Clerk of Court For the Court Calcasieu Parish School Board Sales & Use Department, Et Al. v. Nelson Industrial Steam Company

The Supreme Court of the State of Louisiana
Clerk of Court
For the Court
CALCASIEU PARISH SCHOOL BOARD
SALES & USE DEPARTMENT, ET AL.
VS.
NELSON INDUSTRIAL STEAM COMPANY
No.2020-C-00724
_ _ _ _ _ _
IN RE: Calcasieu Parish School Board Sales and Use Tax Department - Applicant
Plaintiff; Kimberly Tyree, in her capacity as Administrator of the Calasieu Parish
School Board Sales and Use Tax Department - Applicant Plaintiff; Applying For
Writ Of Certiorari, Parish of Calcasieu, 14th Judicial District Court Number(s) 2017-
1373, Court of Appeal, Third Circuit, Number(s) 19-315;
_ _ _ _ _ _
October 20, 2020
Writ application granted. See per curiam.
WJC
BJJ
JLW
JDH
SJC
Genovese, J., would deny.
Boddie, J., would deny.
Supreme Court of Louisiana
October 20, 2020
10/20/2020 "See News Release 040 for any Concurrences and/or Dissents."

10/20/20
S
UPREME COURT OF LOUISIANA
No
. 2020-C-00724
CAL
CASIEU PARISH SCHOOL BOARD SALES & USE DEPARTMENT,
ET AL.
VS.
NELSON INDUSTRIAL STEAM COMPANY
O
n Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Calcasieu
PE
R CURIAM*
W
rit granted. Ash is an incidental byproduct under the statutory definition set
forth by Louisiana Revised Statutes 47:301(c)(i)(aa)(III)(aaa), as recently amended
by the legislature. The court of appeal too narrowly construed the meaning of
“incidental,” limiting the amendment’s application only to those products that were
unintentional or unplanned. However, within the broader context of the statute, it is
clear the legislature included within the scope of the term “byproduct” any product
that is secondary to a primary product when it is sold for a price less than the cost of
its materials. The ash at issue is plainly secondary to the electricity, and the sales
price of the ash is less than the cost of the limestone. As such, the purchase of
limestone, which is a material further processed into ash, “shall not be deemed to be
sales for further processing and shall be taxable.” Id. We remand to the court of
appeal for consideration of remaining assignments of error, which were pretermitted,
including an analysis of whether the amendment is a new tax or an increase in a tax
because the court of appeal’s holding thereon was based on an erroneous
interpretation of Act 3.
* R etired Judge James Boddie , Jr. appointed as Justice pro tempore, sitting for the vacancy in Louisiana Supreme
Court District 4.