CALCASIEU PARISH SCHOOL BOARD SALES USE DEPARTMENT v. NELSON INDUSTRIAL STEAM COMPANY (2020)

Writ application granted. See per curiam.

Writ granted. Ash is an incidental byproduct under the statutory definition set forth by Louisiana Revised Statutes 47:301(c)(i)(aa)(III)(aaa), as recently amended by the legislature. The court of appeal too narrowly construed the meaning of “incidental,” limiting the amendment's application only to those products that were unintentional or unplanned. However, within the broader context of the statute, it is clear the legislature included within the scope of the term “byproduct” any product that is secondary to a primary product when it is sold for a price less than the cost of its materials. The ash at issue is plainly secondary to the electricity, and the sales price of the ash is less than the cost of the limestone. As such, the purchase of limestone, which is a material further processed into ash, “shall not be deemed to be sales for further processing and shall be taxable.” Id. We remand to the court of appeal for consideration of remaining assignments of error, which were pretermitted, including an analysis of whether the amendment is a new tax or an increase in a tax because the court of appeal's holding thereon was based on an erroneous interpretation of Act 3.

FOOTNOTES

FOOTNOTE.  

Genovese, J., would deny. Boddie, J., would deny.