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Illinois Power Co. v. Mahin

OPINION FILED MAY 26, 1978.

ILLINOIS POWER COMPANY, APPELLANT,

v.

GEORGE E. MAHIN, DIRECTOR OF REVENUE, ET AL., APPELLEES.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. Frank J. Gollings, Judge, presiding.

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 29, 1978.

Defendants, George E. Mahin, Director of Revenue for the Department of Revenue, and Alan J. Dixon, Treasurer of the State of Illinois, appealed from the decree of the circuit court of Macon County entered in plaintiff's action seeking to enjoin the further collection, and for the refund, of taxes assessed by the Department of Revenue, hereafter the Department, and paid by plaintiff under protest. The appellate court reversed (49 Ill. App.3d 713), and we allowed plaintiff's petition for leave to appeal.

Involved here are the Gas Revenue Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 467.16 et seq.) and the Public Utilities Revenue Act (ch. 120, par. 468 et seq.), which in nearly identical language provide:

"`Gross receipts' means the consideration received for [gas] [electricity] distributed, supplied, furnished or sold to persons for use or consumption and not for resale and for all services rendered in connection therewith, including [receipts] [amounts received] from minimum service charges, and [shall include] [includes] cash, services and property of every kind or nature, and shall be determined without any deduction on account of the cost of the service, product or commodity supplied, the cost of materials used, labor or service costs, or any other expense whatsoever. * * *" Ill. Rev. Stat. 1971, ch. 120, pars. 467.16, 468.

Contending that under the foregoing definitions the proceeds of the transactions were taxable, the Department assessed taxes on contributions made by customers to plaintiff in aid of construction, advances received by plaintiff for construction, and sums collected by plaintiff for the rental of equipment and appliances. Under protest, plaintiff paid the taxes thus assessed, and the additional taxes allegedly due for subsequent transactions. Between the dates of December 1, 1972, and May 31, 1977, plaintiff had paid under protest a total of $734,350.32.

The circuit court held that payments received by plaintiff as advances for construction, contributions in aid of construction, and rentals for furnishing or renting equipment or appliances could not be subjected to the taxes, and enjoined defendants "from collecting, assessing or in any manner imposing Public Utilities Revenue Acts or Gas Revenue Act taxes, interest or penalties by reason of funds obtained by the plaintiff as a result of any of the following transactions: (a) electric advances for construction; (b) electric contributions in aid of construction; (c) gas advances for construction; (d) gas contributions in aid of construction; (e) electric equipment rentals; (f) gas equipment rentals; (g) electric appliances rentals; and (h) gas appliance rentals."

The appellate court reversed, holding that under the plain language of the statutes, "gross receipts" included not only the receipts from the sales of gas and electricity but also the consideration received for all services rendered and all contributions, advances and rental payments. 49 Ill. App.3d 713, 718.

Plaintiff is a public utility providing electric and gas service to customers in an area of Illinois encompassing approximately 15,000 square miles. It has on file with the Illinois Commerce Commission schedules of rates, and rules and regulations. It appears from the testimony that the contributions in aid of electrical construction were most frequently required by plaintiff in connection with replacement of overhead lines with underground installations. With relation to gas sales and distribution, the advances and contributions were most frequently made in connection with the installation of excess footage to new subdivisions. Although for accounting purposes both contributions and advances in aid of construction are treated as capital and so shown on plaintiff's balance sheet, they are not taken into consideration in fixing the base upon which plaintiff's rate structure is determined. Contributions in aid of construction, whether for electricity or gas, are not refundable. Customer advances for construction are carried as a deferred credit, and if at some point plaintiff determines that an advance is no longer refundable, the item is transferred from the customer advance account to the contributions-in-aid-of-construction account. Exhibits received in evidence show that approximately two-thirds of the customers' advances for electrical construction and 10% of the advances for gas construction made during the audit period were refunded.

Plaintiff contends that the legislative history and long-standing interpretation of the Public Utilities Revenue Act and the Gas Revenue Tax Act show that they were not intended to tax the transactions here involved. It states correctly that as originally enacted the public utilities tax act (Ill. Rev. Stat. 1937, ch. 120, pars. 468 to 481) applied to electric, gas and telephone utilities, that it contained in the definition of gross receipts the phrase "and for all services rendered in connection therewith" (Ill. Rev. Stat. 1937, ch. 120, par. 468), and also provided that "The words `transmitting telegraph or telephone messages' shall include the leasing or rental of equipment or property for the transmission of telegraph or telephone messages" (Ill. Rev. Stat. 1937, ch. 120, par. 468). Referring to the 1945 enactments of the Messages Tax Act (Ill. Rev. Stat. 1945, ch. 120, par. 467.1 et seq.), the Gas Revenue Tax Act (Ill. Rev. Stat. 1945, ch. 120, par. 467.16 et seq.), and the Public Utilities Revenue Act (Ill. Rev. Stat. 1945, ch. 120, par. 468 et seq.), it points out that only the Messages Tax Act contained a reference to "the furnishing, for a consideration, of services or facilities (whether owned or leased), or both" (Ill. Rev. Stat. 1945, ch. 120, par. 467.1). It argues that these statutes, contemporaneously enacted, must be considered in pari materia and clearly demonstrate the legislative intent that under the Public Utilities Revenue Act and the Gas Revenue Tax Act no tax apply to the furnishing of "services or facilities." Plaintiff argues too that the administrative interpretation over a period of 35 years during which the Department failed to assert that advances, contributions and rentals were includable in "gross receipts" must be considered of great importance in construing the statute. It is the Department's position that under the plain language of the statutes the taxes apply, and that the alleged failure on the part of the Department to properly enforce the statutes cannot now bar the State from collecting the revenues that are due under their provisions.

We do not find it necessary to resort to the techniques suggested by plaintiff for statutory interpretation. The language of the statutes must be given its plain and ordinary meaning. "It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. [Citations.] This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction. [Citations.] There is no rule of construction which authorizes a court to declare that the legislature did not mean what the plain language of the statute imports." (Western National Bank v. Village of Kildeer (1960), 19 Ill.2d 342, 350.) The explicit language of the statutes provides that "gross receipts means the consideration received," not only for the gas or electricity furnished or sold, but also the consideration received "for all services rendered in connection therewith." The fact that a part of the consideration is received in the form of a contribution or an advance for purposes of construction does not render it any the less the consideration for the gas or electricity "distributed, supplied, furnished or sold." Similarly, the fact that a portion of the consideration is received in the form of rental payments for equipment or appliances used in the furnishing, distribution or consumption of the gas or electricity does not serve to alter its character as a portion of the consideration.

We do not find persuasive the argument that the General Assembly intended that only in the Messages Tax Act was the term "gross receipts" to include the proceeds from the leasing or rental of equipment and property. This provision appears to recognize that telephones are ordinarily supplied by the utility, and there is no incongruity in holding that the leasing or rental of equipment and appliances by suppliers of gas and electricity constitute "services rendered in connection" with the sale or distribution of their products.

We have considered plaintiff's argument that the long-standing interpretation by the Department must be given consideration and find apposite the following language from Martin Oil Service, Inc. v. Department of Revenue (1971), 49 Ill.2d 260, 269: "It is undeniable that weight should be given a contemporaneous construction placed on an ambiguous statute by the officers charged with the duty of administering it. We do not believe the statute is ambiguous. Even if ambiguity is assumed, the rule obviously cannot be invoked to prevent those officers from rectifying an erroneous construction. An administrative construction of a statute is not binding if it ...


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