THIBODEAUX, Chief Judge.

Nelson Industrial Steam Company (NISCO) appeals four judgments rendered against it in four consolidated tax cases. Two judgments in favor of Cynthia Bridges, Secretary, Louisiana Department of Revenue, State of Louisiana (State) ordered NISCO to pay taxes, penalties, and interest owed. Two judgments in favor of Calcasieu Parish School System Sales and Use Tax Department as Central Collector of Sales and Use Tax for the Parish of Calcasieu, and John Collins1 in his Capacity as Administrator of the Calcasieu Parish School System Sales and Use Tax Department (Parish), dismissed NISCO's two suits for refunds of taxes, penalties, and interest paid under protest. Finding no legal error or manifest error in the judgments of the trial court, we affirm.

I.

ISSUES

We must decide:

II.

FACTS AND PROCEDURAL HISTORY

NISCO constructs and operates power-generating facilities in the Lake Charles area. During the relevant tax periods, NISCO's revenue from the sale of electricity was $739 million. NISCO purchased sand and limestone for its generating process at a cost of $46 million. Generally, raw materials which are sold at retail and used up in the manufacturing process are considered tangible personal property, and they are subject to sales tax at the time of their purchase, unless a special exemption or exclusion applies. NISCO sought to be exempt from paying sales tax on its purchase of sand and limestone by invoking the "further processing" statute.2

The claims of taxes owed by the tax collecting agencies and the claims of NISCO for the tax exemption/exclusion ultimately resulted in four consolidated cases: two suits against NISCO by the State to collect taxes for the tax periods 2005-2007 and 2008-2012;3 and two suits against the Parish by NISCO for refunds of taxes paid under protest for tax periods 2007-2009 and 2010-2012.4

The trial court initially heard cross-motions for summary judgment on the further processing issue and granted summary judgments in favor of the State and the Parish in the first three suits. On appeal, this court affirmed. Bridges v. Nelson Industrial Steam Co., 12-477 (La. App. 3 Cir. 11/7/12), 106 So.3d 147. The Louisiana Supreme Court granted NISCO's writ application and vacated the summary judgment rulings, finding that genuine issues of material fact precluded summary judgment. Bridges v. Nelson Industrial Steam Co., 13-171 (La.3/8/13), 108 So.3d 1168. On remand, following a trial on the merits which included the fourth suit, the trial court rendered judgments again in favor of the State and the Parish, signing four separate judgments, one for each of the consolidated cases.5 NISCO appealed. For the reasons that follow, we affirm the judgments of the trial court.

III.

STANDARDS OF REVIEW

Questions of law, such as the proper interpretation of a statute, are reviewed by an appellate court under the de novo standard of review. Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36. An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless the findings are clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). If a trial court's findings are reasonable based upon the entire record and evidence, an appellate court may not reverse those findings even if it is convinced that had it been sitting as trier of fact it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). This principle of review is grounded upon the better capacity of the trial court to evaluate live witnesses and also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

IV.

LAW AND DISCUSSION

The trial court's reasons for judgment consist of one short paragraph:

NISCO assigns seven errors regarding the above application of the further processing statute, La.R.S. 47:301(10)(c)(i)(aa). Whether the statute applies is essentially one issue and will be treated as such. NISCO assigns two additional errors regarding the imposition of penalties against NISCO and the failure to award attorney fees to NISCO in NISCO's suits against the Parish. Thus, there are three main issues for review.

General Legislation

A manufacturer, like any consumer, is taxed on items of tangible personal property that it purchases and uses in manufacturing its product, pursuant to La.R.S. 47:302(A), which states in pertinent part: "There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein...."

Louisiana Revised Statutes 47:301(10) (emphasis added) states in pertinent part:

Thus, generally, items that are purchased for the purpose of reselling them in the open market are not taxed until they are sold at retail to the end consumer. There are numerous specific inclusions and specific exclusions or exemptions to the general rules.6

Further Processing Statute: La.R.S.47:301(10)(c)(i)(aa)

Here, NISCO seeks to be exempt from paying sales tax on its $46 million purchase of sand and limestone by asserting that it did not use up the raw materials in manufacturing steam and electricity; rather, they were purchased for the purpose of resale because NISCO sold the ash that was created in the manufacturing process for $6.8 million. Specifically, NISCO invokes La.R.S. 47:301(10)(c)(i)(aa) which states, in full: "The term `sale at retail' does not include sale of materials for further processing into articles of tangible personal property for sale at retail."

The Louisiana Secretary of Revenue has promulgated rules and regulations in La.Admin.Code tit. 61, pt. I, § 4301, entitled, "Uniform State and Local Sales Tax Definitions," which define the terms and phrases and provide examples for La. R.S. 47:301(1)-(27) "for illustration only [but] in no case should they be construed to impose a limitation" on the statute. La.Admin.Code tit. 61, pt. I, § 4301(C). Under § 4301(C) of the regulations, the definition of "Retail Sale or Sale at Retail —," provides in pertinent part:

The seminal cases interpreting the statute and the regulations are Traigle v. PPG Industries, Inc., 332 So.2d 777 (La. 1976), and Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193, 1196 (La.1981) (on rehearing). A three-pronged test has developed to determine whether a manufacturer's purchase of raw materials will be exempt from the sales and use tax under the "further processing" statute. The raw materials, or their component molecular parts, (1) must be of benefit to the end product; (2) must be a recognizable and identifiable component of the end product; and (3) must have been purchased for the purpose of reprocessing into the end product. International Paper v. Bridges, 07-1151 (La.1/16/08), 972 So.2d 1121.

In Traigle, 332 So.2d 777, the Department of Revenue brought a proceeding to collect sales and use taxes on graphite blades purchased by PPG for use in its production of chlorine. The trial court found that taxes were due, and this court reversed. The Louisiana Supreme Court reversed this court and reinstated the trial court. Justice Tate held that graphite could not be regarded as having been purchased for processing into the finished article because the raw material was not an integral part of the end product. Justice Tate articulated as follows:

Id. at 779.

In discussing the factual context of PPG's operations, Justice Tate explained:

Id. at 779-80.

The court found the taxpayer's contention tenable because the literal wording of La.R.S. 47:301(10) permitted that, "if the substance used in the manufacture enters into the final article produced for resale (however unintended or useless or minutely), the substance [could] be regarded as purchased for `processing into' the article produced for sale[.]" Id. at 781. The court, however, concluded:

Id.

In summary, the Traigle court found that carbon residue from graphite blades was identifiable in the chlorine produced by Traigle, but the trace residue was unintended and unavoidable waste. It was not integrated into or of any benefit to the chlorine, and the graphite used in the manufacturing process was not purchased for the purpose of resale or for further processing into the chlorine produced for sale.

In Vulcan, 414 So.2d 1193, the plaintiff manufactured manhole covers made of iron. The product standards required that the iron contain between 3.10 and 3.30 percent of carbon, which meant that, depending on how deficient the scrap iron was, carbon might have to be added during processing. As a heat source for melting the iron, Vulcan used coke which gives off carbon as it burns. Vulcan argued that its purchases of coke should be exempt from sales and use taxes because its purpose in using coke was to process the carbon into the iron for sale at retail. The trial court found that two exemptions applied to Vulcan's purchases of coke: the further processing exclusion under La.R.S. 47:301(10), and the boiler fuel exemption under La.R.S. 47:305(4). The appellate court affirmed based upon the further processing exclusion alone. On original hearing, the Louisiana Supreme Court affirmed solely on the boiler fuel exemption. On rehearing, however, the Louisiana Supreme Court found that neither exemption applied.

In discussing the reprocessing exclusion of La.R.S. 47:301(10), the court determined that if the item was bought for further processing into items of tangible personal property for sale at retail, the item was exempt; but if the item was part of the manufacturing process, the manufacturer was the ultimate consumer, and the tax was owed. Based upon the testimony of a metallurgist, a chemist, and Vulcan's general manager, the court determined that using coke resulted in a net increase in carbon of less than one half of one percent, that there were other methods for adding carbon to the product, and that the addition of carbon through the use of coke was a secondary benefit. The court stated that, while the presence of carbon in the final product was "beneficial" to Vulcan, the "proper inquiry" was the "purpose" for which the coke was bought. Id. at 1198. Ultimately, the Vulcan court found that carbon, an element of the raw material coke, was identifiable and beneficial (but still only incidental) to the iron products that Vulcan manufactured; and the coke was purchased by Vulcan as a consumer for the purpose of heating scrap iron, not for further processing into an article for resale.

In International Paper, 972 So.2d 1121, the court found that three chemicals were exempt from the tax because they were purchased by a paper manufacturer with the purpose of incorporating them into their white products. This conclusion was in spite of a contractual agreement that the chemicals were primarily used for bleaching and whitening the pulp that was then pressed into paper. The evidence indicated that the manufacturer chose the chemicals because they served as oxidizing agents; that the oxygen from the raw chemicals became a recognizable, identifiable, and integral part of the white paper products; and that the presence of the oxygen within the final products was not only beneficial to the products but also necessary to their production. In applying the criteria, each of the above courts examined the factual context of the manufacturer's process.

Here, NISCO was formed in an April, 28, 1988 partnership agreement, ("Partnership Agreement" or "Agreement") between Gulf State Utilities ("GSU," now known as "Entergy") and three other companies that had facilities in Lake Charles, Louisiana: Citgo, Conoco, and Vista (now, "Sasol"). The partnership was formed for the purpose of generating cost-effective electrical power for the three industrial partners and then selling the excess power to Entergy. The Agreement provided the partners' intent as follows:

The Partnership Agreement specifically set forth the purpose of the venture under its own heading, as follows:

The parties to the 1988 Agreement initially began producing both electricity and steam using natural gas as fuel for the boilers. The Agreement indicated the partners' future intent to convert its facilities from natural gas technology to a "circulating fluidized boilers" (CFB) technology in order to lessen and stabilize their energy costs. The CFB technology incorporates the use of petroleum-coke ("petcoke") as fuel for the boilers. When petcoke is burned, it emits unacceptable levels of sulfur into the air, and the process is therefore regulated by the DEQ and the EPA. The use of limestone, considered a scrubbing agent, is required in order to capture the sulfur burning off of the petcoke. The limestone reduces the emission of sulfur into the air by 90%. After the limestone interacts with the petcoke, it produces a burnt residue, or by-product, called ash. This occurs when calcium carbonate from the limestone combines with the sulfur from the petcoke to make calcium sulfate, the ash. The original Agreement provided for the eventual handling of the ash.

NISCO switched to the CFB technology in 1992. Initially, NISCO stored the ash on site at its facility and shortly thereafter located a buyer for the ash. By 1996, NISCO was selling all of its ash to LA Ash. LA Ash resells some of the ash in its original state and processes some of it into other products for resale for industrial, construction, environmental, and governmental applications.

As stated by the trial court, it is undisputed that the limestone did not appear in any form in the electricity produced and sold by NISCO. And NISCO does not contend that it purchased the limestone for further processing into steam and electricity. Rather, NISCO argues that the limestone does appear in and benefit the ash, and that NISCO intentionally purchased limestone for the additional purpose of manufacturing ash which it sells on the market as a third product. Essentially, NISCO's assigned errors concern the trial court's failure to apply each of the three criteria to the production of ash as a co-product. The taxing agencies argue that the ash is a residue, not a purposefully created product; that no manufacturer produces ash alone as a product; and that no business would spend $46 million on limestone to manufacturer ash that sold for only $6.8 million.

The testimony of Sandi Boyles, NISCO's business manager, reveals that the sand does not appear in the ash. The testimony of LA Ash President and CEO, Gary Livengood, and NISCO's own charts indicate that the valuable calcium in the limestone is essentially used up in absorbing the sulfur from the burning of the petcoke as fuel. The ash that remains is not re-used or reprocessed by NISCO, and NISCO does not collect sales tax from LA Ash when it "resells" the ash to LA Ash. LA Ash then resells the ash to tax-exempt governmental agencies for parking lots and highways, and also to commercial establishments, some of which resell it again to their customers. It appears, then, that one of the ultimate consumers who finally pays the tax on NISCO's $46 million purchase of limestone is the neighbor John Doe who buys a sack of ash at Home Depot to put in the hole that he dug in his backyard in preparation of planting his new azalea bush.

With regard to NISCO's assertion that NISCO's payment of the tax on the limestone would result in double taxation, Justice Tate in Traigle stated as follows:

Traigle, 332 So.2d at 783 (emphasis added where underlined).

Similarly here, the ultimate consumer of the residual ash seems no more the purchaser of the $46 million in limestone than he is of the pet coke or other ingredients in NISCO's manufacturing process.

As to the benefit element of the analysis, the limestone is an integral part of the ash, but the evidence indicates that the precise makeup is accidental in that NISCO does nothing purposeful to affect the quality of the ash. In fact, it worked to keep the quantity of production of the ash down. More specifically, the deposition of Andrew Guinn, Sr., president of Port Aggregates, who supplied between 225,000 and 250,000 tons of limestone to NISCO annually, reveals that the more calcium in the limestone, the more sulfur is absorbed from the petcoke, and the less limestone is required in the process for creating electricity. Consequently, there is less cost. The amount of sulfur in the petcoke varies, as does the calcium content in limestone. Thus, a blend was created that kept NISCO's process within DEQ and EPA regulations. Limestone from different quarries has varying amounts of calcium, and the limestone use is always adjusted to accommodate the sulfur content in the petcoke being used. E-mails between former NISCO business manager Sandi Boyles and senior management supervisor Dick Gooley, and copied to former operations manager Rick Zagar, indicate that the sale value of ash changes depending on the quality of the limestone. Other documentation indicates that much testing was done on the limestone for the production of electricity.

However, as to the "production" of ash, there was apparently no testing to determine how a particular quality limestone would impact the ash product. When current NISCO business manager Mitchell Todd Barnett was asked at trial to identify documents that addressed testing of the ash product, he could not locate any. Moreover, while less limestone meant lower costs for producing electricity, more limestone meant a greater production of ash. Yet, evidence indicated that NISCO wanted to produce less ash. Slides attached to Sandi Boyles' e-mail indicated that a power company in Alexandria was considering selling its ash for $2 to $3 dollars per ton, and that other power plants were paying ash companies to take their ash because it was cheaper than putting it in a land fill.

Regarding the purpose element of the analysis, NISCO points to the testimony of its business manager, Mr. Barnett, its site operations manager, Shelly Hacker, and La Ash CEO, Mr. Livengood, confirming that NISCO had a dual purpose in purchasing the limestone and that the original Partnership Agreement provided for the future handling of ash at its facility. NISCO points to the International Paper, 972 So.2d 1121, case as support for its position that the purpose for which a raw material is purchased does not have to be the manufacturer's "primary" purpose. However, the second purpose of the three chemicals found exempt in International Paper had nothing to do with a secondary product. The only product at issue was the manufacturer's production of white paper products, and the white paper products were not a by-product of residue left over after the production of other products. The admonition of the second circuit by the supreme court in International Paper was that the intermediary court had misinterpreted Traigle and Vulcan to require that the primary purpose for the purchase of the material must be to process it into the end product, which was an unacceptable expansion of Traigle and Vulcan.

In International Paper there was actually a written agreement from the 1980's between the Department of Revenue and the majority of paper manufacturers, including International Paper, stating that the chemicals used in the manufacturer of white paper products were taxable because their primary purpose was bleaching and whitening the pulp, as opposed to the chemicals' incorporation into the final paper product. International Paper found that the chemicals were incorporated into the end product and made it clear that the primary stated purpose of bleaching the pulp in one step of the process did not foreclose the additional purpose of incorporating the chemicals into the final product when the pulp was pressed into paper.

The record does not support NISCO's argument that it purchased the limestone for the purpose of incorporating it into a co-product, the ash. In an email from NISCO's former business manager, Johnny Botley, to the school board's tax audit manager, Cathey Fetus, Mr. Botley stated (emphasis added):

The true nature of the ash as an incidental by-product that cannot be seen as co-product is evidenced in the original Partnership Agreement, which briefly provides for monitoring the volume and movement of the ash. It states on page 76 that income from the sale of ash will first be credited against the cost of power and energy generation. It then states that inventory will be assessed. "However, no value will be attributed to the inventory in the financial statements." The Agreement then states if the cost of disposing of the ash is expected to exceed the revenue from the sale of the ash, then the anticipated excess cost would be accrued to the financial statements.

Dr. Daryl Burckel, a tenured professor at McNeese State University, testified in the area of tax and cost accounting. He was experienced in business evaluation, financial analysis, and he had been a financial officer for industrial and construction companies. He essentially confirmed that NISCO did not treat the ash as a co-product. Dr. Burckel testified that in his review of over 900 pages of documents, he found no indication that NISCO performed any analysis to determine what impact changing the limestone would have on the ash product. By definition, he characterized the ash as an incidental by-product that was saleable, and he pointed out that the sale of the ash constituted less than one percent (1%) of NISCO's sale of electricity. The ratio of electricity sales to ash sales in the taxable period was almost one hundred to one. Consequently, he stated that by definition the ash would be considered a by-product. Dr. Burckel testified that the purchase of the limestone was for the purpose of complying with DEQ and EPA permit requirements in controlling the sulfur emissions.

Upon being asked more than twenty times by NISCO's attorney at trial to agree that NISCO "also had a purpose and a will and an intent to make and sell ash," Dr. Burckel answered (emphasis added):

Dr. Burckel's analysis under the purpose element of the three-prong test regarding taxability is in line with the jurisprudence. Faced with arguments similar to NISCO's herein, the supreme court in Vulcan stated as follows:

Vulcan, 414 So.2d at 1199 (emphasis added).

Dr. Burckel further testified that the Partnership Agreement clearly stated that the purpose of the venture was constructing, owning, operating, and controlling electric power generating facilities, without any mention of producing ash. He further testified that the Agreement's reference at the end of the "purpose" paragraph regarding "conducting any activities related thereto," harkened back to the purpose stated at the beginning of the paragraph, which was designing, constructing, owning, operating, and controlling the electric power generating facilities. He further indicated that the ash was considered an incidental by-product because, while its production could be anticipated and planned for, the relative sales value rendered it incidental; and because "no one would undertake a production process with the sales of the byproduct alone."

Sandi Boyles, NISCO'S business manager, was asked this precise question:

Based upon the evidence in the record, NISCO's contentions regarding the purchase of limestone for the purpose of producing ash do not survive a full analysis under the test enunciated in International Paper as developed through its predecessors, Traigle and Vulcan. Accordingly, we affirm the trial court's judgments finding that NISCO's purchases of sand and limestone are subject to sales and use tax, and not exempt or excluded under the further processing statute.7

Attorney Fees

NISCO contends that the trial court erred in failing to award NISCO attorney fees in its suit no. 2013-2661 against the Parish. Louisiana Revised Statutes La. R.S. 47:337.13.1(B)(1) provides that "the prevailing party in a dispute, contest, or other controversy involving the determination of sales and use tax due shall be entitled to reimbursement of attorney fees and costs, not to exceed ten percent of the taxes, penalties, and interest at issue...." Because NISCO is not the prevailing party, this issue is moot.

Penalties

NISCO contends that the trial court erred in imposing penalties against NISCO in both of NISCO's suits against the Parish, nos. 2010-3564 and 2013-2661, asserting that NISCO's failure to pay the taxes timely was based upon a good faith belief that the purchases were excluded from taxation. Louisiana Revised Statutes 47:337.71 of the Uniform Local Sales Tax Code (ULSTC) provides:

NISCO argues that the ULSTC applies and takes the opposition to task for its citation of pre-2003/ULSTC cases; then NISCO itself proceeds to cite cases from 1986 through 2002. According to the clear wording of the above statute, waiver of the penalty is in the province of the collector, and it is permissive, not mandatory. We find no merit in NISCO's position.

V.

CONCLUSION

Based upon the foregoing, we affirm the trial court judgments rendered on June 2, 2014, in these four consolidated cases. Costs of this appeal are assessed against NISCO.

AFFIRMED.

CONERY, J., dissents and assigns reasons.

CONERY, J., dissenting.

The central issue in these four consolidated cases is whether NISCO's purchase of limestone used in its manufacture of electricity, steam, and ash should be excluded from sales tax pursuant to La.R.S. 47:301(10)(c)(i)(aa), expressly referred to by the supreme court as the "further processing exclusion." Int'l Paper Inc. v. Bridges, 07-1151 (La.1/16/08), 972 So.2d 1121, 1128. The statute at issue providing for the exclusion states, "The term `sale at retail' does not include sale of materials for further processing into articles of tangible personal property for sale at retail." La.R.S. 47:301(10)(c)(i)(aa) (emphasis added). Because a tax exclusion is at issue, the statute must be liberally construed in favor of the taxpayer and against the State (LDR) and Parish (CPSS), herein collectively referred textually as "Tax Collectors." Harrah's Bossier City Inv. Co., LLC v. Bridges, 09-1916 (La.5/11/10), 41 So.3d 438. The trial court and majority incorrectly interpreted the law as though the exclusion in question was a tax exemption and construed the "exemption" narrowly in favor of the Tax Collectors. I submit their decisions were wrong as a matter of law and respectfully dissent.

For many years prior to the audits at issue, the Tax Collectors treated limestone used in NISCO's manufacturing process to reduce sulfur emissions in the production of electricity, steam, and ash as a raw material subject to the further processing exclusion, thus excluding NISCO's purchase of limestone from sales tax. The CFB technology employed by NISCO in its manufacture of electricity, steam, and ash required the use of limestone and was contemplated by NISCO from the inception of its April 28, 1988 partnership agreement for production of those products. NISCO's facility was converted from natural gas to the CFB technology it now uses in 1992, as originally planned. That technology incorporates the use of petcoke as opposed to natural gas as fuel for the boilers used in the process. As correctly noted by the majority, limestone is required to reduce the emissions of sulfur from the petcoke burned in the boilers as fuel, and in the process, the limestone is simultaneously processed into an ash. The ash is the result of a combination of the carbon and oxygen from the limestone and the sulfur from the petcoke, which results in a mixture of calcium oxide and calcium sulfate ash. There is a ready market for the ash, one of the products to be sold as planned from the beginning. Neither the CFB technology, nor the law applicable to the further processing exclusion, La.R.S. 47:301(10)(c)(i)(aa), has changed since 1992. What did change was the decision by the Tax Collectors in this case to tax the limestone used in the manufacturing process beginning with audits dating back to the tax year 2005.

The trial court in its judgment, and cryptic reasons for ruling, affirmed by the majority, found, "It is also undisputed that limestone in any form, or its component parts, is not found in the steam and electricity produced" by NISCO. The trial court further stated, "Just because the ash is an incidental byproduct of the [CFB] process, its production, even in combination with the production of steam and electricity, does not in and of itself permit NISCO to claim the benefit of the further processing tax exclusion on its purchase of limestone."

Respectfully, the trial court and majority misconstrued the law applicable to a tax exclusion in this case. In affirming, the majority states, "Here, NISCO seeks to be exempt from paying sales taxes on its $46 million purchase of sand and limestone[.]" To the contrary, it is the Tax Collectors who are bringing this suit and the Tax Collectors who must bear the burden of establishing that the raw materials used in NISCO's manufacturing process are not subject to the tax exclusion provided by the legislative act in question. This case, essentially, is about statutory construction.

The trial court and the majority have determined that since the ash, one of the three products produced in the manufacturing process and sold by NISCO, is not the primary product sold by NISCO, and is not as economically profitable as electricity and steam, then the limestone purchased by NISCO and required to be used in its process is not subject to the further processing exclusion and is subject to sales tax. The undisputed record, however, supports NISCO's argument that NISCO always contemplated sale of the ash as one of the products produced for resale, along with electricity and steam, and continued to develop its market for its ash product. Since 1996 through today, NISCO has sold 100% of its ash output to LA Ash. According to the record, it is estimated that NISCO sells approximately 600-800 pounds of ash daily and some 200,000 to 250,000 tons annually. Ash is clearly more than just a "by product" of NISCO's manufacturing process. It is especially clear, and not subject to dispute, that ash is one of the products, plural, produced for resale in the manufacturing process, though admittedly, not the primary or most profitable product.

Statutory Interpretation

In McLane Southern, Inc., 11-1141, pp. 5-7 (La.1/24/12), 84 So.3d 479, 483, the Louisiana Supreme Court succinctly stated the requirements for the judicial interpretation of statutes:

Tax exclusions are to be liberally construed in favor of the taxpayer and strictly construed against the taxing authority. In Harrah's, the supreme court explained the difference between a tax exemption and a tax exclusion as follows:

Harrah's, 41 So.3d at 446 (footnote omitted).

Our courts have continued to apply the principle of statutory construction that, "Taxing statutes must be strictly construed against the taxing authority; where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is to be adopted." Cleco Evangeline, LLC v. La. Tax Com'n, 01-2162, p. 8 (La.4/3/02), 813 So.2d 351, 356.

Therefore, the task of the trial court was to apply the law as stated by the legislature and enlightened by the jurisprudence interpreting Louisiana's taxation of goods sold at retail.

Applicable Law

Louisiana Revised Statutes 47:302(A) states in pertinent part, "There is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein." (Emphasis added.)

The definition for "sale at retail" is found in La.R.S. 47:301(10)(a)(i), which provides, in pertinent part, "Solely for the purposes of the imposition of the state sales and use tax, "retail sale" or "sale at retail" means a sale to a consumer or to any other person for any purpose other than for resale as tangible personal property." (Emphasis added.)

As previously indicated, La.R.S. 47:301(10)(c)(i)(aa), expressly referred to as the "further processing exclusion," further clarifies, "The term `sale at retail' does not include sale of materials for further processing into articles of tangible personal property for sale at retail." (Emphasis added.) Int'l Paper Inc., 972 So.2d at 1128.

Under either statute, the ash in this case is clearly a product manufactured for resale as tangible personal property.

The regulations adopted by the Department of Revenue also require that the Tax Collectors give a broad or liberal interpretation in favor of the taxpayer. Louisiana Administrative Code, Title 61, Part I, § 4301 entitled, "Uniform State and Local Sales Tax Definitions," provides under section 4301(A) in pertinent part:

(Emphasis added.)

Louisiana Administrative Code, Title 61, Part I, § 4301(C) further provides under the definition of "Retail Sale or Sale at Retail" the following:

(Emphasis added.)

Clearly, the ash produced in this case also meets the definition contained in the regulation, tangible personal property for subsequent sale at retail. See La.R.S. 47:301(10)(c)(i)(aa). There is no "primary purpose test" or "economic benefit test" in either the statute or regulation. The controlling supreme court jurisprudence requires a liberal interpretation in favor of the taxpayer and specifically rejects the "primary purpose" test espoused by appellees. See Int'l Paper, 972 So.2d 1121; Harrah's, 41 So.3d at 438.

In International Paper, the supreme court stated that, "`Sale at retail' under La.R.S. 47:301(10)(a)(i) can take on different meanings, depending upon the taxing authority involved and/or the product(s) being sold." Int'l Paper, 972 So.2d at 1128. The supreme court then conducted an exhaustive review of the history of the "further processing exclusion." See La. R.S. 47:301(10)(c)(i)(aa). The issue in International Paper involved a process called "short sequence bleaching," in which chemicals or raw materials were used to bleach the brown color from pulp in order to produce a lighter color suitable for certain paper production. The chemicals or "Raw Materials" used in the bleaching process were sodium chlorate, hydrogen peroxide, and elemental oxygen. See Int'l Paper, 972 So.2d 1121. The Board of Tax Appeals found in favor of International Paper and excluded all of the "Raw Materials" from taxation based on the further processing exclusion, as those "Raw Materials" were used in the eventual production of the lighter colored paper products it sold. The second circuit reversed on appeal, finding that a further test, the "primary purpose test" had to be applied. See Int'l Paper, 972 So.2d at 1126-27.

The supreme court then reversed the appellate court and held:

Id. at 1133 (emphasis added).

In International Paper, the supreme court then concluded that the inclusion of a primary purpose analysis applied by the appellate court was an improper expansion of its prior rulings in Traigle v. P.P.G. Ind. Inc., 332 So.2d 777 (La.1976) and Vulcan Foundry, Inc. v. McNamara, 414 So.2d 1193 (La.1982):

Int'l Paper, 972 So.2d at 1135 (footnotes omitted) (emphasis in original).

In International Paper, the supreme court specifically found that the application of the further processing exclusion does not require that "the exact chemical/physical compositions of the raw materials[] must appear in the end products, nor does the law suggest that the primary purpose for the purchase of these raw materials must be their incorporation into the end products." Int'l Paper, 972 So.2d at 1133. The supreme court in International Paper reaffirmed the three-part test from its prior rulings, and specifically rejected the primary purpose test utilized by the appellate court in that case in its ruling. See Int'l Paper, 972 So.2d 1121.

Notably, the supreme court in International Paper specifically used the word "products," plural, in discussing the "further processing exclusion," and stated, "Accordingly, to be excluded from sales and use tax, that the raw materials must have been purchased for the purpose of incorporation within the end products, as the raw materials must be material for the further processing of the final products produced." Int'l Paper, 972 So.2d at 1135 (second emphasis added). NISCO's manufacturing process produces three products, electricity, steam, and ash, and buys and uses limestone as a necessary component to produce those final three products.

The supreme court in Tin, Inc. v. Washington Parish Sheriff's Office, 12-2056 (La.3/19/13), 112 So.3d 197, n. 2 (citations omitted), again applied the three part test adopted in International Paper in connection with the further processing exclusion referenced in La.R.S. 47:301(10)(c)(i)(aa), and stated:

(Emphasis added.)

Again, the supreme court used the word products, plural. It is clear from the supreme court's decisions in International Paper and Tin, Inc., that products purchased for sale at retail are deemed to be an exclusion from the imposition of sales taxes. Further, a tax exclusion such as this one at issue is to be "construed liberally in favor of the taxpayers and against the taxing authority" as found in Harrah's, 41 So.3d at 446. A tax exemption, on the other hand, is "strictly construed in favor of the State and `must be clearly and unequivocally and affirmatively established' by the taxpayer." Id. at 446. In this case, we are by supreme court definition dealing with a tax exclusion.

The Tax Collectors also argue that NISCO's cost for the purchase of the limestone far outweighs the sale of the end product, the ash, on the retail market, the "economic benefits argument." Therefore, the further processing exclusion, for economic reasons, should not apply to NISCO's purchase of limestone. Though an excellent point, such policy arguments should be presented to the legislature so that the tax exclusion provided for by the statute may be narrowed and further defined by that body. In International Paper, 972 So.2d at n. 13, the supreme court recognized that the legislative intent was made clear:

Since the legislative resolution and the supreme court decision in 2008, the legislature has met eight times, including this year, when the legislature was especially active in seeking additional revenue sources. The legislature has not chosen to amend La.R.S. 47:301(10)(c)(i)(aa) to add the primary purpose test or an "economic benefit test," or otherwise narrow the further processing tax exclusion in any way. We must apply the further processing exclusion broadly in favor of the taxpayer and against the taxing authorities. The trial court and the majority failed to do so and, in my view, committed legal error as to a matter of statutory interpretation. This court must interpret the statute in accordance with legislative intent and long standing court precedent, recognizing that tax exclusions must be "construed liberally in favor of the taxpayers and against the taxing authority," Harrah's, 41 So.3d at 446. A careful reading of La.R.S. 47:301(10)(c)(i)(aa) and La.Admin.Code tit. 61, pt. I, § 4301 reveals that neither the statute nor the Secretary's regulation contain any such restrictions espoused by appellees and approved by the trial court and the majority.

I dissent from the majority's decision to judicially interpret the controlling statute and regulation in such a narrow and restrictive manner contrary to legislative intent and settled supreme court precedent.

CONCLUSION

I would reverse the June 2, 2014 judgments of the trial court in favor of Cynthia Bridges, Secretary of the Department of Revenue for the State of Louisiana, against Nelson Industrial Steam Company in Docket Nos. 14-1250 and 14-1252.

I would also reverse the trial court's June 2, 2014 judgments in favor of the Calcasieu Parish School System Sales and Use Tax Department, in Docket Nos. 14-1251 and 14-1253 and order the Calcasieu Parish School System Sales and Use Tax Department, as Central Collector of Sales/Use Tax for the Parish of Calcasieu, and Rufus Fruge in his capacity as Administrator of the Calcasieu Parish School System Sales and Use Tax Department, to refund the taxes, penalties, and interest paid under protest by Nelson Industrial Steam Company in the following amounts:

Costs on appeal should be assessed to the Calcasieu Parish School System Sales and Use Tax Department, as Central Collector of Sales/Use Tax for the Parish of Calcasieu, and Rufus Fruge in his capacity as Administrator of the Calcasieu Parish School System Sales and Use Tax Department pursuant to La.R.S. 13:5112. Costs on appeal should not be assessed against the Louisiana Department of Revenue in accordance with La.R.S.13:4521.