Boyd Louisiana Racing, Inc. v. Cynthia Bridges, Secretary, Department of Revenue and Taxation, State of Louisiana

STATE OF LOUISIANA

COURT OF APPEAL

j FIRST CIRCUIT

2018 CA 1309

BOYD LOUISIANA RACING, INC.
VERSUS
CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE & TAXATION,
STATE OF LOUISIANA

Consolidated With

2018 CA 1310

BOYD GAMING CORPORATION
VERSUS
CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE & TAXATION,
STATE OF LOUISIANA

Consolidated With

2018 CA 1311

BOYD KENNER, INC.
VERSUS
CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE & TAXATION,
STATE OF LOUISIANA

Judgment Rendered: '
JAN 0 8 202Q

On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. C539824 c/ w C548765 c/ w C548766

Honorable Todd W. Hernandez, Judge Presiding

Russell J. Stutes, Jr. Counsel for Defendant/ Appellant
Shelley Bouillion Cynthia Bridges, Secretary of the Department
J. Michael Veron of Revenue and Taxation, State of Louisiana
Lake Charles, Louisiana

Linda S. Akchin Counsel for Plaintiffs/ Appellees
Jaye A. Calhoun Boyd Louisiana Racing Inc., Boyd Gaming
William J. Kolarik, II Corporation, and Boyd Kenner, Inc.
Baton Rouge, Louisiana

BEFORE- WHIP' , C. J., MCCLENDON, AND HIGGINBOTHAM, JJ.

qcyu ch

McCLENDON, 7.

In these consolidated tax cases, the defendant appeals a district court's

judgment that granted a partial summary judgment in favor of the plaintiffs. For the

following reasons, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Boyd Gaming Corporation ( Boyd Gaming) is engaged in the gaming industry,

owning and operating through its numerous subsidiaries and affiliate casinos and horse-

racing facilities throughout the nation. Boyd Gaming is domiciled in Nevada. Boyd

Gaming directly owns two Louisiana subsidiaries, Boyd Kenner, Inc. ( Boyd Kenner) and

Boyd Louisiana Racing, Inc. ( Boyd Louisiana Racing). Boyd Kenner is a partner in

Treasure Chest, LLC, a casino in Kenner, Louisiana. Boyd Louisiana Racing owns Boyd' s

Racing, LLC, which owns and operates Delta Downs, a pari- mutuel racetrack and casino

in Vinton, Louisiana.

For the tax years 2002, 2003, and 2004 ( the audit period), each of the Boyd

entities reported and paid income and franchise taxes as reflected on their returns.

Boyd Kenner and Boyd Louisiana Racing filed their state tax returns as Louisiana

entities, and Boyd Gaming filed its Louisiana tax returns as a nonresident.

In 2005 and 2006, the State of Louisiana, Department of Revenue and Taxation

the Department) issued a Notice of Proposed Tax Due to each of the plaintiffs, Boyd

Gaming, Boyd Louisiana Racing, and Boyd Kenner, following an income and franchise

tax audit for the audit period. The audits resulted in an upward adjustment of the

taxable capital base for each of the three entities and the assessment of additional

corporate franchise taxes, with interest, to their businesses. Originally, Boyd Gaming

paid a total of $ 373, 515. 00 in franchise taxes, Boyd Louisiana Racing paid a total of

331, 371. 00 in franchise taxes, and Boyd Kenner paid a total of $ 116, 076. 00 in

franchise taxes. Following the audits, the plaintiffs were assessed additional taxes and

interest, for the tax years 2002, 2003, and 2004, in the following amounts: Boyd

Gaming was assessed a total of $ 1, 082, 930. 63, Boyd Louisiana Racing was assessed a

total of $ 277, 033. 72, and Boyd Kenner was assessed a total of $ 244, 548. 66. The

plaintiffs paid to the Department the additional franchise taxes and interest, under

N

protest, and notified the Department that they would be seeking a refund of the

amounts paid.

Thereafter, each of the plaintiffs filed a petition for appeal in the district court

seeking a refund for the payment of the taxes paid under protest and asserting that the

Department erroneously determined that the additional franchise tax and interest were

due. After the matters were consolidated, the plaintiffs filed a motion for partial

summary judgment on the issue of liability. According to the plaintiffs, the

Department' s audit determination that they had underpaid Louisiana franchise taxes

was erroneous, in part, because the auditors' applications and interpretations of the

pertinent law and regulations were incorrect. Particularly, they asserted that the

auditors misapplied costs and values to taxable income, based on a misunderstanding

of the cash management system employed by the Boyd entities. The plaintiffs also

generally asserted that in assessing the taxes, the auditors ignored established

accounting principles, precedents, and the franchise tax law itself. In response, the

Department asserted, and continues to maintain on appeal, that genuine issues of

material fact remain that negate the grant of summary judgment and, further, that it

correctly applied the law in computing the additional corporate franchise taxes owed by

the plaintiffs.

After a hearing, the district court issued written reasons on October 1, 2014,

finding that there was no evidence of any disputed issues of material fact and that the

central dispute in the case involved the interpretation and application of the law. After

consideration of the applicable law, the district court granted the plaintiffs' motion for

partial summary judgment. Thereafter, the district court signed a judgment on

November 24, 2014, granting a partial summary judgment on the issue of liability in

favor of the plaintiffs. The Department appealed.

Subsequently, this court ex proprio motu examined the record and noted a

potential jurisdictional defect in the judgment. Following the submission of memoranda

and oral argument, we determined that the judgment did not contain sufficient decretal

language to constitute a final appealable judgment, declined to convert the invalid

appeal to a supervisory writ, dismissed the appeal, and remanded the matter for further

3

proceedings. See Boyd Louisiana Racing, Inc. v. Bridges, 15- 0393 ( La. App. 1 Cir

12/ 23/ 15) ( unpublished), 2015 WL 9435285.

After this court's decision, the plaintiffs filed a Motion for Entry of Judgment and
attached a proposed judgment. The district court signed the proposed judgment on

August 9, 2016, prior to the scheduled hearing on the motion, and mailed notice of the

judgment to the parties. The judgment granted the motion for partial summary

judgment on the issue of liability, as follows:

1. Because all management services were performed in its offices in
Nevada rather than in Louisiana, the Department of Revenue erred in
its auditor's adjustments with respect to the management fees
collected by Boyd Gaming Corporation.

2. Because Boyd Gaming used generally accepted " equity accounting"
principles to value its investment in subsidiaries, the adjustments to
surplus and undivided profits made by the Department of Revenue' s
auditor were not proper.

3. The participation of the Taxpayers in the common cash management
system used by Boyd Gaming Corporation and ail its affiliates,
including Boyd Kenner and Boyd Louisiana Racing, was not a
borrowing of capital by Boyd Gaming, Boyd Kenner or Boyd Louisiana
Racing, so the auditor' s adjustments to borrowed capital were

incorrect.

4. Partnership tax losses were properly included in Boyd Gaming' s volume
of business ratio for the Periods at Issue because the regulation
prohibiting that inclusion was not in effect during the years 2002- 2004.

The judgment also provided that the determination of the amount of refund to which

the plaintiffs were entitled would be the subject of future proceedings.

In the meantime, the Department opposed the motion for the entry of judgment.

On September 26, 2016, the district court held the hearing on the content of the

proposed judgment and took the matter under advisement. Thereafter, the

Department filed a suspensive appeal from the district court's August 9, 2016 judgment.

The district court signed the order for suspensive appeal on October 12, 2016, but the

signature was later scratched through with the following unsigned undated handwritten

note: " moot — this is an appeal of a judgment erroneously signed."

On November 2, 2016, the district court issued a Ruling on Plaintiffs' Motion for

Entry of Judgment, ordering that the plaintiffs' proposed judgment be filed and

tendered to the court for signature. The judgment was signed on November 18, 2016,

51

and was identical to the August 9, 2016 judgment. Also, as in the August 9, 2016

judgment, the November 18, 2016 judgment ordered that the judgment consituted a

final judgment pursuant to LSA- C. C. P. art. 19156 for purposes of an immediate appeal

because there was no just reason for delay.'

Thereafter, on April 4, 2017, "[ i] n an abundance of caution and due to the

unique circumstances present," the Department filed another motion for suspensive

appeal, seeking to appeal the August 9, 2016 and November 18, 2016 judgments. The

Department filed a memorandum in support of the motion for suspensive appeal, and

the plaintiffs filed a memorandum in opposition to the motion.

On January 9, 2018, the district court issued its Ruling on Motion for Suspensive

Appeal and denied the Department's appeal, stating that ' gall counsel of record were

informed that the earlier judgment was signed prematurely in error and that the motion

for suspensive appeal filed in response to the premature judgment would not be signed

by the Court and processed." The district court found that the Department's failure to

either file a timely new motion for appeal or to request that the original motion for

appeal be processed with a new corrected order " resulted in defendant' s failure to

timely file an appeal as to the Judgment that it was seeking to have overturned." The

order denying the motion for suspensive appeal was signed on January 29, 2018. The

Department then applied for supervisory writs with this court. On June 4, 2018, this

court granted the writ and reversed the district court's denial of the Department' s

suspensive appeal, with instructions to enter an order of appeal from the August 9,

2016 judgment and the November 18, 2016 judgment. See Boyd Louisiana Racing,

Inc. v. Bridges, 18- 0159 ( La. App. 1 Cir. 6/ 4/ 18) ( unpublished writ action).

Thereafter, the district court signed the order of appeal.

Now on appeal, the Department asserts that the district court erred in finding

that there were no genuine issues of material fact and that the plaintiffs were not liable

Although the district court designated the judgment as final, the court failed to provide reasons to
support this designation. When the propriety of the certification is not apparent and the district court has
failed to give reasons for its certification, we review the case de novo using the factors set forth in R.J.
Messinger, Inc. v. Rosenblum, 04- 1664 ( La. 3/ 2/ 05), 894 So. 2d 1113, 1122. After a review of the
record in light of the Messinger factors, we find that the district court did not err in designating the
judgment as final, and the district court's certification was appropriate.

5

for the additional franchise taxes at issue. Particularly, the Department contends that

the district court erred in holding that:

1. Management services were performed solely in Nevada, thereby resulting in

an improper audit adjustment regarding management fees collected by Boyd Gaming;

2. Audit adjustments to surplus and undivided profits were not proper because

the plaintiffs utilized equity accounting principles to value investments in subsidiaries;

3. Treatment of funds maintained by Boyd Gaming in the common cash

management system was improperly characterized as borrowed capital on audit; and

4. Partnership tax losses were properly included in Boyd Gaming' s volume of

business ratio.

SUMMARY JUDGMENT LAW AND STATUTORY INTERPRETATION

A motion for summary judgment is a procedural device used to avoid a full scale

trial when there is no genuine issue of material fact. GameStop, Inc. v. St. Mary

Parish Sales and Use Tax Dept., 14- 0878 ( La. App. 1 Cir. 3/ 19/ 15), 166 So. 3d 1090,

1094, writ denied, 15- 0783 ( La. 6/ 1/ 15), 171 So. 3d 929. A motion for summary

judgment is properly granted if the pleadings, depositions, answers to interrogatories,

and admissions, together with affidavits, if any, admitted for purposes of the motion for

summary judgment, show that there is no genuine issue of material fact, and that

mover is entitled to judgment as a matter of law. LSA- C. C. P, art. 9666( 2). 2

In determining whether summary judgment is appropriate, this court will review

the evidence de novo using the same criteria governing the district court's

determination of whether summary judgment is appropriate. Thompson v. Center

for Pediatric and Adolescent Medicine, L. L. C., 17- 1088 ( La. App. 1 Cir. 3/ 15/ 18),

244 So. 3d 441, 444, writ denied, 18- 0583 ( La. 6/ 1/ 18), 243 So. 3d 1062. When the

issue before the court on the motion for summary judgment is one on which the party

bringing the motion will bear the burden of proof at trial, the burden of showing there is

no genuine issue of material fact remains with the party bringing the motion. Green v.

Johnson, 16- 1525 ( La. App. 1 Cir. 1/ 10/ 18), 241 So. 3d 1188, 1191.

2 Louisiana Code of Civil Procedure Article 966 was amended and reenacted by La. Acts 2015, No. 422 §
1, eff. January 1, 2016. Therefore, we refer to the former version of the article in this opinion.

N.

A fact is material if it potentially insures or precludes recovery, affects a litigant's

ultimate success, or determines the legal outcome of the dispute. A genuine issue is

one as to which reasonable persons could disagree. If reasonable persons could reach

only one conclusion, there is no need for trial on that issue and summary judgment is

appropriate. Thompson, 244 So. 3d at 445.

The interpretation of a statute is a question of law that may be decided by

summary judgment. When addressing legal issues, the appellate court gives no special

weight to the findings of the district court, but exercises its constitutional duty to review

questions of law de novo, after which it renders judgment on the record. Bannister

Properties, Inc. v. State, 18- 0030 ( La. App. 1 Cir. 11/ 2/ 18), 265 So. 3d 778, 788, writ

denied, 19- 0025 ( La. 3/ 6/ 19), 266 So. 3d 902.

Moreover, taxing statutes are to be interpreted liberally in favor of the taxpayer

and against the taxing authority. If the statute can reasonably be interpreted more

than one way, the interpretation less onerous to the taxpayer is to be adopted.

Entergy Louisiana, Inc. v. Kennedy, 03- 0166 ( La. App. 1 Cir. 7/ 2/ 03), 859 So. 2d 74,

77- 78, writ denied, 03- 2201 ( La. 11/ 14/ 03), 858 So. 2d 430. Furthermore, words

defining a thing to be taxed should not be extended beyond their clear import. Cleco

Evangeline, LLC v. Louisiana Tax Com` n, 01- 2162 ( La. 4/ 3/ 02), 813 So. 2d 351,

355. Absent evidence to the contrary, the language of the statute itself must clearly

and unambiguously express the intent to apply to the property in question. Id.

DISCUSSION

Article VII, § 1 of the Louisiana Constitution vests the power of taxation in the

legislature. Pursuant to LSA- R. S. 47: 601A, the Louisiana corporate franchise tax is

imposed on "[ e] very domestic corporation and every foreign corporation, exercising its

charter, or qualified to do business or actually doing business in this state, or owning or

using any part or ail of its capital, plant, or any other property in this state." LSA- R. S.

47: 601. 3 Taxable capital is defined for purposes of corporate franchise tax in LSA- R. S.

47: 602A, which, during the audit period, provided:

3 Louisiana Revised Statutes 47: 601 provided during the relevant period, in part:

7

Taxable capital. Every corporation taxed under this Chapter shall
determine the amount of its issued and outstanding capital stock, surplus,
undivided profits and borrowed capital as the basis for computing the
franchise tax levied under this Chapter and determining the extent of the
use of its franchise in this state.

Further, Article VII, § 3( A) of the Louisiana Constitution mandates the legislature

to " provide a complete and adequate remedy for the prompt recovery of an illegal tax

paid by a taxpayer." To fulfill its obligation, the legislature has provided three remedies

to taxpayers: 1) the Claims Against the State procedure, LSA- R. S. 47: 1481- 1486; 2) the

Payment Under Protest procedure, LSA- R. S. 47: 1576; and, 3) the Overpayment Refund

procedure, LSA- R. S. 47: 1621- 1627. St. Martin v. State, 09- 0935 ( La. 12/ 1/ 09), 25

So. 3d 736, 738; Bannister, 265 So. 3d at 788. Relevant to our analysis is the Payment

Under Protest procedure.

A. Every domestic corporation and every foreign corporation, exercising its charter, or
qualified to do business or actually doing business in this state, or owning or using any
part or all of its capital, plant, or any other property in this state, subject to compliance
with all other provisions of law, except as otherwise provided for in this Chapter shall pay
an annual tax at the rate of $3. 00 for each $ 1, 000. 00, or major fraction thereof on the
amount of its capital stock, surplus, undivided profits, and borrowed capital, determined
as hereinafter provided; the minimum tax shall not be less than $ 10. 00 per year in any
case. The tax levied herein is due and payable on any one or all of the following
alternative incidents:

1) The qualification to carry on or do business in this state or the actual doing of
business within this state in a corporate form. The term " doing business" as used herein
shall mean and include each and every act, power, right, privilege, or immunity exercised
or enjoyed in this state, as an incident to or by virtue of the powers and privileges
acquired by the nature of such organizations, as well as, the buying, selling, or procuring
of services or property.

2) The exercising of a corporation' s charter or the continuance of its charter within this
state.

3) The owning or using any part or all of its capital, plant, or other property in this state
in a corporate capacity.

B. It is the purpose of this Section to require the payment of this tax to the state of
Louisiana by domestic corporations for the right granted by the laws of this state to exist
as such an organization, and by both domestic and foreign corporations for the

enjoyment, under the protection of the laws of this state, of the powers, rights,

privileges, and immunities derived by reason of the corporate form of existence and
operation. The tax hereby imposed shall be in addition to all other taxes levied by any
other statute.

C. ( 1) As used herein the term " domestic corporation" shall mean and include all
corporations, joint stock companies or associations, or other business organizations
organized under the laws of this state which have privileges, powers, rights, or

immunities not possessed by individuals or partnerships.

2) The term " foreign corporation" shall mean and include all such business organizations
as hereinbefore described in this Paragraph which are organized under the laws of any
other state, territory or district, or foreign country.

During the tax years at issue, the Payment Under Protest procedure provided

that if a taxpayer protested the payment of any tax or enforcement of any tax law, the

taxpayer had to pay the amount due and at that time give notice of intention to file suit

for recovery of the tax. The amount paid was then placed in escrow for thirty days. If

suit was filed within that period, the funds would be further held pending outcome of
the suit.4 Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So. 2d 697,

703- 04 ( La. 1993). Following the audits, and in accordance with LSA- R. S. 47: 1576, the

plaintiffs remitted the additional franchise taxes at issue, advised the Department that

the taxes were paid under protest, and timely filed a petition for appeal from the

decision of the Department for the franchise taxes paid under protest and for statutory
interest thereon.

In its assignments of error on appeal, the Department has identified four

disputed audit adjustments. We will address each one separately.

Management fees

The Department first asserts that Boyd Gaming mischaracterized management

fees received from Boyd Kenner and Boyd Louisiana Racing. The Department

acknowledged that it allowed the plaintiffs to exclude support fees from the numerator

of the franchise tax computation, taking the position that such fees constituted a

reimbursement for expenses, or recovery costs, paid on behalf of a subsidiary.

However, with regard to management fees, the Department maintains that such fees

were not " net sales made to customers," as asserted by the plaintiffs, or

reimbursements of expenses. The Department contends that the fees were actually

revenues transferred between a parent company and its subsidiaries, which must be

included in the volume of business ratio of Boyd Gaming under LSA- R. S. 47: 606A( 1)( k)

1.:

Therefore, we first consider LSA- R. S. 47: 606, regarding the allocation of taxable

capital, which provided, in relevant part:

A. General allocation formula.

4 If suit was not timely filed, courts have held the taxpayer no longer had a right to proceed in district
court for the recovery of taxes. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So. 2d
697, 704 ( La. 1993).

For the purpose of ascertaining the tax imposed in this Chapter, every
corporation subject to the tax is deemed to have employed in this state
the proportion of its entire issued and outstanding capital stock, surplus,
undivided profits, and borrowed capital, computed on the basis of the
ratio obtained by taking the arithmetical average of the following ratios:

1) The ratio that the net sales made to customers in the regular course
of business and other revenue attributable to Louisiana bears to the total
net sales made to customers in the regular course of business and other
revenue. For the purposes of this Subsection net sales and other revenues
attributable to Louisiana shall be determined as follows:

f) Revenues from services other than those described above shall be
attributed within and without Louisiana on the basis of the location at
which the services are rendered.

k) Revenues from a parent or subsidiary corporation shall be allocated as
provided in Subsection B of this Section.

2) The ratio that the value of all of the taxpayer's property and assets
situated or used in Louisiana bears to the value of all of its property and
assets wherever situated or used. In determining value, depreciation and
depletion reserves must be deducted from the book values of the
properties in question.

B. Allocation of intercompany items. For the purpose of allocation,
investments in,advances to, or revenues from a parent or subsidiary
corporation shall be allocated to Louisiana on the basis of the percentage
of capital employed in Louisiana for corporation franchise tax purposes by
the parent or subsidiary corporation.

Thus, according to LSA- R.S. 47: 606A, the ratios obtained are averaged and the

resulting percentage applied to the taxable capital to determine the amount thereof

employed in Louisiana. Kansas City Southern Ry. Co. v. Reily, 242 La. 235, 241,

135 So. 2d 915, 917 ( 1961).

In interpreting LSA- R. S. 47: 606, the plaintiffs argue that the management fees

collected by Boyd Gaming during the audit period were revenue under the terms of the

management agreements signed by the subsidiaries, produced by the sales of services.

Therefore, according to the plaintiffs, Boyd Gaming included all of the management

fees it received from its subsidiaries in its total revenue number, the denominator of the

ratio of volume of business portion of its franchise tax calculation. However, with

regard to the numerator, the plaintiffs contend that because the management services

10

were performed in Nevada, and not Louisiana, Boyd Gaming properly excluded the

management fees collected from its Louisiana affiliates in the numerator of its volume

of business ratio. 5 Therefore, the plaintiffs assert that the auditor for the Department

incorrectly added the management fees paid by the subsidiaries to the numerator of the

business volume ratio. Additionally, the plaintiffs argue that the Department failed to

apply the version of LSA- R. S. 47: 606A in effect for the audit period. 6

While the plaintiffs and the Department both agree that LSA- R. S. 47: 606B

governs the allocation of intercompany items, they disagree as to its interpretation.

The Department contends that LSA- R.S. 47: 606B is controlling, whereas the plaintiffs

maintain that LSA- R. S. 47: 606B and its regulation directed them back to LSA- R. S.

47: 606A. Thus, we look to the accompanying regulation to LSA- R. S. 47: 606B to assist

us in ascertaining the statute' s proper interpretation.

Pursuant to its authority to make rules,' the Department promulgated Rule 6066,

which provided, in relevant part:

Without regard to the legal or commercial domicile of a corporation
subject to the tax imposed by this Chapter, and without regard to the
business situs of investments in or advances to a subsidiary or parent
corporation by a corporation subject to the tax imposed by this Chapter,
all such investments in, advances to, and revenue from such parent or
subsidiary shall be allocated to Louisiana on the basis of the
percentage of capital employed in Louisiana by the parent or
subsidiary corporation for franchise tax purposes. The
corporation franchise tax ratio of the parent or subsidiary shall
be the measure of the extent to which the investment in,
advances to, and revenues from the parent or subsidiary are
attributable to Louisiana for purposes of determining the revenue and
property ratios to be used in allocating the total taxable base of any
corporation subject to the tax imposed by this Chapter to Louisiana.

For purposes of this subsection, accounts receivable which may be
considered to be advances resulting from normal trading between the
companies in the regular course of business and the sales of merchandise,

5 Although the plaintiffs contend that the Department's auditor incorrectly characterized support fees as
pure recovery costs", rather than " revenues", and erroneously removed those fees from the
denominator of Boyd Gaming' s business volume ratio, we note that they neither appealed nor answered
the appeal on this issue, and the issue of support fees is therefore not before us.

6 Given our analysis and holding herein, we need not address the argument of the plaintiffs as to this
issue.

We note that La. Acts 2003, No. 39 § 1, eff. May 23, 2003, revised the rule- making authority of the
secretary of the Department, found in LSA- R. S. 47: 1511, to require compliance with the Administrative
Procedure Act. The revision also reiterated that the rules and regulations promulgated would have the
full force and effect of law.

11

products, or services in such transactions shall not be included in
advances to or revenue from a parent or subsidiary under this provision,
but shall be allocated and attributed as provided in R. S. 47: 606A and the
regulations issued thereunder.

Emphasis added).

The plaintiffs contend that Boyd Gaming received management fees from the

sales of services in the regular course of business between the companies and,

therefore, such revenue was not to be included in revenue from a parent or subsidiary

under this regulation, but rather was allocated as provided in LSA- R. S. 47: 606A. As

directed by the last paragraph of the regulation to LSA- R. S. 47: 606B, the plaintiffs

submit that they properly looked to Rule 606A( 1)( e), which provided:

1) Net sales and other revenue

e) Revenue from services other than from transportation

Revenue derived from services other than from transportation shall
be attributed to the state in which the services are rendered. In the case
of services in which property is not a material revenue- producing factor,
the services shall be presumed to have been performed in the state in
which the personnel engaged in rendering the services are located.[$]

However, the plaintiffs' reliance on this subsection of the regulation is misplaced. Also

part of the regulation to LSA- R. S. 47: 606A is subsection 0), the more specific regulation

regarding revenue from a parent or subsidiary corporation, which referred the taxpayer

back to LSA- R. S. 47: 606B. Subsection 0) provided:

0) Revenue from a parent or subsidiary corporation

Revenue from a parent or subsidiary corporation shall be allocated
as provided in R. S. 47: 606B and the regulations issued thereunder.

Accordingly, we find LSA- R. S. 47: 6066 and the regulations promulgated thereunder

applicable to the issue before us.9

8 Subsection ( e) also provided:

In any case in which it can be shown that charges for services constitute a pure
recovery of the cost of performing the services and do not include a reasonable rate of
profit, amounts received in reimbursement of such costs shall not be construed to be
revenues received and shall be omitted from both the numerator and denominator of the
attribution ratio.

9 We note that it is well- settled that when two statutes apply to the same situation, the specific prevails
over the general. Silver Dollar Liquor, Inc. v. Red River Parish Police Jury, 10- 2776 ( La. 9/ 7/ 11),
74 So. 3d 641, 648; Burge v. State, 10- 2229 ( La. 2/ 11/ 11), 54 So. 3d 1110, 1113.

12

In light of the above, we now review the evidence submitted in support of and in

opposition to the motion for partial summary judgment as to the issue of management

fees. In support of their motion, the plaintiffs presented the affidavit of David Krasn,

the vice- president of corporate tax at Boyd Gaming, wherein he attested that Boyd

Gaming collected management fees and support fees as revenue from its subsidiaries

under the terms of the management agreements. Further, he stated that the fees were

basically revenue from normal trading between Boyd Gaming and its subsidiaries that
were produced by the sales of services to the subsidiaries. Pursuant to the

management agreement, management services included supervision and direction in

the management of the local project, establishing and maintaining internal controls,

promotion and sales programs, comprehensive marketing efforts, as well as other

services. The fee for such management services was a percentage of the affiliate' s

EBITDA ( earnings before interest, taxes, depreciation, and amortization) calculated on

an annual basis.

Mr. Krasn also stated that in its franchise tax return, Boyd Gaming included all of

the management fees collected in its total revenue number, being the denominator of

the ratio of volume of business portion of its franchise tax calculation. According to Mr.

Krasn, because the management services provided by Boyd Gaming were performed

in Nevada and not Louisiana, Boyd Gaming did not include the management fees

collected from its Louisiana affiliates in the numerator of the ratio of volume of

business.

However, in opposition to the motion for summary judgment, the Department

has asserted that the district court erred in determining that the management services

were all performed in Nevada. The Department offered the deposition of Mr. Krasn,

who testified that on occasion Boyd Gaming employees would perform services in

Louisiana for the subsidiary.

A review of Mr. Krasn' s deposition shows that the primary sources of operating

capital for Boyd Gaming was the revenue generated from management and support

fees. When Mr. Krasn was asked if Boyd Gaming employees in Nevada ever come to

Louisiana, the following discussion took place:

13

A. On occasion, they may come to Louisiana; but the management
agreement specifically states that to the extent a Boyd Gaming employee
is performing services outside of Nevada, [ the employee is] performing
those services as an employee of the subsidiary. There' s a common
paymaster rule.

Q. So they would actually bill their time and get paid by - - get a salary
check from the subsidiary?

A. That's not required under the common paymaster rule.

Q. Tell me what the common paymaster rule is.

A. It's just when you have subsidiaries you are not required to cut a
separate check. That you can have those employees work for that entity
and still pay them out of the same entity that you normally do.

Q. Is it your position that because of the common paymaster rule that
person would not actually be providing services here in Louisiana?

A. I' m saying that person is not providing services as an employee of
Boyd Gaming. [ The employee is] providing those services as an employee
of Boyd Kenner or Boyd Racing.

Considering the above and our de novo review of the record, we conclude that

the evidence presented has sufficiently created a genuine issue of material fact.

Although Boyd Gaming claims that the language in the management agreements

provided that Boyd Gaming employees in Louisiana were not performing services for

Boyd Gaming, but rather for the subsidiary, nevertheless, under the common paymaster

rule, the employees providing services in Louisiana were paid by Boyd Gaming.

Therefore, to the extent that Boyd Gaming utilized employees in Louisiana, and

continued to pay those employees, we find there exists a genuine issue of material fact

as to whether said employees were employed by the subsidiary or by Boyd Gaming

while rendering services in Louisiana. Accordingly, we find that the district court erred

in granting summary judgment as to this issue.

Surplus and undivided profits

The Department next argues that the district court erred in concluding that the

audit adjustments to surplus and undivided profits were not proper because the

plaintiffs utilized equity accounting principles to value investments in its unincorporated

affiliates, Treasure Chest, LLC and Boyd Racing, LLC. In particular, the Department

states that the plaintiffs adjusted the book values of various investments below original

acquisition costs to take advantage of losses suffered by the investments. It then

14

asserts that its regulations specifically forbid any such reduction below investment cost

except where the taxpayer can support the reduction with a bona fide valuation based

on the investment' s fair market value. The Department alleges that it is undisputed

that the plaintiffs did not obtain the required bona fide valuations to substantiate the

reduced book values for the investments. Therefore, according to the Department, it

correctly reversed the plaintiffs' decreasing adjustments and used original investment

acquisition cost in its computation of the plaintiffs' corporate franchise tax.

In order to resolve this issue, we must interpret the meaning of the term

surplus and undivided profits" found in LSA- R. S. 47: 605. During the audit period, LSA-

R. S. 47: 605A provided, in part:

A. Determination of value. For the purpose of ascertaining the tax
imposed in this Chapter, surplus and undivided profits shall be deemed to
have such value as is reflected on the books of the corporation,
subject to examination and revision by the collector from the information
contained in the report filed by the corporation as hereinafter provided
and from any other information obtained by the collector; but in no event
shall such revision reflect the value of any asset in excess of the cost
thereof to the taxpayer at the time of acquisition; ... provided that in no
event shall such value be less than is shown on the books of the
taxpaying corporation.

Emphasis added). Additionally, the regulation to LSA- R. S. 47: 605, provided, in part:

A. Determination of value

For the purpose of determining the tax imposed by R. S. 47: 601,
there are statutory limitations on both the maximum and minimum
amounts which shall be included in the taxable base with respect to
surplus and undivided profits. The minimum amount which shall be
included in the taxable base shall be no less than the amount reflected on
the books of the taxpayer. Irrespective of the reason for any book entry
which increases the franchise tax base, such as, but not limited to, entries
to record asset appreciation, entries to reflect equity accounting for
investments in affiliates or subsidiaries, and amounts credited to surplus
to record accrual of anticipated future tax refunds created by accounting
timing differences, the amount reflected on the books must be included in
the tax base.

Entries to the books of any corporation to record the decrease in
value of any investment through the use of equity accounting will be
allowed as a reduction in taxable surplus and its related asset account for
property factor purposes. This is only in those cases in which all
investments are recorded under the principles of equity accounting, and
such reductions in the value of any particular investment below cost
thereof to the taxpayer will not be allowed. The exception is in those
instances in which the taxpayer can show that such reduction is
in the nature of a bona fide valuation adjustment based on the
fair value of the investment. In no case will a reduction below zero

15

value be recognized. Corresponding adjustments shall in all instances be
made to the value of assets for property factor purposes.

Emphasis added).

In support of their motion for summary judgment, the plaintiffs referred to Mr.

Krasn' s affidavit, wherein he attested that all three Boyd entities utilized a common

accounting system during the audit period employing " Equity Accounting" principles to

determine the value of their investments in affiliates for all purposes, including franchise
tax. He further stated that equity accounting determines the recorded value of an

investment by recording the initial cost of the investment and then adjusting the

amount annually by the investor' s share of net profit or loss, subsequent capital

contributions, and distributions. He attested that " cost" under equity accounting

principles is a fluid figure that reflects additions and subtractions to the recorded value

over time. Additionally, Mr. Krasn stated that in the three tax years at issue, each of

the plaintiffs reported losses to several of their investments, which resulted in the

reduction of the ' cost" of each investment with losses below its initial acquisition cost

on their books. Mr. Krasn explained that the Department' s auditor revised the

numerical value of each investment to its original acquisition cost and additional

contributions, which was a number in excess of the cost shown on the plaintiffs' books.

The plaintiffs argue that the Department' s interpretation of " cost" arbitrarily

imputed value that no longer exists and resulted in the taxation of phantom capital.

They also contend that the Department presented no summary judgment evidence

contradicting the determination of the value of the plaintiffs' investments using the

equity method of accounting.

On our de novo review, we find that the evidence sufficiently established that the

adjustments made pursuant to the equity method of accounting reflect the fair value of

the investment. Pursuant to LSA- R. S. 47: 605A, surplus and undivided profits were

deemed to have such value as was reflected on the books of the corporation. lo

Further, the regulation permitted the adjustments based on the fair value of the

investment. See McNamara v. Arkansas -Louisiana Gas Co., 441 So. 2d 446, 449

io We note that this was subject to examination and revision by the collector. See LSA- R. S. 47: 605A.

16

La. App. 2 Cir. 1983). Moreover, the Department failed to present any evidence

contradicting the plaintiffs' determination of the value of their investments utilizing the

equity method of accounting. Accordingly, we find no error by the district court in

granting summary judgment on this issue, finding that the audit adjustments to surplus

and undivided profits were not proper because the plaintiffs utilized equity accounting
principles to value investments in subsidiaries.

Borrowed capital

The Department next assigns as error the district court' s determination that

funds maintained by Boyd Gaming in the common cash management system were

11
improperly characterized by the Department as borrowed capital. The Department

contends that the funds furnished by the affiliates to Boyd Gaming were used to carry

on Boyd Gaming' s own business. Therefore, according to the Department, the funds

constitute borrowed capital and, as such, were properly added for purposes of

computing franchise tax.

The term " borrowed capital" was defined in LSA- R. S. 47: 603, which provided, in

part:

A. As used in this Chapter, " borrowed capital" means all indebtedness of a
corporation, subject to the provisions of this Chapter, maturing more than
one year from the date incurred, or which is not paid within one year from
the date incurred regardless of maturity date.... With respect to amounts
owed by a taxpayer corporation to an affiliate, all real and actual
indebtedness, regardless of age, and which in fact represent capital
substantially used to finance or carry on the taxpayer' s business, shall be
borrowed capital.

B. The following indebtedness shall be excluded:

2) Advances, credits, or sums of money voluntarily left on deposit with
the taxpayer, or for credit account by customers or other persons with
merchants, agents, brokers, or factors, to facilitate the transaction of
business between such parties, and by such taxpayer segregated and not
otherwise used in the conduct of its business.

11 In 2004, the legislature began the phase- out of borrowed capital as being included in taxable capital
for computing franchise tax, and LSA- R. S. 47: 603 was repealed by La. Acts 2008, 2nd Ex. Sess., No. 10, §
3, eff. Jan. 1, 2011.

17

The Department contends that LSA- R. S. 47: 603A dictates that the funds

advanced from the Louisiana subsidiaries to Boyd Gaming created a " real and actual
indebtedness" between the entities. Therefore, it reclassified funds held by Boyd

Gaming as borrowed capital for purposes of computing franchise tax. The Department

argues that the funds held in Boyd Gaming' s concentrator account were subject to the

complete control of Boyd Gaming and that the subsidiaries could not access said funds.

Further, it alleges that the funds were not in any way actually segregated or earmarked

as belonging to the subsidiary of origin.

In order to determine if the transfer of funds between Boyd Gaming and its

Louisiana affiliates constituted a " real and actual indebtedness," we look to the

regulation regarding borrowed capital, found in Rule 603, which provided, in part:

A. General

As used in this Chapter, " borrowed capital" means all indebtedness
of a corporation, subject to the provisions of this Chapter, maturing more
than one year from the date incurred, or which is not paid within one year
from the date incurred regardless of maturity date.

Ali indebtedness of a corporation is construed to be capital
employed by the corporation in the conduct of its business or pursuit of
the purpose for which it was organized, and in the absence of a specific
exclusion, qualification, or limitation contained in the statute, must be

included in the total taxable base. No amount of indebtedness of a
corporation may be excluded from borrowed capital except in those cases
in which the corporation can demonstrate conclusively that a specific
statutory provision permits exclusion of the indebtedness from borrowed
capital.

In the case of amounts owed by a corporation to a creditor who
meets the definition of an " affiliated corporation" contained in R. S.
47: 603, the age or maturity date of the indebtedness is immaterial. An
affiliated corporation is defined to be any corporation which through ( a)
stock ownership, ( b) directorate control, or ( c) any other means,
substantially influences policy of some other corporation or is influenced
through the same channels by some other corporation. It is not necessary
that control exist between the corporations but only that policy be
influenced substantially. Any indebtedness between such corporations
constitutes borrowed capital to the extent it represents capital

substantially used to finance or carry on the business of the debtor
corporation, regardless of the age of the indebtedness. For this purpose,
all funds, materials, products, or services furnished to a corporation for
which indebtedness is incurred, except as provided in this subpart with
respect to normal trading accounts and offsetting indebtedness, are

construed to be used by the corporation to finance or carry on the
business of the corporation; in the absence of a conclusive showing by the

IM,

taxpayer to the contrary, all such indebtedness shall be included in
borrowed capital.

B. Exclusions from Borrowed Capital

2) Voluntary deposits

The liability of a taxpayer to a depositor created as the result of
advances, credits, or sums of money having been voluntarily left on

deposit shall not constitute borrowed capital if:

a) said moneys have been voluntarily left on deposit to facilitate
the transaction of business between the parties, and

b) said moneys have been segregated by the taxpayer and are not
otherwise used in the conduct of its business.

The Department argues that the regulation shows that actual indebtedness is

created when funds are advanced to a taxpayer from an affiliated corporation and that

these advanced funds are deemed to be used to carry on the taxpayer's business unless

the taxpayer can conclusively prove otherwise. Further, it asserts that such

indebtedness " shall be borrowed capital" under LSA- R. S. 47: 603A. The plaintiffs

contend, however, that the funds were held on deposit by Boyd Gaming, were not

borrowed" by Boyd Gaming, and were not " real and actual indebtedness."

Additionally, they argue that the funds were segregated in the ledger account and were

not used in the conduct of Boyd Gaming' s business.

The evidence presented in support of and in opposition to the motion for partial

summary judgment established that, during the audit period, the Boyd entities used a

common accounting system and a common health benefits plan. As part of its own

operations, Boyd Gaming, the corporate parent, provided certain centralized

administrative services for itself and all affiliates, which included maintaining

consolidated books and records and administering the benefits plan. Individual

operating entities, however, were the primary administrators of local operations, and

each entity maintained its own property -specific set of books.

The evidence further established that various operating entities, including Boyd

Kenner and Boyd Louisiana Racing in Louisiana, generated cash daily from operations.

19

Once expenses were paid, if cash remained in the local operating entity's bank account,

the excess cash was " swept" daily into a central concentrator account and held for the

benefit of the operating entity, such as Boyd Kenner or Boyd Louisiana Racing.

Boyd Gaming' s books included a ledger account labeled " due to/ from affiliate" or

DTFA" in which payments were recorded as either " due to" or " due from" an affiliate.

When sufficient swept funds were recorded in the DTFA as " due to" an affiliate,

amounts " due from" that affiliate were simultaneously ` paid" to Boyd Gaming and

accounted for in Boyd Gaming' s operations. The net amount in the DTFA account was

always held " on account" for the use of the affiliates.

Both Mr. Krasn and Bryan Wilson, the cash manager at Boyd Gaming, stated in

their affidavits that the excess funds were managed by Boyd Gaming and were held on

deposit for the affiliates. They also attested that the funds were not used in Boyd

Gaming"s business. Mr. Krasn specifically stated that " Boyd Gaming does not use cash

swept from its affiliates to finance or carry on its business." Mr. Wilson also stated that

the funds that were swept " were not used in Boyd Gaming' s business; they were held

on deposit for the affiliates."

We begin our de novo review pointing out that any indebtedness of Boyd

Gaming is construed to be used by the corporation to finance or carry on its business

and shall be included in borrowed capital, absent a conclusive showing by the taxpayer

to the contrary. See Rule 603. We find that the plaintiffs failed to present sufficient

evidence to establish that the funds swept by Boyd Gaming were not an " indebtedness"

and the auditor erred in finding that the funds were borrowed capital. Although the

plaintiffs presented evidence that the funds " due to" the Louisiana subsidiaries were not

used in the conduct of Boyd Gaming' s business, we note that no evidence was

presented of any restrictions or limitations on Boyd Gaming' s use of the funds in the

concentrator account. Further, the record establishes that Boyd Gaming had exclusive

control of the concentrator account. Accordingly, we find that Boyd Gaming failed to

conclusively establish that the funds were not substantially used to carry on its

business.

20

Additionally, Boyd Gaming failed to establish that these funds fell within an

exclusion from borrowed capital as set forth in LSA- R. S. 47: 603B( 2). There was no

evidence that the moneys were " segregated by the taxpayer" as required by this

statute. The definition of "segregate" in Black's Law Dictionary ( 11th ed. 2019) is "[ t]o

separate or make distinct from others or from a general aggregate; to isolate" and "[ t] o

cause or require separation from others." 12 The statute clearly required segregation,

and we find that a ledger account labeled " DTFA" failed to adequately satisfy that

requirement. Undoubtedly, the legislature envisioned something more than just an

account entry, such as a separate bank account, as asserted by the Department.

Based on the evidence presented, we do not find that Boyd Gaming conclusively

established that the funds were not borrowed capital, nor do we find that they were

excluded from borrowed capital as a " voluntary deposit." Accordingly, we find that the

district court erred in finding that the funds swept by Boyd Gaming were improperly

characterized as borrowed capital following the audit and in granting summary

judgment as to this issue.

Partnership losses

In its last assignment of error, the Department contends that the district court

erred in concluding that Boyd Gaming could include losses suffered by Boyd Louisiana

Partnership for franchise tax purposes. Boyd Gaming is the sole owner of Boyd

Louisiana Partnership. The Department argues that the inclusion of Boyd Louisiana

Partnership' s losses in computing an entity's activity in Louisiana results in a distorted

volume of business ratio and thus an inaccurate computation of franchise tax. The

Department further states that allowing recognition of such a loss gives the appearance

that a company had less activity in Louisiana when in fact the opposite may be true. It

also asserts that it has been the Department's long- standing policy not to construe

partnership losses as revenue of a parent corporation, and there is simply no basis

anywhere in LSA- R. S. 47: 606 to treat a loss by a subsidiary as revenue of a parent

corporation.

12 See also Merriam -Webster Dictionary ( online) (" segregate" is " to separate or set apart from others or
from the general mass").

21

Therefore, the issue before us now is how partnership losses should have been

allocated during the audit period for purposes of corporate franchise tax computation.

Applicable to this issue is LSA- R. S. 47: 606A( 1)( k), which provides:

All other revenues shall be attributed within and without this state
on the basis of such ratio or ratios, prescribed by the collector, as may be
reasonably applicable to the type of revenues and business involved.

The Department's corresponding regulation to this subsection provided, in

pertinent part:

For purposes of this chapter, revenues from partnerships shall be
attributed within and without Louisiana based on the percentage of the
partnership' s capital employed in Louisiana, determined by the
arithmetical average of the following two ratios:
1] The ratio that the partnership' s net sales and other revenue in
Louisiana bear to the partnership' s total net sales and other revenue
everywhere as described in R. S. 47: 606A( 1) and subparts thereunder; and
2] The ratio that the partnership' s Louisiana property bears to the
partnership total property everywhere as described in R. S. 47: 606A( 2)
and subparts thereunder.

The plaintiffs maintain that, during the audit period, losses from partnerships fell

within " all other revenues" and were attributed based on the percentage of the

partnership' s capital employed in Louisiana, determined by the arithmetical average of

the two ratios set forth in the regulation. According to the plaintiffs, as per the

regulation, " net sales and other revenue" took expenses into account, and, given that

the regulation did not specifically mention losses, they included net losses from

partnerships in its volume of business ratio. The plaintiffs assert that the Department' s

auditor arbitrarily changed the allocation of the partnership tax loss for Boyd Louisiana

Partnership, as shown in the partnership' s tax returns, to the book value of the

partnership because it resulted in a higher tax. The plaintiffs also contend that the

Department relied on the current provision of the regulation on allocation of partnership

revenue and not on the regulation in effect during the audit period. They assert that

the regulation in effect at the applicable time did not include the current language that

losses from a partnership are not revenue from a partnership" and that the auditor

incorrectly relied on the 2006 substantive amendment to the regulation.

The Department submitted the affidavit of Jay Frost, a review auditor with the

Department, who attested that it has been the Department' s long- standing policy and

22

construction of pertinent statutes to disallow inclusion of partnership losses in the

business volume ratio used to compute franchise tax. He also stated that the policy

was formally pronounced in a 2006 revision to the Louisiana Administrative Code.

On our review of the record, we find that the plaintiffs failed to present evidence

to sufficiently establish that Boyd Louisiana Partnership' s losses during the audit period

were " revenues from a partnership" pursuant to LSA- R. S. 47: 606A and its applicable

regulation. Moreover, the Department presented evidence to the contrary. Therefore,

given that the plaintiffs, as the moving party, failed to show that there was no genuine

issue of material fact regarding partnership losses, we find that the district court erred

in granting summary judgment as to this issue.

CONCLUSION

For the above reasons, we affirm the August 9, 2016 and November 18, 2016

judgments in part and reverse in part. We affirm the summary judgments insofar as

they find no genuine issue of material fact as to the audit adjustments regarding

surplus and undivided profits. With regard to the management fees, borrowed capital,

and partnership losses, we reverse the judgments of the district court and remand for

further proceedings consistent with the views expressed in this opinion. Costs of this

appeal in the amount of $4, 710. 00 shall be assessed one- half to the State of Louisiana,

Department of Revenue and Taxation, and one- half to Boyd Gaming Corporation, Boyd

Kenner, Inc., and Boyd Louisiana Racing, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

23

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2018 CA 1309

BOYD LOUISIANA RACING, INC.
VERSUS
CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE & TAXATION,
STATE OF LOUISIANA

Consolidated With

2018 CA 1310

BOYD GAMING CORPORATION
VERSUS
CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE & TAXATION,
STATE OF LOUISIANA

Consolidated With

2018 CA 1311

BOYD KENNER, INC.
VERSUS
CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE & TAXATION,
STATE OF LOUISIANA

Whipple, C.J. dissenting in part.

I agree with the majority in all respects, except one: I disagree with the

majority' s decision to affirm the portion of the district court' s summary judgment,

which reversed the Department' s audit determinations based on the district court

finding that the Department improperly determined the value of the investments and

made improper adjustments, ( and thereby erred in determining the surplus profits

and revaluing or adjusting the sums to the acquisition costs). In my view, reading

the statutes at issue together, the Department was properly within its rights in setting

aside the taxpayers' " adjustments." The relevant portion of LSA-R.S. 47: 605A

provides that " in no event shall such value be less than is shown on the books of the

taxpaying corporation." Thus, the statutory scheme recognizes that the value for tax

purposes can be adjusted to reflect greater value by the collector from any

information obtained by the collector. Further, while a decrease in value is allowed

under certain circumstances as recognized by the majority, pursuant to LSA-R.S.

47: 605, such exception applies only in those instances in which the taxpayer can

show its reduction is a bona fide valuation adjustment based on the fair market value

of the investment, which the taxpayer failed to show. Thus, I would render judgment

in favor of the Department on this issue. For these reasons, I respectfully dissent in

part.