Marco Petroleum Industries, Inc. v. Commissioner, New Hampshire Department of Safety

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2014-117

MARCO PETROLEUM INDUSTRIES, INC.

v.

COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF SAFETY

Argued: November 13, 2014
Opinion Issued: May 12, 2015

Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III on
the brief, and Jason R.L. Major orally), for the petitioner.

Joseph A. Foster, attorney general (John J. Conforti, assistant attorney
general, on the brief and orally), for the respondent.

BASSETT, J. The petitioner, Marco Petroleum Industries, Inc. (Marco),
appeals an order of the Superior Court (McHugh, J.) affirming a decision of the
respondent, the Commissioner of the New Hampshire Department of Safety
(DOS). Following an administrative hearing, DOS determined that Marco owed
the State $155,070.71, including interest and penalties, due to Marco’s failure
to pay the New Hampshire road toll on fuel imported into the state. On appeal,
Marco argues that DOS and the trial court erred by finding that Marco was
required to pay the road toll because: (1) it was not a “distributor” of motor
fuels under RSA 259:21 (2014); (2) it did not “sell” motor fuel under RSA
260:32 (2014) (amended 2014); and (3) it would be unfair to require Marco to
pay the New Hampshire road toll because it had already paid the
Massachusetts fuel tax. We affirm.

Before addressing the substance of Marco’s claims, we provide, for
context, an overview of the relevant fees assessed by government entities on the
sale of motor fuels. The New Hampshire Motor Vehicle Road Toll Law, see RSA
260:30 (2014), imposes a road toll “upon the sale of each gallon of motor fuel
sold by distributors thereof.” RSA 260:32. A “distributor” is defined as:

any person, wherever resident or located, who imports or causes to
be imported motor fuel into the state, and also any person who
refines, distills, prepares, blends, manufactures, or compounds
motor fuel within this state . . . . Bringing motor fuel into the state
in the fuel supply tank attached to the engine of a vehicle or
aircraft shall not be considered importing.

RSA 259:21. The road toll is “imposed as a recompense for the use of the
highways.” Rymes Heating Oils v. Comm’r, N.H. Dep’t of Safety, 151 N.H. 472,
473 (2004) (quotation omitted). “In other words, the road toll fee constitutes a
charge for subjecting roads to a given amount of destructive use or wear and
tear.” Id. (quotation omitted). New Hampshire law makes it unlawful “for any
person to sell or use motor fuel upon which the road toll . . . has not been paid,
unless the person is a holder of a valid license to engage in business as a
distributor of motor fuels.” RSA 260:36 (2014).

Similarly, Massachusetts imposes a per gallon “fuel tax” that is paid by
the purchaser at the time the fuel is sold. See Mass. Gen. Laws ch. 64A (2011
& Supp. 2014). As with the New Hampshire road toll, the Massachusetts fuel
tax is a fee paid by “motor carriers operating their motor vehicles in
Massachusetts . . . to support the State’s highway system.” American Trucking
v. Secretary of Admin., 613 N.E.2d 95, 98 (Mass. 1993).

All of the states in the contiguous United States, including New
Hampshire and Massachusetts, are parties to the International Fuel Tax
Agreement (IFTA). See Illinois Cent. R.R. v. Tennessee Dept. of Revenue, 969 F.
Supp. 2d 892, 894 (M.D.Tenn. 2013). The IFTA is a “multi-jurisdictional
agreement that is intended to encourage cooperation in the administration and
collection of motor fuel use tax.” May Trucking Co. v. Oregon Dept. of Transp.,
388 F.3d 1261, 1262 (9th Cir. 2004) (quotations omitted). The IFTA does not
impose a tax; “[r]ather, its member jurisdictions impose the motor fuel taxes,
and [the] IFTA permits the uniform administration and collection of those taxes
as they pertain to multi-state carriers.” Id. at 1262-63. “Under [the] IFTA, an
interstate motor carrier pays all its state fuel taxes quarterly to the ‘base
jurisdiction’ in which it registers as a licensee under [the] IFTA.” Id. at 1263.
“The base jurisdiction then forwards the appropriate tax amounts to each

2
individual state in which the motor carrier operates.” Id. “That arrangement
prevents a motor carrier from having to make multiple tax payments to the
different states in which it operates.” Id.

The material facts are undisputed. On multiple occasions between June
2008 and March 2011, Marco contracted with Irving Oil Terminals, Inc. (Irving)
for the purchase of diesel fuel. These purchases totaled 603,138 gallons. Each
purchase included the transfer of fuel by Irving, at its facility located in Revere,
Massachusetts, into trucks operated by P.S. Marston, LLC (Marston). Marston
and Marco share a business address in North Hampton, New Hampshire.
Marston transported the fuel from Revere to Marco’s facility in North Hampton,
New Hampshire. Marston invoiced Marco for the deliveries, and Marco paid
those bills. The bill of lading issued by Irving for each sale was identical except
for the date of sale, amount of fuel purchased, and the invoice amount. Also in
connection with each purchase, Marco paid the Massachusetts fuel tax to
Irving, and Irving then forwarded the funds to Massachusetts.

In 2012, DOS audited Marco’s “Motor Fuel Distributor” account. DOS
concluded that Marco “imported motor fuel into [New Hampshire] without a
Motor Fuel Distributor license and therefore failed to report and pay the
required [New Hampshire] road toll” on the 603,138 gallons of fuel purchased
from Irving. DOS calculated that Marco owed the State $155,070.71. Marco
challenged the audit by DOS and requested an administrative hearing.

DOS held a hearing in September 2012. Marco argued that it was not
liable for the New Hampshire road toll because it was not a “distributor” of
motor fuels but, rather, the end purchaser. The DOS road toll audit manager
asserted that Marco acted as a “distributor” without a current Motor Fuel
Distributor license or IFTA license and unlawfully imported motor fuel into New
Hampshire. DOS rejected Marco’s argument, finding that Marco acted as a
distributor of motor fuel and that the assessment was proper. Marco appealed
to the superior court.

The parties filed cross-motions for summary judgment. Marco argued
that, because Irving hired Marston to deliver the fuel to Marco in New
Hampshire, Irving, rather than Marco, acted as the distributor for purposes of
the New Hampshire road toll. In response, DOS argued that Irving merely
transferred the fuel to Marston in Massachusetts, and that Marco was the
distributor because, under RSA 259:21, Marco “import[ed] or cause[d] to be
imported,” the fuel into New Hampshire. The court agreed with the ruling by
DOS, concluding that “Marco did purchase fuel on which a road toll had not
been paid, and it transported the fuel across the State’s highways.” This
appeal followed.

On appeal, Marco argues that Irving, not Marco, acted as a “distributor”
of motor fuels under RSA 259:21 and 260:32, and that DOS should recover the

3
New Hampshire road toll from Irving. DOS counters that Marco caused the
fuel to be imported into New Hampshire and, as such, acted as a “distributor”
and is responsible for paying the New Hampshire road toll. Marco next argues
that, because it used the fuel only in its own vehicles, there was no “sale” of
motor fuel by Marco, which is required to trigger payment of the road toll under
RSA 260:32. DOS responds that Marco failed to preserve this argument
because Marco raises the issue for the first time on appeal. Alternatively, DOS
maintains that the statutory definition of “sale” includes “any use of motor fuel
by a distributor.” RSA 259:95 (2014). Finally, Marco contends that it is unfair
to require it to pay the New Hampshire road toll when there is no dispute that
it has already paid the Massachusetts fuel tax on the same gallons of fuel, and
that DOS should seek to recover the road toll from Massachusetts. DOS
counters that it is undisputed that the New Hampshire road toll has not been
paid, and, if Marco had the proper distributor licenses, the fuel tax paid by
Marco — which Irving then paid to Massachusetts — could have been
reallocated to New Hampshire in accordance with the IFTA.

In reviewing the trial court’s ruling on cross-motions for summary
judgment, we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Bovaird v. N.H. Dep’t of Admin. Servs., 166 N.H. 755, 758
(2014). If our review of that evidence discloses no genuine issue of material
fact and if the moving party is entitled to judgment as a matter of law, then we
will affirm the grant of summary judgment. Id. In this case, the superior court
found that “[t]he parties do not dispute the material facts; they dispute the
legal import of those facts.” We review the trial court’s application of the law to
the facts de novo. Id.

This appeal requires interpretation of certain provisions of the Motor
Vehicle Road Toll Law. “In matters of statutory interpretation, this court is the
final arbiter of the intent of the legislature as expressed in the words of a
statute considered as a whole.” Rymes Heating Oils, 151 N.H. at 474
(quotation omitted). “We begin by reviewing the plain and ordinary meaning of
the words used and consider them not in isolation but in context of the overall
statute.” Id. “In doing so, we are better able to discern the legislature’s intent,
and therefore better able to understand the statutory language in light of the
policy sought to be advanced by the entire statutory scheme.” Id. (quotation
omitted).

Marco first argues that DOS erred because, contrary to the finding by
DOS, it was Irving — rather than Marco — that acted as a “distributor” as
defined in RSA 259:21. In relevant part, the statute states: “‘Distributor,’ . . .
shall mean any person, wherever resident or located, who imports or causes to
be imported motor fuel into the state . . . .” RSA 259:21. Accordingly, if Marco

4
“import[ed] or cause[d] to be imported” fuel into New Hampshire, then Marco
acted as a “distributor” and was required to pay the New Hampshire road toll.

Marco contends that its designation as the “consignee” in the bill of
lading created a destination contract requiring delivery to Marco in New
Hampshire. See RSA 382-A:7-102(a)(3) (Supp. 2014) (defining “consignee” as
the “person named in a bill of lading to which or to whose order the bill
promises delivery”). Marco asserts that, because the bill of lading was a
destination contract, Irving held title to the fuel when it entered New
Hampshire, and, therefore, Irving was the distributor. DOS counters that
Marco received title to the fuel in Massachusetts. However, DOS also argues
that, regardless of when and where title passed from Irving to Marco, it was
Marco that “caused the import” of the fuel into New Hampshire. We agree with
DOS on this latter point.

The statutory definition of “distributor” does not require a determination
of which entity had title at the time when the fuel was transported across the
state line into New Hampshire. See RSA 259:21. We agree with DOS that,
when title to the fuel passed to Marco has little, if any, relevance to the specific
issues before us, which is whether Marco or Irving “import[ed] or cause[d] to be
imported” the fuel into New Hampshire. Id. Additionally, we note that Marston
— the entity that physically transported the fuel into New Hampshire — is not
a party to this action, and neither party argues that Marston acted as the
distributor in this instance. Instead, Marco argues that Marston was acting on
behalf of Irving, and DOS argues that Marco hired Marston to deliver the fuel.

The sequence of events relating to each sale, together with the
undisputed evidence in the record, supports the conclusion that Marco
“import[ed] or cause[d] to be imported” the fuel into New Hampshire. It is
undisputed that Marco was the end user of the fuel, and that Marston
transported the fuel to Marco. After Marston delivered the fuel to Marco,
Marston billed Marco for the delivery. Marco does not dispute the fact that
Marco, in fact, paid those invoices, rather than Irving. The record does not
contain any documentation demonstrating that Irving and Marston had an
agreement to deliver the fuel to Marco in New Hampshire.

Marco’s argument is, in essence, that its designation as “consignee” on a
bill of lading created a destination contract, which, standing alone, means that
Irving had title to the fuel when it entered New Hampshire, and, therefore, that
Irving “import[ed] or cause[d] to be imported” the fuel into New Hampshire. We
are not persuaded. To the contrary, we agree with the determination made by
both DOS and the trial court — that Marco imported or caused to be imported
motor fuel into New Hampshire, and that, Marco acted as a “distributor” as
defined by RSA 259:21.

5
 Marco next argues that, regardless of whether it acted as a distributor, it
was not required to pay the New Hampshire road toll because it did not “sell”
the motor vehicle fuel but was “merely the end user.” See RSA 260:32. DOS
counters that Marco failed to preserve this issue for appeal. Alternatively, DOS
argues that, even if we assume that this argument is preserved, the term “sale”
as used in the Motor Vehicle Road Toll Law does not require a transaction
involving a third party.

Assuming, without deciding, that this argument is preserved, we agree
with DOS. The road toll is imposed “upon the sale of each gallon of motor fuel
sold by distributors thereof. The road toll shall be collected by the distributor
from the purchaser and remitted to the state . . . .” Id. (emphasis added). The
term “sale” is defined in the Motor Vehicle Road Toll Law to mean “any transfer
of ownership and any use of motor fuel by a distributor for the propulsion of
vehicles on the ways.” RSA 259:95 (2014) (emphasis added). This expansive
definition is entirely consistent with the stated purpose of the Motor Vehicle
Road Toll Law: “to secure the motor fuel road toll . . . with respect to the sale
or consumption of motor fuels.” RSA 260:31 (2014) (emphasis added).
Moreover, because the road toll is “a charge for subjecting roads to a given
amount of destructive use or wear and tear,” Rymes Heating Oils, 151 N.H. at
473 (quotation omitted), including the “use of motor fuel” in the definition of
“sale” is logical. Here, because Marco has acknowledged that it purchased “the
fuel for its own internal use,” and it has never argued the fuel was used
elsewhere than on the roads of New Hampshire, we conclude that Marco’s use
of the fuel falls squarely within the definition of “sale” in RSA 259:95.

We also reject Marco’s argument that it is “grossly inequitable and
unfair” to require it to pay the New Hampshire road toll when it has already
paid the Massachusetts fuel tax. This arguably unfair situation arose only
because Marco did not avail itself of the interstate mechanism in place — the
IFTA — to prevent just this type of double payment.

An IFTA licensee “pays all its state fuel taxes quarterly to the ‘base
jurisdiction’ in which it registers as a licensee under the IFTA.” May Trucking
Co., 388 F.3d at 1263. “The base jurisdiction then forwards the appropriate
tax amounts to each individual state in which the motor carrier operates.” Id.
Additionally, in New Hampshire, it is unlawful “for any person to sell or use
motor fuel upon which the road toll . . . has not been paid, unless the person is
a holder of a valid license to engage in business as a distributor of motor fuels.”
RSA 260:36. Although, by its terms, RSA 260:32 does not make it unlawful for
Marco to operate without a license — provided that it pays the road toll — it is
undisputed that the New Hampshire road toll has not been paid on the fuel
Marco imported into New Hampshire.

There is also no dispute that, at the time of the purchases, Marco did
“not hold a current Motor Fuel Distributor license or a current international

6
fuel tax . . . license.” In fact, at the administrative hearing, Marco conceded
that it had “an IFTA issue.” If, at the time of the purchases, Marco had a New
Hampshire Motor Fuel Distributor license and an IFTA license, it would have
been required to document where the fuel was used. See International Fuel
Tax Agreement Procedures Manual P550.100 (rev. ed. 2015) (“The licensee
must maintain complete records of all motor fuel purchased, received, and
used in the conduct of its business.”); see also RSA 260:38 (2014) (amended
2014). Under those circumstances, Marco would have paid the fuel tax to its
base jurisdiction, which, in turn, would have allocated a proportional share to
each state based on fuel consumption. See May Trucking Co., 388 F.3d at
1263. Given the IFTA framework, we are not persuaded by Marco’s contention
that “Irving erroneously paid Massachusetts’ road toll tax on the fuel . . . rather
than paying the State of New Hampshire’s road toll tax.” It defies common
sense to charge Irving with the knowledge of where Marco — an unlicensed
out-of-state distributor — consumed the fuel that it purchased from Irving. As
a distributor, Marco had the obligation, pursuant to RSA 260:32, to collect and
remit the road toll to New Hampshire. Marco, therefore, must bear the
ultimate responsibility for non-payment of the New Hampshire road toll.

Finally, we are not persuaded by Marco’s argument that DOS — rather
than Marco — has the responsibility to recover the Massachusetts fuel tax that
Marco paid to Irving. The Massachusetts statute provides otherwise: it states
that it is Marco’s responsibility to seek from Massachusetts any reimbursement
to which it may be entitled. See Mass. Gen. Laws ch. 64A, § 7 (2011)
(providing that the individual seeking a reimbursement must file an affidavit
and supporting documentation with the commissioner of revenue). Indeed,
Marco acknowledged at oral argument that, had it filed a timely claim in
Massachusetts, it could have sought a refund of the fuel tax that it paid in
Massachusetts. See id. The fact that Marco, due to its own actions or
inaction, may now be time-barred from obtaining a refund from Massachusetts
does not render the assessment of the New Hampshire road toll against Marco
“grossly inequitable and unfair.”

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.


Although RSA 260:32 states that the road toll shall be collected by the distributor “from the
purchaser,” because a user of fuel such as Marco qualifies as a distributor under RSA 259:21, we
construe RSA 260:32 to mean that the road toll is to be collected from the purchaser only if, in
fact, there has been such a sale.

7