2014-0117, Marco Petroleum Industries, Inc. v. Commissioner, New Hampshire Department of Safety

fuels under RSA 259:21 (2014); (2) it did no t “sell” motor fuel under RSA required to pay the road toll because: (1) it was not a “distributor” of motor Marco argues that DOS and the trial court erred by finding that Marco w as to pay the New Hampshire road toll on fuel imported into the state. On appeal, the State $155,070.71, including interest and penalties, due to Marco’s failure (DOS). Following an administrative hearin g, DOS de termined that Marco owed respondent, the Commissioner of the Ne w Hampshire Department of Safety appeals an order of the Superior Court (McHugh, J.) affirming a decision of the BASSETT, J. The petitioner, Marco Petroleum Industries, Inc. (Marco),

general, on the brief and orally), for the respondent. Joseph A. Foster, attorney general (John J. Conforti, assistant attorney

the brief, and Jason R.L. Major orally), for the p etitioner. Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on

No. 2014 - 117 Rockingham

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

“The base jurisdiction then forwards the appropriate tax amounts to each jurisdiction’ in which it registers as a licensee under [the] IFTA.” Id. at 1 p. 2 263. interstate motor carrier pays all its state fuel taxes quarterly to the ‘base as they pertain to multi - state carriers.” Id. at 1262 - 63. “Under [the] IFTA, an and [the] IFTA permits the uniform administration and collection o f those taxes impose a tax; “[r]ather, its member jurisdictions impo se the motor fuel taxes, 388 F.3d 1261, 1262 (9th Cir. 2004) (quotation s omitted). The IFTA does not coll ection of motor fuel use tax.” May Truckin g Co. v. Oregon Dept. of Transp., agreement that is intended to encourage cooperation in the administration and Supp. 2d 892, 894 (M.D. Tenn. 2013). The IFTA is a “multi - jurisdictional Agreement (IFTA). See Illinois Cent. R.R. v. Tennessee Dept. of Revenue, 969 F. Hampshire and Massachusetts, are parties to the I nternational Fuel Tax A ll of the states in the contiguous United States, including New

v. Secretary of Admin., 613 N.E. p. 2 2d 95, 98 (Mass. 1993). Massachusetts . . . to support the State’s highway system.” Amer ican Trucking tax is a fee paid by “motor carriers operating their motor vehicles in & Supp. 2014). As with the New Hampshire road toll, the Massachusetts fuel t he purchaser at the time the fuel is sold. See Mass. Gen. Laws ch. 64A (2011 Similarly, Massachusetts imposes a per gallon “fuel tax” that is paid by

distributor of motor fuels.” RSA p. 2 260:36 (2014). unless the person is a holder of a valid license to engage in business as a person to sell or use motor fuel upon which the road toll . . . has not been paid, tear.” Id. (quotation omitted). New Hampshire law makes it unlawful “for any charge for subjecting roads to a given amount of destructive use or wear and 473 (2004) (quotation omitted). “In other words, the road toll fee constitutes a highways.” Rymes Heating Oils v. Comm’r, N.H. Dep’t of Safety, 151 N.H. 472, RSA 259:21. The road toll is “imposed as a recompense for the use of the

aircraft shall not be considered importing. in the fuel supply tank attached t o the engine of a vehicle or motor fuel within this state . . . . Bringing motor fuel into the state refines, distills, prepares, blends, manufactures, or compounds be imported motor fuel into the state, and also any person who a ny person, wherever resident or located, who imports or causes to

sold by distribu tors thereof.” RSA p. 2 260:32. A “distributor” is defined as: 260:30 (2014), imposes a road toll “upon the sale of each gallon of motor fuel sale of motor fuels. The New Hampshire Motor Vehicle Road Toll Law, see RSA context, an overview of the relevant fees assessed by government entities on the Before addressing the substance of Marco’s claims, we provide, for

Massachusetts fuel tax. We affirm. pay the New Hampshire road toll because it had already paid the p. 2 260: p. 3 32 (2014) (amended 2014); and (3) it would be unfair to requ ire Marco to 3

of motor fuels under RSA 259:21 and 260: p. 3 32, and that DOS should recover the On appeal, Marco argues that Irving, not Marco, acted as a “distributor”

appeal followed. been paid, and it transported the fuel across the State’s highways.” This DOS, concluding that “Marco did purchase fuel on which a road toll had not imported,” the fuel into New Hampshire. The court agreed with the ruling by distributor because, under RSA 259:21, Marco “im port[ed] or cause [d] to be transferred the fuel to Marston in Massachusetts, and that M arco was the the New Hampshire road toll. In response, DOS argued that Irving merely Hampshire, Irving, rather than Marco, acted as the distributor for purposes of that, because Irving hired Marston to deliver the fuel to Marco in New The parties filed cross - motions for summary judgment. Marco argued

to the superior court. distributor of motor fuel and that the assessment was proper. Marco appealed Hampshire. DOS rejected Marco’s argument, finding that Marco acted as a Distributor license or IF TA license and unlawfully imported motor fuel into New asserted that Marco acted as a “distributor” without a current Motor Fuel motor fuels but, rather, the end purchaser. The DOS r oad t oll a udit m anager liable for the New Hampshire road toll because it was not a “distribut or” of DOS held a hearing in September 2012. Marco argued that it was not

challenged the audit by DOS and requested an administrative hearing. from Irving. DOS calculated that Marco owed the State $155, 070.71. Marco requ ired [New Hampshire] road toll” on the 60 p. 3 3,138 gallons of fuel purchased Motor Fuel Distributor license and therefore failed to report and pay the concluded that Marco “imported motor fuel into [New Hampshire] without a In 2012, DOS audit ed Marco’s “Motor Fuel Distributor” account. DOS

Irving, and Irving then forwarded the funds to Massachusetts. connection with each purchase, Marco paid the Massachusetts fuel tax to for the date of sale, amount of fuel purcha sed, and the invoice amount. Also in those bills. The bill of lading issued by Irving for each sale was identical except New Hampshire. Marston invoiced Marco for the deliveries, and Marco paid Marston transported the f uel from Revere to Marco’s facility in North Hampton, and Marco share a business address in North Hampton, New Hampshire. Massachusetts, into trucks operated by P.S. Marston, LLC (Marston). Marston purchase included the transfer of fuel by Irving, at its facility located in Revere, for the purchase of diesel fuel. T hese purchases totaled 60 p. 3 3,138 gallons. Each 2008 and March 2011, Marco contracted with Irving Oil Terminals, Inc. (Irving) The material facts are undisputed. On multiple occasions between June

different states in which it operates.” Id. prevents a motor carrier from having to make multiple tax payments to the individual state in which the motor carrier operates.” Id. “That arrangement p. 4 4

b e imported motor fuel into the s tate. . . .” RSA 259:21. Accordingly, if Marco shall mean any person, wherever resident or located, who imports or causes to defined in RSA 259:21. In relevant part, the statute states: “‘D istributor, ’. . . DOS, it was Irving — rather than Marco — that acted as a “distributor” as Marco first argues that DOS erred because, contrary to the finding by

omitted). policy sought to be advanced by the entire statutory scheme.” Id. (quotation a nd therefore better able to understand the statutory language in light of the statute.” Id. “In doing so, we are better able to discern the legislature’s intent, the words used and consider them not in isolation but in context of the overall (quotation omitted). “We begin by reviewing the plain and ordinary meaning of statute considered as a whole.” Rymes Heating Oils, 151 N. H. at p. 4 474 final arbiter of the intent of the legislature as expressed in the words of a Vehicle Road Toll Law. “In matters of statutory interpretation, this court is the T his appeal requires interpretation of certain provisions of the Motor

the facts de novo. Id. legal import of those facts.” We review the trial court’s application of the law to found that “[t]he parties do not dispute the material facts; they dispute the will affirm the grant of summary judgment. Id. In this case, the superior court fact and if the moving party is entitled to judgment as a matter of law, then we (201 p. 4 4). If our review of that evidence discloses no genuine issue of material matter of law. Bovaird v. N. H. Dep ’t of Ad min. Servs., 166 N.H. 755, 758 exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, we conside r the evidence in the light most favorable to each party in In reviewing the trial court’s ruling on cross - motions for summary

reallocated to New Hampshire in accordance with the IFTA. Marco — which Irving then paid to Massachusetts — could have been paid, and, if Marco had the proper distributor licenses, the fuel tax paid by counters that it is undisputed that the New Hampshire road toll has not been that DOS should seek to recover the road toll from Massachusetts. DOS it has alrea dy paid the Massachusetts fuel tax on the same gallons of fuel, and to require it to pay the New Hampshire road toll when there is no dispute that by a distributor.” RSA 2 p. 5 59:95 (201 p. 4 4). Finally, Marco contends that it is unfair maintains that the statutory definition of “sale” includes “any use of motor fuel because Marco raises the issue for the first time on appeal. Alternat ively, DOS RSA 260:32. DOS responds that Marco failed to preserve this argument motor fuel by Marco, which is required to trigger payment of the road toll under that, because it used the fuel only in its own vehicle s, there was no “sale” of and is responsible for paying the New Hampshire road toll. Marco next argues fuel to be imported into New Hampshire and, as such, acted as a “distributor” New Hampshire road toll from Irving. DOS counters that Marco caused the 5

defined by RSA 2 p. 5 59:21. motor fuel into New Hampshire, and that, Marco acted as a “distributor” as both DOS and the trial court — that Marco imported or caused to be imported are not persuaded. To th e contrary, w e agree with the determination made by Irving “import[ed] or cause[d] to be imported” the fuel into New Hampshire. We Irving had title to the fuel when it entered New Hampshire, and, therefore, that bill of lad ing created a destination contract, which, standing alone, means that Marco ’s argument is, in essence, that its designation as “consignee” on a

agreement to deliver the f uel to Marco in New Hampshire. contain any documentation demonstrating that Irving and Marston had an Marco, in fact, paid those invoices, rather than Irving. T he record does not Marston bill ed Marco for the delivery. Marco does not dispute the fact that transported the fuel to Marco. After Marston delivered the fuel to Marco, undisputed that Ma rco was t he end user of the fuel, and that Marston “import[ed] or cause[d] to be imported” the fuel into New Hampshire. It is undisputed evidence in the record, supports the conclusion that Marco The sequence of events relating to each sale, together with the

behalf of Irving, and DOS argues that Marco hired Ma rston to deliver the fuel. distributor in this instance. Instead, Marco argues that Marston was acting on a party to this action, and n either party argue s that Marston acted as the — the entit y that physically transported the fuel into New Hampshire — is not imported” the fuel into New Hampshire. Id. Additionally, we note that Marston issues before us, which is whether Marco or Irving “import[ed] or cause[d] to be when title to the fuel passed to Marco has little, if any, relevance to the specific state line into New Hampshire. See RSA 2 p. 5 59:21. We agree with DOS that, of which entity had title at the time when the fuel was transported across the The statutory definition of “distributor” does not require a determination

DOS on this latter point. Marco that “caused the import” of the fuel into New Hampshire. We agree with that, regardless of when and where title passed from Irving to Marco, it was Marco received title to the fuel in Massachusetts. However, DOS also argues Hampshire, and, therefore, Irving was the distributor. DOS counters that destination contract, Irving held title to the fuel when it entered New promises delivery”). Marco asserts that, because the bill of lading was a the “person named in a bill of lading to which or to whose o rder the bil l Hampshire. See RSA 382 - A:7 - 102(a)(3) (Supp. 2014) (defining “consignee” as lading created a destination contract requiring delivery to Marco in New Marco contends that its designation as the “consignee” in the bill of

acted as a “distributor” and was required to pay the New Hampshire road toll. “import [ed] or cause [d] to be imported” fuel into New Hampshire, then Marco p. 6 6

“not hold a curr ent Motor Fuel Distributor license or a current international There is also no dispute that, at the time of the purchases, Marco did

Marco imported into New Hampshire. undisputed that the New Hampshire road toll has not been paid on the fuel Marco to operate witho ut a license — provided that it pays the road toll — it is RSA 2 p. 6 60:36. Although, by its terms, RSA 260:32 does not make it unlawful for a holder of a valid license to engage in business as a distributor of motor fuels.” motor fuel upon which the road toll . . . has not been paid, unless the person is Additionally, in New Hampshire, it is unlawful “for any person to sell or use tax amounts to each individual state in which the motor carrier operates.” Id. Co., 388 F.3d at 1263. “The base jurisdiction then forwards the appropriate jurisdiction’ in which it registers as a licensee under the IFTA.” May Trucking An IFTA licensee “pays all its state fuel taxes quarterly to the ‘base

IFTA — to prevent just this type of double payment. because Marco did not avail itself of the interstate mechanism in place — the paid the Massachusetts fuel tax. This arguably unfair situation arose only unfair” to require it to pay the New Hampshire road toll when it has already We also reject Marco’s argument that it is “grossly inequitable and

of the fuel falls squarely within the definition of “sale” in RSA 259:95. elsewhere than on the roads of New Hampshire, we conclude that Marco’s use fuel for its own internal use,” and it has never argued the fuel was used “sale” is logical. Here, becau se Marco has acknowledged that it purchased “th e 473 (quotation omitted), including the “use of motor fuel” in the definition of amount of destructive use or wear and tear,” Rymes Heating Oils, 151 N.H. at Moreover, because the road toll is “a charge for subjecting roads to a given or consumption of motor fuels.” RSA 2 p. 6 60:31 (2014) (emphasis added). Road Toll Law: “to secure the motor fuel road toll . . . with respect to the sale definition is entirely consistent with the stated purpose of the Motor Vehicle vehicles on the ways.” RSA 259:95 (2014) (emphasis added). This expansive of ownership and any use of motor fuel by a distributor for the propulsion of term “s ale” is defined in the Motor Vehicle Road Toll Law to mean “any transfer from the purchaser and remitted t o the state . . . .” Id. (emphas i s added). The sold by distributors thereof. The road toll shall be collected by the distributor with DOS. The road toll is imposed “upon the sale of each gallon of motor fuel Assuming, without deciding, that this argument is preserved, we agree

involving a third party. as used in the Motor Vehicle Road Toll Law does not require a transaction argues that, even if we assume that this argument is preserved, the term “sale” counters that Marco failed to preserve this issue for appeal. Alternatively, DOS the motor vehicle fuel but was “merely the end user.” See RSA 2 p. 6 60:32. DOS was not required to pay the New Hampshire road toll because it did not “sell” Marco next argues that, regardless of whether it acted as a distributor, it p. 7 7

fact, there has been such a sale. construe RSA 260:32 to mean that the road toll is to be collecte d from the purchaser only if, in purchaser,” because a user of fuel such as Marco qualifies as a distributor under RSA 259:21, we Although RSA 260:32 states that the road toll shall be collected by the distributor “from the 

DALIANIS, C.J.