FISCHER, S.J.:
¶ 1 In this appeal, we must determine whether a transfer of real property between affiliated business entities constitutes a "sale" for purposes of the Documentary Stamp Tax Act. We hold that the transfer of real property between affiliated corporations or transfers on behalf of the beneficial owner of real property are not taxable if any consideration paid does not exceed $100.
¶ 2 This case involves the conveyance of title to real property as a result of four real estate foreclosure proceedings. Chase filed each foreclosure case and was the successful bidder at each sheriff's sale. Therefore, Chase was entitled to a sheriff's deed to each of the properties. However, Chase did not take title. Instead, sheriff's deeds were granted to Chase's affiliated entities. The deeds were recorded with the respective county clerks. The grantees noted on the conveyances that the deeds were exempt from documentary taxes. And, no documentary taxes were paid.
¶ 3 The Counties contend the conveyances involved in this case are not exempt and filed this suit to collect the applicable documentary taxes. On November 28, 2011, the Counties filed their First Motion for Partial Summary Judgment. In its response, Chase argued that the Counties did not have standing to enforce the provisions of the DSTA and that the deeds at issue were exempt from documentary taxes. The district court granted the Counties' motion for partial summary judgment on February 11, 2013, and then certified "that an immediate appeal would materially advance the ultimate termination of this litigation." See Okla. Sup.Ct. R. 1.50, 12 O.S.2011, ch. 15, app. 1. We granted the Defendants' petition for certiorari to review the district court's interlocutory order.
¶ 4 The Defendants argue in this appeal that the order granting partial summary judgment should be reversed for two reasons: (1) the Counties lack standing to enforce the provisions of the DSTA; and (2)
¶ 5 Legal questions involving the district court's statutory interpretation of the DSTA are also subject to de novo review. Fulsom v. Fulsom, 2003 OK 96, ¶ 2, 81 P.3d 652, 654. The primary goal of statutory construction is to ascertain and apply the intent of the Legislature that enacted the statute. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d 302, 307.
¶ 6 The Documentary Stamp Tax Act imposes a tax on certain transfers of real property:
68 O.S.2011 § 3201(A). "`Sold' means a transfer of an interest for a valuable consideration, which may involve money or anything of value." 68 O.S.2011 § 3201(C)(1). "Consideration" is defined as "the actual pecuniary value exchanged or paid ... for the transfer or conveyance of an interest of realty...." 68 O.S.2011 § 3201(C)(3). When a sale of real property occurs, a documentary tax is levied on "the privilege of executing a `deed, instrument or writing' that effects transfers of `land, tenements and other realty.'" Johnston v. Oklahoma Tax Comm'n, 1972 OK 88, ¶ 9, 497 P.2d 1295, 1297. The tax is collected through the sale of documentary stamps provided by the Oklahoma Tax Commission (OTC) and sold by the county clerks. 68 O.S.2011 §§ 3203 and 3204. The county clerk is authorized to retain and deposit in the county general fund five percent of the first $0.55 of every $0.75 collected and the remaining $0.20 of each $0.75 collected. 68 O.S.2011 § 3204(B)(1) and (C). The balance is forwarded to the OTC. 68 O.S.2011 § 3204. However, certain transfers of real property are exempt from the documentary tax. See 68 O.S.2011 § 3202; Okla. Admin. Code § 710:30-1-9.
¶ 7 The facts dispositive of this appeal are established from two sources, the judgments in the foreclosure cases and the summary judgment record. The judgments in the foreclosure proceedings are now final and are not subject to collateral attack in this case "in the absence of fraud, mistake or collusion," none of which have been asserted with respect to the those judgments.
¶ 8 The district court orders confirming the sales recite that the properties were sold to Chase, that the sales were made in conformity with the statutes of Oklahoma and that at the hearing on the motions to confirm the sales Chase assigned all of its right, title and interest in the properties. In three of the proceedings, Chase assigned its interest to Homesales. Homesales is a wholly owned subsidiary of Chase. In the fourth foreclosure action involving property previously owned by Linda Gentry, Chase assigned its interest to the Federal National Mortgage Association (FNMA). FNMA was the beneficial owner of the Gentry property and Chase was acting as FNMA's agent in that foreclosure. At the direction of the district court and Chase, the sheriff executed deeds to Homesales and FNMA. The deeds state that they are exempt from documentary stamp tax pursuant to section 3202(13): "Any deed executed pursuant to a foreclosure proceeding in which the grantee is the holder of a mortgage on the property being foreclosed...." The Counties contend that no exemption from documentary stamp tax is available for the conveyances subsequent to Chase's oral assignment of its interest in the properties at the confirmation hearings. They filed this suit to enforce section 3201 and collect the documentary taxes they contend are due.
¶ 9 The initial issue raised by Chase is whether the Counties have standing to sue to collect unpaid documentary taxes. "Taxation is an exclusively legislative function that can be exercised only under statutory authority and in the manner specified by statute." State ex rel. Oklahoma Tax Comm'n v. Texaco Exploration & Prod., Inc., 2005 OK 52, ¶ 7, 131 P.3d 705, 707 (citing Gay v. Thomas, 1896 OK 67, 46 P. 578). Chase contends that only the OTC has statutory authority to enforce the DSTA and, therefore, the Counties do not have standing to prosecute this action. Chase specifically points to section 3205 of the DSTA: "The Oklahoma Tax Commission through the Documentary Stamp Tax Unit shall be responsible for the administration and enforcement of the taxes as imposed by Section 3201 of this title." Chase's argument depends on the construction of this language. "When the Legislature has clearly expressed its intent, the use of additional rules of construction are almost always unnecessary and a statute will be applied as written." Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶ 13, 33 P.3d at 307 (citations omitted). Here, the plain language of the statute states that the OTC is "responsible for the administration and enforcement" of the DSTA through the OTC's Documentary Stamp Tax Unit. 68 O.S. 2011 § 3205. The Counties argue, however, that nothing in the DSTA expressly states that the OTC is solely responsible for administration and enforcement or that county clerks are prohibited from filing enforcement actions. Construction of the DSTA is necessary to resolve these questions.
¶ 10 The Counties do not address the effect of section 3205 of the DSTA. They rely on their general authority to "sue and be sued." 19 O.S.2011 § 1. From this, the Counties conclude that they may exercise this authority and initiate judicial proceedings to prosecute violations of the DSTA because they are the governmental entities
¶ 11 First, it is the policy of this State, "to provide, so far as possible, uniform procedures and remedies with respect to all state taxes." 68 O.S.2011 § 201 (describing the purpose of the Uniform Tax Procedure Code). Unless expressly provided otherwise, the Uniform Tax Procedure Code "shall control and shall be exclusive." Id. The Legislature has vested in the OTC the authority to "enforce the provisions of [the Uniform Tax Procedure Code] and to promulgate and enforce any reasonable rules with respect thereto." 68 O.S.2011 § 203. Although the OTC is required to "coordinate with city and county governments to increase state and local sales and use tax collections through joint enforcement efforts," the OTC maintains "central administration" of such efforts. 68 O.S.2011 § 281. As later discussed in this Opinion, it does not appear the OTC and the Counties share the same view regarding the taxability of the conveyances at issue in this case. Uniform procedures and remedies for the assessment and collection of documentary taxes cannot be achieved if the results depend on the county in which the transaction occurred. "The construction placed on a statute by officers in the discharge of their duties ... which has been long acquiesced in, is a just medium for its judicial interpretation." Oklahoma Tax Comm'n v. Liberty Nat'l Bank & Trust Co., 1955 OK 208, ¶ 0, 289 P.2d 388 (syllabus 1). Only the OTC has been charged by the Legislature with developing and implementing uniform tax policy.
¶ 12 Second, the Counties' position conflicts with the general statutory procedure established by the Legislature for collecting unpaid taxes. That procedure begins with an administrative determination by the OTC that taxes are due and on certification of the debt, the entry of, in effect, a judgment for the taxes due. 68 O.S.2011 §§ 221 and 230. The OTC may also issue a tax warrant for unpaid taxes to a county sheriff. 68 O.S.2011 § 231. In either instance, the county clerk is charged with the ministerial task of filing the OTC's certification or warrant. Generally, the OTC's administrative process is a prerequisite to litigation. State ex rel, Oklahoma Tax Comm'n v. Texaco Exploration & Prod., Inc., 2005 OK 52, 131 P.3d 705 (OTC may not bypass the administrative process and file suit in district court except where a false or fraudulent report is filed with intent to evade taxes). When litigation is necessary, the Legislature requires that suit be filed "in the name of the State of Oklahoma, on relation of the Oklahoma Tax Commission." 68 O.S.2011 § 215(a). In none of these statutes is any authority granted to county clerks to sue to collect unpaid taxes.
¶ 13 The only governmental officer other than the general counsel of the OTC who is statutorily authorized to file suit to recover unpaid taxes is the Attorney General. 68 O.S.2011 § 250. If the Legislature has authorized the Attorney General to do so, it could have also provided similar authorization for county clerks. The fact that it did not supports the conclusion that the Legislature did not intend for counties to have direct enforcement authority to collect unpaid taxes. See McSorley v. Hertz Corp., 1994 OK 120, ¶ 19, 885 P.2d 1343, 1350-51 (omission of self-insurers from the list of those statutorily required to offer uninsured motorist coverage was evidence of legislative intent not to require self-insurers to offer uninsured motorist coverage). Nor can we conclude that this omission was inadvertent, at least with respect to the DSTA. The Legislature specifically addressed the county clerk's enforcement role in that context. If a county clerk becomes "aware" that a taxpayer has not or might not have paid the correct amount of
¶ 14 Third, rules promulgated by the OTC for the administration and enforcement of the DSTA confirm that county clerks do not have direct enforcement authority. See 68 O.S.2011 § 3205: "The Oklahoma Tax Commission shall prescribe such rules and regulations as it may deem necessary to carry out the purpose of Sections 3201 through 3206 of this title." Pursuant to this authority, the OTC promulgated rules "to facilitate the administration, enforcement, and collection of taxes and other levies enacted by the Oklahoma Legislature with respect to documentary stamps." Okla. Admin. Code § 710:30-1-1 (codified Dec. 30, 1991). Those rules were adopted by the Legislature and now "have the force of law" (75 O.S.2011 § 308.2(C)), subject to judicial review. 75 O.S.2011 § 306(C) ("Rules promulgated pursuant to the provisions of the Administrative Procedures Act are presumed to be valid until declared otherwise by a district court of this state or the Supreme Court."); Indep. Sch. Dist. No. I-20 of Muskogee County v. Okla. State Dep't of Educ., 2003 OK 18, 65 P.3d 612 (agency rule may be challenged pursuant to the declaratory judgment provision of 75 O.S. § 306). The OTC's rules very clearly describe the different roles of the OTC and the county clerks with respect to the collection of documentary taxes. Rule 710:30-1-10 sets out the "Duties and responsibilities of the county clerk." The Rule states: "County clerks are responsible for selling Documentary Stamps to the taxpayers and have the duty of accounting for the stamps to the Oklahoma Tax Commission." The county clerk's role in the enforcement of the DSTA is limited to two functions. "In order to make a correct determination of tax due, the county clerks have the duty to request taxpayers to produce satisfactory documentation which correctly discloses the value of the property." Okla. Admin. Code § 710:30-1-10(2). "If the taxpayer claims exemption from the payment of the documentary stamp tax, and there is no notation on the deed indicating the reason for the claiming of the exemption, the county clerk shall make a brief notation on the face of the deed indicating the reason for claiming the exemption." Okla. Admin. Code § 710:30-1-10(5). Rule 710:30-1-7 provides that if a taxpayer does not pay the necessary amount of documentary taxes "the Commission shall" send a proposed tax assessment to the taxpayer. The taxpayer can challenge that assessment by filing a protest with the Commission. However, no authority is provided in the OTC's rules for county clerks to decide a taxpayer's protest. Any protest "will be forwarded to the General Counsel's Office of the Oklahoma Tax Commission for disposition." Id.
¶ 15 The rules promulgated by the OTC and adopted by the Legislature for the enforcement of the DSTA provide that the county clerks have a subordinate and ministerial role in that process. "For the purpose of collecting the [documentary] stamp tax, the county clerks act as agents of the Oklahoma Tax Commission." Okla. Admin. Code § 710:30-1-10. The essential factor in any agency relationship is the principal's
¶ 16 Even though we find that the Counties do not have statutory authority to prosecute violations of the DSTA, that does not necessarily mean that they do not have standing to bring this case. Although the OTC has primary responsibility for administration and enforcement of the DSTA, it does not have ultimate authority to determine when documentary taxes are due. This Court is the final arbiter of disputed tax matters. Okla. Const. art. VII, § 4; 68 O.S. 2011 § 225 (taxpayer aggrieved by any order of the Tax Commission may appeal to Supreme Court), and § 3027(final orders from the Court of Tax Review may be appealed to the Supreme Court); Turner v. Oklahoma Tax Com'n, 1993 OK 77, 858 P.2d 433 (Legislature has made the Supreme Court the final arbiter of the meaning of tax statutes). Further, this Court has previously recognized the standing of parties to invoke this Court's jurisdiction and determine disputed tax matters even in the absence of statutory authority to do so. Oklahoma Tax Comm'n v. Smith, 1980 OK 74, 610 P.2d 794 (potential taxpayer could sue for declaratory relief where statutory remedy to sue for refund of tax paid was not available to challenge constitutionality of taxing statute before tax was due); Independent School District No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233 (abrogated in part by constitutional amendment) (school district could seek injunction preventing payment of tax refund and challenge exemption claimed by a taxpayer). Finally, this Court has long-recognized the availability of its equitable powers to protect the public treasury from unlawful dissipation or management by those officially charged with the care and custody of public funds. Fent v. Contingency Review Bd., 2007 OK 27, ¶ 8, 163 P.3d 512, 519 (citing Kellogg v. School Dist. No. 10 of Comanche County, 1903 OK 81, 74 P. 110). The question, therefore, is whether the Counties have demonstrated their standing to invoke the jurisdiction of Oklahoma courts in this case.
¶ 17 "`Standing' is the right to commence litigation, to take the initial step that frames legal issues for ultimate adjudication by a court or jury." State ex rel. Bd. of Regents v. McCloskey Bros., Inc., 2009 OK
Fent, 2007 OK 27, ¶ 7, 163 P.3d at 519 (citing Cities Serv. Co. v. Gulf Oil Corp., 1999 OK 16, ¶ 3, 976 P.2d 545, 547, and Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 8, 890 P.2d 906, 910). "The appropriate inquiry on a standing question is whether the plaintiff has in fact suffered injury to a legally protected interest as contemplated by statutory or constitutional provisions." Leavitt, 1994 OK 148, ¶ 9, 890 P.2d at 911. Standing is an aspect of justiciability, and "focuses on the party seeking to get [a] complaint before the court and not on the issues tendered for determination. In standing problems the inquiry posed is whether the party invoking the court's jurisdiction has a legally cognizable interest in the outcome of the tendered controversy." Application of State ex rel. Dep't of Transp., 1982 OK 36, ¶ 6, 646 P.2d 605, 609.
¶ 18 This Court dealt with a similar issue in Independent School District No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233. Glass involved a suit by a school district challenging a refund payable as the result of a tax exemption claimed by a taxpayer. The taxpayer's property was located in the school district and granting the exemption would directly reduce the revenue received by the district. Cf., Indep. Sch. Dist. No. 5 of Tulsa County v. Spry, 2012 OK 98, 292 P.3d 19 (school districts lacked standing to challenge voucher program where funds at issue were part of legislative appropriation rather than taxes paid by school district taxpayers). The board of tax-roll corrections granted the taxpayer's request and the school district sued to enjoin payment of the refund. As in this case, the taxing statute in Glass did not authorize enforcement by the school district. That remedy was available only to the taxpayer or the county assessor. See 68 O.S. Supp.1974 § 2479. Nonetheless, this Court held that injunctive relief was available because the statutory remedy was not. "We agree with the District that it has standing to seek injunctive relief. The District has an interest in the subject matter, the capacity to sue, and the power to protect and prevent the wrongful disposition of revenues." Glass, ¶ 11, 639 P.2d at 1238.
¶ 19 Even though the school district in Glass was ultimately unsuccessful in preventing the tax refund, as relevant to the standing issue in this case, Glass is indistinguishable. The Counties have the capacity to sue. The statutory remedy for direct enforcement of the DSTA is not available to the Counties. However, the relief sought by the Counties is not limited to collection of the allegedly unpaid documentary taxes. The Counties also seek an "[a]djudication by the Court that documentary stamp taxes are due pursuant to 68 O.S. § 3201 [and] ... that exemptions from the purchase of documentary stamps made by the defendants pursuant to 68 O.S. § 3201 were [not] lawful." When statutory relief is inadequate, equitable relief may be available. See Oklahoma Tax Comm'n v. Smith, 1980 OK 74, 610 P.2d 794. The non-monetary relief sought by the Counties in this case is authorized by Oklahoma's declaratory judgment law, Title 12 O.S.2011 §§ 1651 to 1657. "A determination of rights, status, or other legal relations may be obtained by means of a pleading seeking that relief alone or as incident to or part of a petition, counterclaim, or other pleading seeking other relief...." 12 O.S.2011 § 1652.
¶ 20 The proof required for the Counties' to establish their right to pursue declaratory relief is set out in Gordon v. Followell, 1964 OK 74, ¶ 8, 391 P.2d 242, 245:
Here, the Counties are entitled to $0.2275 of each $0.75 in documentary stamps sold.
The exemptions claimed with respect to the conveyances at issue in this case deprive the Counties of the documentary tax related to the transactions involved in this appeal. And, a determination that the Defendants are claiming the exemptions in violation of the DSTA is likely to result in the Counties' receipt of the taxes for which they filed this case. "A violation of a state statute is an injury to the State and its citizens. A continuing violation is an irreparable injury for which injunctive relief is available." Glass, ¶ 10, 639 P.2d at 1237. We agree with the Counties; they have a "legally cognizable" interest in the outcome of this litigation and have established their standing to pursue declaratory relief. "If standing exists, the case must proceed on the merits." Id.
¶ 21 The judgments in the foreclosure cases establish that Chase was the holder of the promissory note and mortgage in each of the four foreclosure proceedings or a person entitled to enforce those instruments. Therefore, it is clear that if the sheriff's deeds in each case had conveyed the property to Chase, Chase would have been entitled to the mortgage foreclosure exemption and no documentary taxes would be due. "The tax imposed by Section 3201 of this title shall not apply to: ... Any deed executed pursuant to a foreclosure proceeding in which the grantee is the holder of a mortgage on the property being foreclosed...." 68 O.S.2011 § 3202(13). The Counties do not argue otherwise. Their claim to documentary taxes is based on the fact that the sheriff's deeds were not granted to Chase but to its corporate subsidiary, Homesales, or in the case of the Gentry property to Chase's principal, FNMA. To prove that documentary taxes are due as a result of these conveyances, the Counties must first show that the properties were "sold," which requires proof that there was a "transfer of an interest for a valuable consideration." 68 O.S.2011 § 3201(C)(1). Second, the Counties must prove that the sales are not exempt. Our disposition of the first issue makes consideration of the second unnecessary.
¶ 22 Jim Walter Homes, Inc. v. County Clerk of Okfuskee County, 1986 OK CIV APP 35, 734 P.2d 849 (approved for publication by the Supreme Court), cited by the district court, addressed similar issues.
¶ 23 Closer to the analysis required to resolve this case is Berkeley Sav. & Loan Ass'n of Newark N.J. v. United States, 301 F.Supp. 22 (D.C.N.J.1969), also interpreting the Federal Documentary Stamp Tax Act. In Berkeley, the savings and loan argued that a conveyance from the Veterans Administration (VA) of legal title to property securing repayment of installment contracts it purchased from the VA did not trigger the federal documentary tax imposed on deeds by which real property is sold because the installment contracts required the savings and loan to convey that title to the equitable owner, the installment contract obligor, after payment of a certain amount of the installment contract balance. The Court agreed.
Berkeley, 301 F.Supp. at 25. Cf., United States v. Niagara Hudson Power Corp., 53 F.Supp. 796, 801 (S.D.N.Y.1944) (transfer of legal title from one wholly owned subsidiary corporation to another wholly owned subsidiary as the result of a merger of the two subsidiary corporations did not require federal documentary stamp taxes). Like the Jim Walter Homes Court, we find these federal cases helpful in determining when a sale occurs for purposes of documentary taxes.
¶ 24 However, there are two reasons why Jim Walter Homes does not resolve the issues in this case. First, the taxable transaction in Jim Walter Homes was based on the sheriff's deed to the homebuilder. According to the Counties, the potentially taxable transaction in this case is not between the sheriff and deed grantee, Homesales or Gentry, but between the entity entitled to receive a tax exempt sheriff's deed, Chase, and the entity that was granted the deed, its wholly owned subsidiary, Homesales, or in the case of the Gentry property, Chase's principal, FNMA. Second, the Court of Appeals holding that exchange of a foreclosure judgment for the sheriff's deed constitutes consideration for a taxable sale cannot be extended to this case. Although the definition of "sold" in the version of the DSTA applied in Jim Walter Homes is identical to the definition in section 3201, the Court of Appeals did not address the meaning of the statutory definition of "consideration" added in 1983 and now part of the current version of the DSTA.
68 O.S. Supp.1983 § 5101(C)(3), renumbered from § 5101 by Laws 1988, ch. 162, § 160.
¶ 25 This Court has not previously determined what constitutes "consideration" and a
¶ 26 This Court's focus on the substantive nature of the underlying transaction has been followed by the OTC in its administration and enforcement of the DSTA as well. In Documentary Stamp Tax, P-92-222, 1995 WL 557131 (Okla. Tax Comm'n 1995), the OTC found that a quit claim deed granted by a former husband to effectuate the terms of a divorce decree awarding property to his former wife was not a sale as defined in 68 O.S.1991 § 3201(B) because it conveyed no interest beyond the wife's beneficial ownership already established by the divorce decree. A similar result was reached in 1994 interpreting the definition of "sold" in the 1985 version of the documentary tax statutes. See Documentary Stamp Tax, P 9200060, 1994 WL 848080 (Okla. Tax Comm'n Jan. 6, 1994). In Documentary Stamp Tax, P 8800313, 1989 WL 251450 (Okla. Tax Comm'n Sept. 28, 1989), a partnership owned by family members transferred real property to the individuals at the request of their lender and in order to obtain refinancing. After the refinancing was obtained the members transferred the properties back to the partnership. The OTC concluded no sale occurred because no consideration was exchanged, the intent of the transfers was to effectuate the purpose of the partnership not to conclude a sale, therefore, the partnership did not purchase the properties and no documentary tax was due. The OTC relied on Berkeley Savings & Loan, supra, to reach that result. Finally, by rule, the OTC has determined that conveyances "from a constituent corporation to the new or continuing corporation" as the result of a merger or consolidation are exempt from documentary taxes. Okla. Admin. Code § 710:30-1-9(7).
¶ 27 An interest in real property is "sold" for purposes of the DSTA if the grantee of a "deed, instrument, or writing" pays "actual pecuniary value" for the conveyance. 68 O.S. 2011 § 3201. If that consideration is paid,
¶ 28 Consequently, evidence that the consideration for the conveyances at issue in this case exceeded $100 is essential to the Counties' claim that the properties were "sold" and that documentary taxes are due. Therefore, the fact that Homesales and FNMA were granted deeds in these foreclosure proceedings does not resolve the documentary tax issue. Nor is that issue resolved by the fact that certain post-foreclosure conveyances were made in the Gentry case. Further examination of each transaction is required to determine whether the interest conveyed was "sold" for purposes of the DSTA. Without proof that a sale occurred, the Counties cannot demonstrate, in the first instance, that documentary taxes were due and that they are entitled to judgment. If the moving party has not addressed all material facts, or if one or more of such facts is not supported by acceptable evidentiary material, summary judgment is not proper. Spirgis v. Circle K Stores, Inc., 1987 OK CIV APP 45, ¶ 10, 743 P.2d 682, 685 (approved for publication by the Oklahoma Supreme Court).
¶ 29 In three of the foreclosure cases, Chase assigned its interest to Homesales during the confirmation hearings. The order confirming the sheriff's sale in each of those cases recites that Chase "in open court acknowledged receipt from Homesales, Inc. of good and valuable consideration...." The summary judgment record shows that Homesales was a wholly owned subsidiary of Chase at the time of the transfer. The record does not show the amount of the "good and valuable consideration" exchanged between the parent corporation and its subsidiary. Because there is nothing in the summary judgment record to show whether the consideration paid by Homesales exceeded the statutory minimum, the district court could not, and we cannot determine whether the property involved in these transactions was "sold" for purposes of section 3201(A) of the DSTA.
Evers v. FSF Overlake Assocs., 2003 OK 53, ¶ 18, 77 P.3d 581, 587 (citations omitted). Because the Counties have not established that the properties conveyed to Homesales were "sold," they have not shown that documentary taxes are due and that they are entitled to judgment with respect to these conveyances.
¶ 30 Based on the documents in the summary judgment record, Chase is entitled to the inference that FNMA purchased the Gentry loan from the loan originator, Irwin Mortgage Corporation, that Chase acquired the rights to service this loan from FNMA and that Chase acted as FNMA's agent in the foreclosure action. At the confirmation hearing in the Gentry foreclosure, Chase also assigned its interest in the property to FNMA "for good and valuable consderations [sic]." However, the summary judgment record regarding the Chase/
Oral Roberts Univ. v. Oklahoma Tax Comm'n, 1985 OK 97, ¶ 10, 714 P.2d 1013, 1015 (citing McCain v. State Election Bd., 1930 OK 323, 144 Okla. 85, 289 P. 759). This Court followed that well-settled rule in Johnston v. Oklahoma Tax Comm'n, supra, adopting the OTC's practice of calculating documentary taxes on the cash paid plus the amount of any purchase money mortgage granted as consideration for a conveyance of real property. And, we do so again here with respect to the OTC's Rule regarding conveyances between agents and principals. The Counties have failed to show that the Gentry property was not purchased with FNMA's money and that Chase did not assign its interest at the confirmation hearing as agent for its principle, FNMA. Consequently, the Counties are not entitled to judgment based on the Chase/FNMA transaction.
¶ 31 Subsequent to taking title to the Gentry property, FNMA executed a Special Warranty Deed transferring the property to Homesales. Homesales then executed a Quit Claim Deed conveying the property to Irwin Mortgage. Both of these deeds recite that the consideration was "TEN Dollars ($10.00) and other good and valuable consideration." The deeds also state that the transactions are exempt from documentary taxes pursuant to Title 68 O.S. § 3202(3): "Deeds which without additional consideration, confirm, correct, modify or supplement a deed previously recorded." Chase argues that Homesales acted as an intermediary to facilitate a repurchase of the Gentry loan by Irwin Mortgage pursuant to a preexisting agreement with FNMA. Cf., Berkeley, 301 F.Supp. 22, (regarding obligation to repurchase loan in case of default as reflecting the parties' intent not to affect a sale). That agreement, however, is not in the record. More importantly, the summary judgment record does not show the amount of the "other good and valuable consideration" paid for these conveyances. In the absence of that evidence, the Counties have failed to address all material facts necessary to establish their right to judgment based on the special Warranty Deed and Quit Claim Deed.
¶ 32 Although the Counties are not authorized to prosecute violations of the Documentary Stamp Tax Act, they do have standing to challenge the exemptions from documentary taxes claimed in this case. However, because the Counties have failed to prove that consideration in excess of $100 was paid for any of the conveyances the district court found were taxable, they have failed to prove that any of the properties subject to those conveyances was "sold" for purposes of section 3201 of the Documentary Stamp Tax Act. Absent proof that a sale occurred, the Counties are not entitled to judgment. Because the Counties have failed to prove that a sale occurred, we do not address the validity of any exemption claimed with respect to the conveyances at issue in this case.
¶ 33 REIF, V.C.J., WATT, EDMONDSON, GURICH, and FISCHER, S.J., concur.
¶ 34 KAUGER, J., concurs in part; dissents in part.
¶ 35 WINCHESTER, TAYLOR, and COMBS (by separate writing), JJ., dissent.
¶ 36 COLBERT, C.J., recused.
COMBS, J., with whom TAYLOR, J., joins, dissenting.
¶ 1 In this cause concerning alleged violations of the Documentary Stamp Tax Act (DSTA), 68 O.S.2011 §§ 3201-3206, the majority determines that although the plaintiffs do not have authority to enforce the provisions of the DSTA, the plaintiffs have standing to seek declaratory relief under Oklahoma's declaratory judgment statute, 12 O.S. 2011 §§ 1651-1657. Because I disagree with the majority's assertion that the plaintiffs possess standing in this cause, I respectfully dissent.
¶ 2 The question of whether a party possesses standing has traditionally been formulated by this Court as whether a party has sufficient interest in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Indep. School Dist. No. 5 of Tulsa v. Spry, 2012 OK 98, ¶ 2, 292 P.3d 19; Estate of Doan v. First Nat'l Bank and Trust Co. of Tulsa, 1986 OK 15, ¶ 7, 727 P.2d 574; Indep. School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, ¶ 8, 639 P.2d 1233. At a minimum, standing is composed of three elements, which are: 1) a legally protected interest which must have been injured in fact, i.e., an injury which is actual, concrete and not conjectural in nature; 2) a causal nexus between the injury and the complained of conduct; and
¶ 3 I do not dispute that the plaintiffs have alleged sufficient injury to a protected interest and a causal nexus to the defendants' conduct exists to satisfy the first and second required elements of standing. The loss of revenue to the plaintiffs due under 68 O.S 2011 § 3204 and caused by defendants' claimed exemptions from the purchase of documentary stamps results in actual, pecuniary harm. However, I do not believe that the plaintiffs have demonstrated the third requirement: redressability.
¶ 4 The specific harm to the plaintiffs is pecuniary. Due to the actions of the defendants, the plaintiffs are not getting the share of revenue from the sale of documentary stamps they believe they are owed pursuant to the DSTA, 68 O.S.2011 § 3204, because the defendants allegedly wrongly claimed an exemption. As the majority's opinion states, the plaintiffs "filed this suit to enforce section 3201 and collect the documentary taxes they contend are due." Majority Opinion, at ¶ 8.
¶ 5 However, the first section of the majority's opinion is dedicated to a discussion of why the plaintiffs are not entitled to enforce the provisions of the DSTA, because the authority to do so lies with the Oklahoma
¶ 6 Fundamentally, an assessment of standing is not a decision on the case's merits. Rather, it is a determination whether the plaintiff is the proper party to seek adjudication of the asserted issue. Gulf Oil. Corp., 1999 OK 16, ¶ 5, 976 P.2d 545; Toxic Waste Impact Group v. Leavitt, 1994 OK 148, ¶ 9, 890 P.2d 906. The asserted issues in this cause are whether taxes are due pursuant to the DSTA and whether exemptions from those taxes were validly claimed. Based on the majority's analysis in part one of its opinion, the plaintiffs are
¶ 7 The majority asserts that the plaintiffs inability to sue to enforce the DSTA, and hence, their inability to receive the monetary relief they desire by doing so, does not defeat their standing to seek some other form of relief. Specifically, the majority likens this cause to Indep. School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, 639 P.2d 1233. In Glass, a school district challenged a refund payable as the result of a tax exemption claimed by a taxpayer whose taxable personal property was located in the district. 1982 OK 2, ¶¶ 1-3, 639 P.2d 1233. The school district sought a temporary and permanent injunction to prevent payment of the refund to the taxpayer, after the refund request was granted by the Tulsa County Board of Tax-Roll Corrections. Glass, 1982 OK 2, ¶ 6, 639 P.2d 1233. The taxpayer argued that the school district lacked standing to sue, as 68 O.S. Supp.1974 § 2479 authorized only the taxpayer and the County Assessor to seek review of the Board's decision. Glass, 1982 OK 2, ¶ 8, 639 P.2d 1233.
¶ 8 This Court determined that the school district possessed standing to seek an injunction to protect the wrongful disposition of its revenues, though in the end the Court also determined the school district was not entitled to an injunction. Glass, 1982 OK 2, ¶ 11, 639 P.2d 1233. The majority in this cause asserts that Glass supports the position that the plaintiffs have standing, if not to enforce the DSTA, then to seek some other form of relief. However, Glass is distinguishable from the instant cause in more than one respect.
¶ 9 First, the school district in Glass never sought a statutory remedy it was not entitled to invoke. Rather, the school district in Glass prevailed on the question of standing because it sought equitable relief in the form of an injunction. This Court specifically stated that had the school district attempted to invoke 68 O.S. Supp.1974 § 2479, the taxpayer's position that the district did not have standing would have merit. This Court stated:
Glass, 1982 OK 2, ¶ 8, 639 P.2d 1233 (footnotes omitted) (emphasis added).
¶ 11 Having determined in this cause that the plaintiffs do not have authority to sue to enforce the provisions of the DSTA, the majority circumvents the problem of redressability by determining that the plaintiffs have standing to seek non-monetary relief pursuant to Oklahoma's declaratory judgment statute, 12 O.S.2011 §§ 1651-1657, noting that when statutory relief is inadequate, equitable relief may be available.
¶ 12 Title 12 O.S.2011 § 1651 sets the parameters for the issuance of declaratory judgments in Oklahoma, and provides:
A declaratory judgment is merely a type of remedy, not an independent cause of action, and it does not extend the jurisdiction of a court where it would not otherwise exist. Conoco, Inc. v. State Dept. of Health of State of OK, 1982 OK 94, ¶ 18, 651 P.2d 125. Specifically, this Court stated in Conoco, Inc.:
Conoco, Inc., 1982 OK 94, ¶ 18, 651 P.2d 125.
Declaratory actions are meant to supplement rather than supersede other types of litigation. Restatement (Second) of Judgments § 33, comment C (1981).
¶ 13 This Court has long relied upon the axiom that what may not be done directly should not be allowed to be done indirectly. In Re Oklahoma Capitol Imp. Authority, 2012 OK 99, ¶ 12, 289 P.3d 1277; Large v. Acme Engineering and Mfg. Corp., 1990 OK 34, ¶ 8, 790 P.2d 1086; Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶ 15, 679 P.2d 1296. A determination by this Court that the plaintiffs can seek a declaratory judgment that documentary stamp taxes are due from the defendants pursuant to 68 O.S. § 3201 and that the exemptions claimed
¶ 14 Declaratory relief serves no purpose other than to aid the plaintiffs in their quest to redress their original harm caused by alleged violations of the DSTA. Since the plaintiffs cannot sue to enforce the DSTA, a declaratory judgment that the DSTA has in fact been violated by the defendants does not help the plaintiffs.
¶ 15 Pursuant to the majority opinion, the plaintiffs will not be permitted to enforce the DSTA even if they received a declaratory judgment that the DSTA was violated by the defendants. This leads back to the redressability of the underlying harm giving rise to the plaintiffs cause: there is no likelihood that the plaintiffs' injury (their loss of revenue) will be redressed by a favorable court decision; there is only speculation. See J.P. Morgan Chase Bank, Nat'l Assoc. v. Eldridge, 2012 OK 24, ¶ 7, 273 P.3d 62; Cities Service Co. v. Gulf Oil Corp., 1999 OK 16, ¶ 3, 976 P.2d 545.
¶ 16 Because the plaintiffs' harm is not redressable through declaratory relief or otherwise, they do not have standing to sue to enforce the DSTA, and they do not have standing to seek a declaratory judgment the only purpose of which is to further that end. The majority opinion would remand this cause back to the district court for a determination on the merits of the applicability of the DSTA, placing a heavy evidentiary burden on the plaintiffs to prove that the properties in question were sold within the meaning of 68 O.S.2011 § 3201. The resulting further litigation and expense is unnecessary and should be avoided, because the plaintiffs cannot attain the relief they seek. Because the plaintiffs lack standing to enforce the DSTA and lack standing to seek a declaratory judgment in furtherance of that end, it is not necessary to address the merits of the controversy. For this reason, I respectfully dissent.
