
Third, the classification need nоt be drawn "with mathematical nicety" because the issues facing governments "are practical ones and may justify, if they do not require, rough accommodations ...." Dandridge v. Williams,
We reject Qwest's assertion that a more rigorous analysis is required by District 50 Metropolitan Recreation Dist. v. Burnside,
reasonable and not arbitrary and based upon substantial differences having a reasonable relation to the objects or persons dealt with and to the public рurpose sought to be achieved by the legislation involved.8
Qwest cites no Colorado property tax case since District 50 that has articulated the test this way, nor are we aware of any. Other
such cases, including ones that cite District 50 approvingly, have articulated the rational basis test as more deferential toward the governmental decisionmaker. See Dolan,
We also disagree with Qwest that District 50's articulatiоn of the test applies because the plaintiff there, like Qwest here, suffered dismissal for failure to state a claim. Qwest cites no case, nor have we found any, in which the substantive equal protection analysis-as contrasted from the standard of review-was affected by the posture of the case. The equal protection guarantee remains the same regardless of the stage at which the trial court decides the case.
Our inquiry is further cireumseribed because Qwest neither disputes its statutory classification as a public utility nor alleges that cable companies should be so classified. Rather, Qwest contends only that its property must receive the same tax benefits as similar property used by cable companies to
We agree that whether the overall economic impact of the regulatory structure favors Qwest
Instead, we conclude that DPT"s application of the tax statutes to value utility property as a unit could rationally have been based on administrative convenience. Accommodating Qwest's concerns would require DPT to employ a multi-step process involving at least the following:
e Identify non-utilities that provide competing services to those offered by utilities;
e Determine which property of such utilities is exclusively or at least primarily involved in providing the services subject to competition;
e Back that property out of the utilities' unit values (as discussed in the preceding section); and
© Apply the cost cap and intangible exemption to that property.
We recognize that DPT did not raise administrative convenience before the trial court and has not argued it on аppeal. However, had DPT done so below, the factual record before us on de novo review -the complaint and the DPT report-would be the same. Further, we "may affirm a correct judgment based on reasoning different from that relied on by the trial court." Steamboat Springs Rental & Leasing, Inc. v. City & County of Denver, 15 P.8d 785, 786 (Colo. App.2000); see Whidden v. People,
Qwest's allegation, confirmed by the DPT report, that some "equipment used by cable companies ... is apparently being reported to DPT to be taxed as 'telephone company' property within DPT"s assessment jurisdiction," does not disprove administrative convenience. The complaint alleges that less than 10% of eable company property used to provide telephone services is valued and assessed centrally. Thus, achieving the equality Qwest demands would still require the multi-step process discussed above as to a significant amount of property.
Finally, Qwest's assertion that the trial court failed to accept concessions in the DPT Report of "equity issues" and "disparate treatment for similar property," which Qwest argues at least requires us to remand for an evidentiary hearing, is also unavailing. First, because our review is de novo, the trial court's reasoning has no bearing on our decision. See, eg., People v. Terry,
In sum, because DPT could reasonably have concluded that apportioning and valuing public utility property as Qwest asserts would result in administrative inconvenience, we discern no equal protection violation by DPT in refusing to interpret and apply the statutes as Qwest urges.
D. Post-Gallagher
We reject Qwest's further assertion that by removing the phrase "each of the various classes" from Colo. Const. art. X, § 8(1)(a), the Gallagher Amendment broadened the uniformity requirement so as to preclude the separate tax classification of public utilities Even assuming that the amendment restricts the legislaturе's ability to make tax classifications by property type,
Qwest relies on Legislative Council of the Colorado General Assembly, An Analysis of 1982 Ballot Proposals (Research Publication No. 269, 1982) ("Blue Book"), as well as Attorney General's Opinion, Attorney General File No. 0AG8303218-LM (1983),
The Blue Book noted that the Gallagher Amendment "would not permit the General Assembly to adjust assessments for specific classes of property." (Emphasis added.) It further explained:
[The statutes now provide for reduced valuation for assessment or special provisions with regard to determining actual value for the following classes of property : property used in the production of gasohol, works of art, rehаbilitation of certain older residential property, renovation of certain older commercial buildings that are part of a public redevelopment project, and property utilized in developing alternate energy sources.
(Emphasis added.) See Carrara Place, Ltd. v. Arapahoe County Bd. of Equalization,
After the amendment passed, the AG opinion concluded that certain statutes reducing valuation for specific classes of property had been "repealed by implication." Later, the legislature repealed all of the statutes protecting the classes of property that the Blue Book mentioned. See §§ 39-1-104(13) & (14) (gasohol plants), 39-5-105(2)(a) (remodeled residential), 39-5-105(8) (cоmmercial renovation), 39-1-104(6) (alternative energy devices), 389-1-104(15) (works of art), C.R.S. 2010; Ch. 268, 1987 Colo. Sess. Laws 1804 (deeming the first four statutes "inconsistent with the property tax provisions of section 3 of article X of the constitution of the state of Colorado").
While Qwest's interpretation of the Gallagher Amendment as restricting the legislature's ability to create tax classifications based on property type has support, here it is unavailing. Qwest's opening brief states the constitutional issue as, "Qwest is denied tax benefits provided to similarly situated taxpayers merely because it is a public utility." Thus, the disparate taxation of which @west complains rests on its classification as a public utility, not on the "specific classes of property" involved.
Based on the Blue Book, we conclude that the Gallagher Amendment did not prohibit the legislature from creating a tax classifica
Nor do ownership-based classifications infringe constitutional rights, so long as they satisfy the rational basis test. See, eg. Nordlinger,
We are not persuaded otherwise by Qwеst's citation to out-of-state cases
Finally, we decline to address Qwest's assertion, made during oral argument, that the intangible property exemption is unconstitutional because the Gallagher Amendment limits exemptions to those expressly identified in the constitution. See Bd. of County Comm'rs v. City of Greenwood Village,
IV. Conclusion
Because we conclude that Qwest failed to state a claim as a matter of law, the judgment is affirmed.
. The complaint identifies and paraphrases this report. The record includes a complete copy. DPT does not dispute that we may consider it. See Stauffer v. Stegemann,
. For this reason, we reject Qwest's further argument that DPT should apply the intangible property exemption because Qwest benefits from other non-article 4 exemptions such as that for inventories of merchandise, materials, and supplies under section 39-3-119, C.R.S.2010. Qwest fails to identify any such exemption that directly conflicts with a provision under article 4, as the intangible property exemption does with section 39-4-102(1)(b).
. Some jurisdictions have adopted the valuation method Qwest advances. See, eg., GTE Sprint Communications Corp. v. County of Alameda,
. Using the cost approach would also increase the burden on the DPT administrator. In addition to determining the utility's unit value as a going concern, the administrator would be required to assess the separate value of each individual piece of property, aggregate those values, and then use the aggregated value, if it wаs less than the going concern value.
. However, as in section 39-1-103(13), other provisions also use "assessing officer." See, eg., § 39-1-103(11) (describing circumstances in which the "assessing officer" is not to consider "minerals in place" when determining the value of real property).
. We are bound to employ this standard, notwithstanding its anomalies. See, e.g., United Air Lines, Inc. v. City & County of Denver,
. See also Jefferson v. Hackney,
. This formulation of the test, from 12 Am.Jur. Constitutional Law § 469, was first adopted in Colorado in Champlin Refining Co. v. Cruse,
. We are not persuaded by the out-of-state authority on which Qwest relies. In Racing Ass'n of Central Iowa v. Fitzgerald,
. For instance, Qwest asserts that it derives no net benefit from the regulatory structure because the guaranteed return on investment is offset by the obligation to provide service in unprofitable areas.
. Such a conclusion is less than certain. See, e.g., Fidelity Castle Pines, Ltd. v. State,
. Indeed, while Qwest argues that "it is no longer constitutional for public utilities to be considerеd a separate class ... [,]" it concedes that "[wlhether taxpayers can be separated into classes other than those recognized in Colorado's constitution is an open question." (Emphasis added.)
. We need not decide whether a legislative classification by ownership might be challenged because it accomplishes indirectly what the Gallagher Amendment prohibits, see, eg., Game and Fish Commission v. Feast,
. Citizens Telecommunications Co. v. Arizona Dep't of Revenue,
. Only the Nebraska Constitution art. VIII, § 1, does not contain the "same class" language.