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  "name_abbreviation": "Four County Electric Membership Corp. v. Powers",
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    "judges": [
      "Judges Eagles and Greene concur."
    ],
    "parties": [
      "FOUR COUNTY ELECTRIC MEMBERSHIP CORPORATION v. HELEN A. POWERS, in her official capacity as Secretary of the North Carolina Department of Revenue"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nFour County is a nonprofit electric cooperative corporation organized pursuant to Chapter 117 of the North Carolina General Statutes. It also meets the requirements for tax exempt status under section 501(c)(12) of the Internal Revenue Code.\nEach month Four County sends bills to its customers (who are also considered to be members of the cooperative) for electricity furnished. From these amounts received, Four County, pursuant to its bylaws, allocates on its books and records part of each customer\u2019s payment as \u201cpatronage capital.\u201d Four County has stipulated that the term \u201cpatronage capital\u201d means \u201ctotal revenues received by Four County Electric Membership Corporation from monthly billings to its members for electrical service rendered less related operating expenses arising from furnishing such electricity, including interest payments upon any debt capital used in providing electric service as well as depreciation upon operating facilities and equipment.\u201d The Taxpayer has also stipulated that patronage capital is determined after the close of its fiscal year, and that at the time of rendering bills, it cannot determine the amount of a bill which will go to patronage capital.\nFour County\u2019s bylaws provide that the Board of Directors has, at its discretion, upon the death of a patron, the power to retire that patron\u2019s capital, \u201cPROVIDED, however, that the financial condition of the Cooperative will not be impaired thereby.\u201d The Taxpayer addressed this issue in greater detail in its \u201cGeneral Policy No. 422,\u201d which states in part that the Cooperative does not\ncommit itself to retire all or any portion of a deceased member\u2019s capital credits, except upon determination by the Board of Directors, in each and every case, that the financial condition of the Cooperative will not thereby be impaired . . . ; nor shall the inauguration of this Policy in any way presume its permanent continuance, the Board of Directors, pursuant to its powers and responsibilities by law and the Bylaws prescribed, retaining the prerogative to rescind it altogether or to amend it on the basis of generally applicable principles at any time.\nAs to general retirement of patronage capital, Four County states in its notice of Capital Credit Assignments to its patrons that \u201c[t]he Cooperative is currently striving to make a general retirement of Capital Credits on a 20-year rotation basis as long as it is economically sound to do so.\u201d\nFour County contends on appeal that it should be allowed to exclude from its \u201cgross receipts\u201d that amount from each patron\u2019s monthly payment which it credits on its books to patronage capital. Taxpayer makes a \u201csubordinate alternative\u201d argument that it should at least be allowed to exclude from gross receipts the amount of patronage capital it actually returns to patrons.\nWe observe at the outset that the franchise tax is not an income tax, but rather is a tax imposed on corporations for the privilege of engaging in business in this state. G.S. sec. 105-114. This tax varies according to the nature, extent and magnitude of the business transacted in this state by a corporation. Telephone Co. v. Clayton, Comr. of Revenue, 266 N.C. 687, 147 S.E.2d 195 (1966). Our Supreme Court has also stated that it \u201cdepends upon the amount of business transacted by the corporation.\u201d Worth v. Railroad, 89 N.C. 301, 306 (1883).\nThis Court and our Supreme Court have analyzed the meaning of the term \u201cgross receipts\u201d for purposes of franchise taxation of telephone companies as governed by G.S. sec. 105-120. Telephone Co. v. Clayton, Comr. of Revenue, supra; In re Proposed Assessment of Carolina Telephone, 81 N.C. App. 240, 344 S.E.2d 46, disc. rev. denied, 318 N.C. 283, 347 S.E.2d 465 (1986). G.S. sec. 105-120 defines \u201cgross receipts\u201d for purposes of telephone company franchise taxes as \u201call rentals, other similar charges, and all tolls received from business.\u201d G.S. sec. 105-120(b). Unlike G.S. sec. 105-120, G.S. sec. 105-116, which governs franchise taxation of public service companies and is applicable to the instant case, does not contain descriptive language to aid in defining the term \u201cgross receipts.\u201d It states simply that the taxpayer is to make a quarterly report stating, in part, the \u201ctotal gross receipts . . . from such business.\u201d G.S. sec. 105-116(a)(l) and (2). G.S. sec. 105-116(b) does refer to certain gross receipts to be deducted from taxable total gross receipts. No mention is made of an offset for patronage capital. We also find no reference to such a deduction in the Chapter 117 of the General Statutes which governs electric membership corporations.\nTaxpayer\u2019s business is that of providing electric service to its patron customers. The monies generated by the monthly charges billed for electric service constitute its \u201cgross receipts\u201d and they are indicative of the amount of business transacted by Four County. The \u201cpatronage capital\u201d which Taxpayer wishes to exclude from its gross receipts is generated from monthly charges to customers.\n\u201cGross receipts\u201d is defined as \u201cthe total amount of money . . . received from selling property or from performing services.\u201d Black\u2019s law Dictionary 633 (5th ed. 1979) (citation omitted) (emphasis added). Important to this definition is the concept that it is the character of funds at the time of receipt that matters. Disbursements made subsequent to this taxable event from the total amount received do not diminish the amount of gross receipts. See New Cornelia Cooperative Mercantile Co. v. Arizona State Tax Com\u2019n., 23 Ariz. App. 324, 533 P.2d 84 (1975); Tyler Lumber Co. v. Logan, 293 Minn. 1, 195 N.W.2d 818 (1972).\nIn the case before us, Four County admits that at the time of billing, it cannot determine the amount it will ultimately allot to patronage capital. It is noteworthy that the monthly bills sent out by Four County simply state a total amount due for \u201celectric service.\u201d The determination of patronage capital is due in part to Taxpayer\u2019s analysis of events occurring later in its fiscal year. By its very nature, a gross receipt is determined at the time of receipt. Therefore, events which may occur after consummation of the sale of electricity are not relevant to determining the gross receipts figure. Id.\nIn concluding that amounts designated by Four County on its books as \u201cpatronage capital\u201d are part of gross receipts, we are guided by the reasoning of our Supreme Court in Realty Corp. v. Coble, Sec. of Revenue, 291 N.C. 608, 231 S.E.2d 656 (1977). In Realty Corp., the Court rejected the argument of the taxpayer (who elected to use the installment method of accounting) that it should be allowed to deduct future potential state and federal income tax liability from its franchise tax base under G.S. sec. 105-122(b). In so doing, the Court set out principles which are relevant here. First, even though a taxpayer may be using correct accounting practices, the statute itself must control the accounting methods to be used for computing the franchise tax base. Second, the Court found that the taxes the taxpayer wished to deduct were not deductible since they were not \u201cdefinite and accrued legal liabilities\u201d as required by applicable G.S. sec. 105-122. In the instant case, the applicable statute has no provision for deducting \u201cdefinite and accrued legal liabilities.\u201d We are therefore especially reluctant to allow Four County to deduct patronage capital when it is not under any pre-existing legal duty to return any set amount of funds to its patrons at the time it receives monthly payments from them. Although it claims that patronage capital is credited to the patron\u2019s account \u201cat the moment of receipt,\u201d Taxpayer has stipulated that at the time of rendering a bill, it cannot determine what percentage of the bill will ultimately go to patronage capital. It is also important that, as quoted above, Four County\u2019s own bylaws give it wide discretion in returning patronage capital. Therefore, pursuant to Realty Corp., we must conclude that the mere fact of a bookkeeping entry in Taxpayer\u2019s records is insufficient under these facts to create a deduction from Taxpayer\u2019s franchise tax base.\nWe are also unpersuaded by two consolidated cases from Alabama which Four County cites to us, Alabama v. Pea River Electric Cooperative, 434 So.2d 785 (Ala. Civ. App. 1983), cert. denied, No. 82-693 (Ala. filed 1 July 1983). The Alabama Court appeared to be influenced by various past rulings of the Alabama Commissioner of Revenue which indicated that capital received by a cooperative in excess of its operating costs was not subject to the gross receipts tax. Id. We are unaware of revenue rulings to that effect in North Carolina. We also note that the Pea River decision was rejected by the Oregon Supreme Court in Lane Electric Cooperative v. Department of Revenue, 307 Or. 226, 765 P.2d 1237 (1988). That court, in finding the taxpayer\u2019s reliance on Pea River misplaced, stated in a footnote that \u201c[t]he decision in [Pea River] apparently is based on established policy in Alabama. No such policy exists in Oregon.\u201d 307 Or. at 203, 765 P.2d at 1239, n.2. We also know of no such policy in North Carolina. Indeed, in North Carolina, the construction of a revenue act by the Secretary of Revenue, although not binding, will be given due consideration by the court. Realty Corp., supra. In the instant case the Secretary determined that patronage capital is not excludable from \u201cgross receipts\u201d and we must accord this determination due consideration. Second, the Alabama Court in Pea River also relied on a state statute which mandates that Alabama cooperatives shall distribute to members revenues in excess of amounts needed for operation and maintenance of the cooperative. North Carolina has no such statute and, in our view, Four County\u2019s bylaws afford it too much discretion to create a pre-existing legal obligation. Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692 (1974); MCB Limited v. McGowan, 86 N.C. App. 607, 359 S.E.2d 50 (1987).\nWe turn now to Taxpayer\u2019s alternative argument that it should be allowed to deduct patronage capital actually repaid from its franchise tax base. Consistent with our previous analysis, we view this repayment as merely a disbursement from original gross receipts received from the sale of electricity which does not alter the amount of gross receipts. We therefore reject Taxpayer\u2019s alternative argument.\nFinally, we address Four County\u2019s contention that denying it a deduction for patronage capital while investor-owned utilities do not pay franchise taxes on funds generated by the sale of stocks or bonds is a violation of equal protection of the laws under the Fourteenth Amendment to the United States Constitution, of Article I, Section 19 of the North Carolina Constitution, and also a violation of Article V, Sections 2 and 3 of the North Carolina Constitution, which require that taxes be levied by \u201cuniform rule.\u201d\nIn Realty Corp., supra, at 617, 231 S.E.2d at 662, our Supreme Court stated the following:\n\u201c \u2018[T]he requirements of \u201cuniformity,\u201d \u201cequal protection,\u201d and \u201cdue process,\u201d are, for all practical purposes, the same under both the State and Federal Constitutions.\u2019 \u201d A tax is uniform when it imposes an equal tax burden upon all members of a particular class. Hajoca Corp. v. Clayton, Comr. of Revenue, [277 N.C. 560, 568, 178 S.E.2d 481, 486 (1971)]. As long as a classification is not arbitrary or capricious, but rather founded upon a rational basis, the distinction will be upheld by the Court. (Citations omitted.)\nWe hold that the application of G.S. sec. 105-116 to Taxpayer does not violate its constitutional rights. We find Four County\u2019s comparison of the tax treatment of the sale of stocks and bonds by investor-owned utilities to be faulty. The issue is whether G.S. sec. 105-116 taxes billings for electrical service rendered by cooperatives in the same manner as billings for service rendered by investor-owned utilities. Each must pay franchise taxes upon its gross receipts and neither can deduct amounts it may record as patronage capital. Also, neither pays franchise tax on stocks or bonds it may issue.\nThe tax treatment of the sale of stocks and bonds is separate and distinct from that of taxing the act of furnishing electricity and not linked by statute. Taxpayer\u2019s complaint is that it has formed itself under section 501(c)(12) of the federal Internal Revenue Code, and therefore is apparently restricted from selling stocks and bonds. This federal provision is, however, unrelated to our franchise tax statute.\nWe again find that principles of Realty Corp., supra, are instructive. The taxpayer in Realty Corp. alleged denial of equal protection because as a \u201ccash basis\u201d taxpayer it could not claim certain deductions available to an \u201caccrual basis\u201d taxpayer. In finding no equal protection violation, the Court observed that plaintiff had \u201cvoluntarily elected to place itself in the classification about which it now complains; to wit, a cash-basis taxpayer reporting its income under the installment method.\u201d 291 N.C. at 618, 231 S.E.2d at 662. Similarly, in the instant case, Four County has elected to operate as a federal tax-exempt entity which cannot issue stocks and bonds. As in Realty Corp., supra, this election does not, however, create a viable equal protection issue for Taxpayer.\nDifferent treatment under the franchise statute of patronage capital and funds received from the sale of stocks and bonds is based on a rational reason. Snyder v. Maxwell, Comr. of Revenue, 217 N.C. 617, 9 S.E.2d 19 (1940). Unlike funds received from the sale of stocks and bonds, monies ultimately termed patronage capital by Four County are merely part of the gross receipts received for the sale of electricity when billings are rendered. Patronage capital ultimately owed to Taxpayer\u2019s members is at the time of receipt uncertain as to both amount and fact of liability. Differing treatment for such unrelated activities is certainly rational.\nAffirmed.\nJudges Eagles and Greene concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Crisp, Davis, Schwentker, Page & Currin, by William T. Crisp, II and Cynthia M. Currin, for plaintiff-appellant.",
      "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General George W. Boylan, for the defendant-appellee Secretary of Revenue."
    ],
    "corrections": "",
    "head_matter": "FOUR COUNTY ELECTRIC MEMBERSHIP CORPORATION v. HELEN A. POWERS, in her official capacity as Secretary of the North Carolina Department of Revenue\nNo. 8910SC34\n(Filed 5 December 1989)\n1. Taxation \u00a7 26.1 (NCI3d)\u2014 electric utility cooperative \u2014 franchise tax \u2014 exclusion of patronage capital\nThe superior court correctly granted summary judgment for defendant Secretary of Revenue in an action for a refund of certain franchise taxes where plaintiff is an electric membership corporation; plaintiff sends bills to its customers for electricity furnished each month; plaintiff allocates part of each payment as patronage capital; patronage capital means total revenues received from monthly billings for electrical service rendered less related operating expenses arising from furnishing such electricity; patronage capital is determined after the close of the fiscal year; and a franchise tax is imposed on the total gross receipts of all corporations engaged in the business of furnishing electricity by N.C.G.S. \u00a7 105-116. Although plaintiff contended that patronage capital should not be included as gross receipts, by its very nature a gross receipt is determined at the time of receipt; therefore, events which may occur after consummation of the sale of electricity are not relevant to determining the gross receipt figures. Plaintiff admits that at the time of billing it cannot determine the amount it will ultimately allot to patronage capital, and the applicable statute has no provision for deducting definite but not accrued legal liabilities. The mere fact of a bookkeeping entry in taxpayer\u2019s records is insufficient to create a deduction from taxpayer\u2019s franchise tax base.\nAm Jur 2d, State and Local Taxation \u00a7\u00a7 270, 438.\n2. Constitutional Law \u00a7 20.1 (NCI3d)\u2014 electric membership corporation \u2014 no deduction for patronage capital \u2014 no violation of equal protection\nThe denial of a franchise tax deduction for patronage capital to an electric membership corporation was not a violation of equal protection under the Fourteenth Amendment to the United States Constitution or Art. I, \u00a7 19, and Art. V, \u00a7\u00a7 2 and 3 of the North Carolina Constitution in that investor owned utilities do not pay franchise taxes on funds generated by the sale of stocks or bonds. The issue is whether N.C.G.S. \u00a7 105-116 taxes billings for electrical service rendered by cooperatives in the same manner as billings for service rendered by investor owned utilities; each must pay franchise taxes upon its gross receipts, neither can deduct amounts it may record as patronage capital, and neither pays franchise tax on stocks or bonds it may issue. The tax treatment of the sale of stocks and bonds is separate and distinct from that of taxing the act of furnishing electricity and not linked by statute.\nAm Jur 2d, Constitutional Law \u00a7 780; State and Local Taxation \u00a7 155.\nAPPEAL by plaintiff from order signed 26 August 1988 by Judge Coy E. Brewer, Jr. in WAKE County Superior Court. Heard in the Court of Appeals 30 August 1989.\nPlaintiff-taxpayer, Four County Electric Membership Corporation (\u201cFour County\u201d or \u201cTaxpayer\u201d), seeks a refund of certain franchise taxes it has paid on the grounds that monies it received as patronage capital should not be included as \u201cgross receipts\u201d for purposes of G.S. sec. 105-116. This statute imposes a franchise tax on the \u201ctotal gross receipts\u201d of all corporations, profit and nonprofit, which are engaged in the business of furnishing electricity. Plaintiff raised this issue in a hearing before the Secretary of Revenue on 10 July 1986. The Secretary entered a final decision on 20 January 1987 in which she made findings of fact and concluded as a matter of law that there is \u201cno deduction or exemption from the gross receipts tax levied in G.S. sec. 105-116 for patronage capital or operating credits.\u201d The Secretary therefore upheld the proposed assessment in question and denied plaintiff\u2019s claim for refund.\nPlaintiff paid the amount assessed under protest and instituted this action in superior court against the Secretary for a refund pursuant to G.S. sec. 105-267. Upon cross-motions for summary judgment which were both supported by affidavits, exhibits, briefs and arguments of counsel, the trial court held that there was no genuine issue as to any material fact and that the defendant Secretary of Revenue was entitled to judgment as a matter of law. Plaintiff appealed the order to this Court in apt time.\nCrisp, Davis, Schwentker, Page & Currin, by William T. Crisp, II and Cynthia M. Currin, for plaintiff-appellant.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General George W. Boylan, for the defendant-appellee Secretary of Revenue."
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