Powerex Corp. v. Department of Revenue

40 March 26, 2015 No. 11

11

Powerex Corp. v. Dept. of Rev. 357

March 26, Or

2015

IN THE SUPREME COURT OF THE

STATE OF OREGON

POWEREX CORPORATION,

Plaintiff-Respondent,

v.

DEPARTMENT OF REVENUE,

State of Oregon,

Defendant-Appellant.

(TC 4800; SC S060859)

En Banc

On appeal from the Oregon Tax Court.*

Henry C. Breithaupt, Judge.

Argued and submitted May 1, 2014.

Marilyn Harbur, Assistant Attorney General, Salem,

argued the cause and filed the briefs for appellant. With her

on the briefs was Ellen F. Rosenblum, Attorney General.

Eric J. Coffill, Morrison & Foerster LLP, Sacramento,

California, argued the cause and filed the brief for respon-

dent. With him on the brief were Jenny Choi and Carol Vogt

Lavine, Gladstone, Oregon.

Scott G. Seidman, Tonkon Torp LLP, Portland, filed the

briefs for amicus curiae Portland General Electric Company.

With him on the briefs was Michael J. Millender.

KISTLER, J.

The judgment of the Tax Court is affirmed in part and

reversed in part. The case is remanded for proceedings con-

sistent with this opinion.

______________

*  20 OTR 338 (2011).

Cite as 357 Or 40 (2015) 41

Powerex filed for a refund of taxes on the ground that the Department of

Revenue had incorrectly applied the “sales factor” to Powerex’s natural gas and

electricity sales. The Tax Court ruled that Powerex’s natural gas sales were not

delivered or shipped to a purchaser within this state and thus should not have

been included in the numerator of the sales factor. Additionally, the Tax Court

ruled that, because electricity is not “tangible personal property” and because the

greater part of the income-producing activity had not occurred here, Powerex’s

electricity sales should be not be attributed to Oregon. Held: (1) Powerex’s sales of

natural gas occurred in Oregon if the gas was “delivered or shipped to a purchaser

* * * within this state” regardless of “the f.o.b. point and other conditions of the

sale.” In this case, the gas was shipped to a purchaser in California, not Oregon.

The contractual “points of delivery” in Malin, Oregon, on which the department

relied to show that the sales occurred here, were “other conditions of the sale”

that functioned substantially same as an “f.o.b point.” (2) Electricity constitutes

“tangible personal property” for the purposes of ORS 314.665. (3) Because the

Tax Court did not find where the electricity was shipped or delivered to the pur-

chaser, the case is remanded for the Tax Court to make the requisite findings.

The judgment of the Tax Court is affirmed in part and reversed in part. The

case is remanded for proceedings consistent with this opinion.

42 Powerex Corp. v. Dept. of Rev.

KISTLER, J.

Powerex wholesales natural gas and electricity to

purchasers throughout the western part of North America.

The question in this case is how much of Powerex’s income

may Oregon tax. Under the terms of a uniform statute that

Oregon has adopted, the answer to that question turns on

the extent to which Powerex’s sales of natural gas and elec-

tricity were “in this state.” ORS 314.665(1). For the reasons

explained below, we agree with the Tax Court that none of

Powerex’s natural gas sales occurred in Oregon. However,

we do not necessarily agree with the Tax Court that none

of Powerex’s electricity sales occurred in Oregon. The Tax

Court did not reach an issue—whether the electricity that

Powerex sold was “delivered or shipped to a purchaser * * *

within this state”—that, as we explain below, controls

whether Powerex’s electricity sales were “in this state.” See

ORS 314.665(2)(a) (stating that standard). We accordingly

affirm the Tax Court’s judgment in part, reverse it in part,

and remand the case for further proceedings.

Before setting out the facts in this case, we first

describe briefly the statutory framework in which this case

arises. In 1965, Oregon adopted the Uniform Division of

Income for Tax Purposes Act (UDITPA), codified at ORS

314.605 to 314.675, to apportion income earned by unitary

businesses that operate within and without Oregon. See Or

Laws 1965, ch 152; Crystal Communications, Inc. v. Dept.

of Rev., 353 Or 300, 302, 297 P3d 1256 (2013).1 Generally,

UDITPA uses the percentage of a multistate company’s sales

within Oregon (the “sales factor”) to determine the percent-

age of the company’s business income that Oregon may tax.

See ORS 314.650. Specifically, for each tax year, a company’s

sales “in this state” are divided by the company’s total sales

to arrive at the sales factor. ORS 314.665(1). Currently, the

company’s total income is multiplied by the sales factor to

1

ORS 314.280 governs the apportionment of income earned by public util-

ities and financial institutions. UDITPA governs the apportionment of income

earned by other types of businesses. See Crystal Communications, Inc., 353 Or

at 302. Throughout this litigation, the Oregon Department of Revenue has taken

the position that UDITPA governs the apportionment of Powerex’s income. We

accept that assumption for the purposes of deciding the department’s claims on

appeal. We express no opinion on whether ORS 314.280, if applicable, would lead

to a different result.

Cite as 357 Or 40 (2015) 43

determine the percentage of the company’s income that is

subject to taxation in Oregon. ORS 314.650.2

This case turns on whether Powerex’s sales of elec-

tricity and natural gas occurred “in this state.” The rules

for making that determination differ depending on whether

the sales are sales of “tangible personal property” or other

types of sales. ORS 314.665(2), (4).3 Generally, sales of tan-

gible personal property are “in this state” if “[t]he property

is delivered or shipped to a purchaser * * * within this state

regardless of the f.o.b. point or other conditions of the sale.”

ORS 314.665(2)(a). Generally, sales of something other than

tangible personal property are “in this state” if the greater

part of the activity that produced the income from those

sales occurred within Oregon. ORS 314.665(4).

In the Tax Court, the parties agreed that natural

gas is tangible personal property. They disagreed whether,

in selling natural gas, Powerex shipped or delivered natural

gas to purchasers “within this state.” The Tax Court found

that Powerex shipped gas to purchasers in other states

through a hub in Malin, Oregon, where two pipelines inter-

sect. It concluded that, in doing so, Powerex had not shipped

or delivered gas to purchasers within Oregon.

Regarding Powerex’s sales of electricity, the parties

disagreed whether electricity is tangible personal property.

The Tax Court ruled that electricity is not tangible personal

property and that, because the greater part of the activity

that produced the income from Powerex’s electricity sales

occurred in British Columbia, those sales were not attribut-

able to Oregon. The Tax Court accordingly concluded that,

2

Oregon law currently provides that only the sales factor is used to deter-

mine the percentage of a multistate company’s income that is taxable in Oregon.

ORS 314.650. For the tax years at issue here, a company’s income was multiplied

by a weighted average of three factors (the sales factor, the property factor, and

the payroll factor) to determine the percentage of its income that was taxable

in Oregon. See, e.g., ORS 314.650 (2001); ORS 314.650 (1999). However, only the

sales factor is at issue on this appeal, and we discuss only that factor.

3

UDITPA divides sales into two categories: “sales of tangible personal

property” and “[s]ales, other than sales of tangible personal property.” ORS

314.665(2), (4). The latter category is not limited to sales of intangible property

but also includes other types of sales, such as the sale of services. See Jerome R.

Hellerstein, Walter Hellerstein, and John A. Swain, 1 State Taxation ¶ 8.06[3][b]

(3d ed 2000 & Supp 2014) (discussing allocation of sales other than sales of tan-

gible personal property).

44 Powerex Corp. v. Dept. of Rev.

for the tax years at issue here, neither Powerex’s sales of

electricity nor its sales of natural gas were “in this state.”

On appeal, the Oregon Department of Revenue (the

department) challenges both of the Tax Court’s rulings. We

begin with the Tax Court’s ruling that the natural gas that

Powerex sold was not shipped or delivered to purchasers

“within this state.” We then turn to its ruling that electric-

ity is not tangible personal property.

I.  NATURAL GAS

Natural gas is transmitted through interstate and

intrastate pipelines organized around regional “market

centers” or “hubs.”4 The concept of a market center or hub

(for our purposes, the terms are synonymous) emerged as

a result of a 1992 Federal Energy Regulatory Commission

order, which required that “interstate natural gas pipeline

companies transform themselves from buyers and sellers of

natural gas to [become] strictly gas transporters.” “Market

centers and hubs evolved to provide new gas shippers with

many of the physical capabilities and administrative sup-

port services formally handled by the interstate pipeline

company as ‘bundled’ sales services.” Among other things,

market centers and hubs provide “transportation between

and interconnections with other pipelines, and the physical

coverage of short-term receipt/delivery balancing needs.”5

In 2003, there were 37 market centers or hubs in the

United States and Canada. Two of those hubs, Stanfield and

Malin, were in Oregon. In 2003, Powerex sold natural gas

to retailers in California through the hub in Malin. When

Powerex filed its Oregon tax returns for the 2003 tax year,

it treated those sales as sales “in this state” for the purpose

of calculating the “sales factor”—i.e., for the purpose of cal-

culating the percentage of Powerex’s total income that was

attributable to Oregon. In 2006, Powerex filed a claim for a

refund for the 2003 tax year. In its filing, Powerex explained

4

The following facts regarding the shipment of natural gas are taken from a

stipulated exhibit. Neither side offered any testimony on that subject.

5

Depending on the market center or hub’s infrastructure, market centers

or hubs can balance the supply of and demand for natural gas by, among other

things, parking or loaning natural gas on a short-term basis, storing it on a longer

term basis, and entering into other “short-term interruptible arrangement[s].”

Cite as 357 Or 40 (2015) 45

that it had shipped the natural gas to the hub at Malin,

Oregon “where title transferred to the purchaser.” Its refund

claim stated that the gas then “entered into PG&E’s system

for transport into California.”6

Before the Tax Court, the department argued that,

because the contractual point of delivery was in Malin,

Oregon, Powerex “delivered or shipped [the natural gas] to

a purchaser * * * within this state.” Powerex responded that

the department’s focus on the contractual point of delivery

missed the mark. In Powerex’s view, Malin merely served

as the point at which gas was transferred from one pipeline

to another on its way to a purchaser in California. Powerex

argued that, because it shipped the gas to a purchaser in

California, it did not deliver or ship it to a purchaser within

Oregon.

The Tax Court agreed with Powerex. It found that

the gas was being transmitted over pipelines that functioned

as common carriers. It explained that both the majority of

cases interpreting other states’ analogues to ORS 314.665(2)

and the purpose of that rule supported the conclusion that

“where delivery by a seller is to a common carrier for fur-

ther shipment an ultimate destination approach is fol-

lowed.” Because the ultimate destination in this case was

California, the Tax Court concluded that Powerex’s natu-

ral gas sales were not sales “to a purchaser * * * within this

state.” See ORS 314.665(2)(a).

On appeal, the department does not dispute that the

natural gas that Powerex sold was destined for California. It

also does not question the Tax Court’s implicit finding that

two pipelines connected at the “hub” in Malin so that the

natural gas that Powerex delivered through one pipeline to

Malin flowed from that pipeline into another pipeline on its

way to the purchaser in California. The department argues,

however, that the hub at Malin was critical for two reasons:

(1) the natural gas contracts that Powerex entered into spec-

ified Malin as the “contractual point of delivery” and (2) they

6

The Tax Court found that the gas that Powerex sold was shipped or deliv-

ered to purchasers outside of Oregon. Powerex stated that the natural gas was

shipped or delivered to purchasers in California, and we assume that California

was the gas’s ultimate destination.

46 Powerex Corp. v. Dept. of Rev.

also specified that title to the gas passed from Powerex to

the purchaser at Malin. The department reasons that, given

those two facts, we should conclude that the natural gas was

“delivered or shipped to [the] purchaser” in Malin, Oregon,

not in California.

In considering the department’s argument, we look

initially to the text, context, and history of ORS 314.665(2).

See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

We begin with the text of that statute, which provides, in

part:

“Sales of tangible personal property are in this state if:

“(a)  The property is delivered or shipped to a purchaser,

other than the United States, within this state regardless

of the f.o.b. point or other conditions of the sale[.]”

ORS 314.665(2)(a).7 The text of subsection (2)(a) divides into

two parts. The first part provides that a sale of tangible per-

sonal property is “in this state if [t]he property is delivered

or shipped to a purchaser * * * within this state.” The sec-

ond part provides that the determination where property is

shipped or delivered to the purchaser should be made with-

out regard to “the f.o.b. point or other conditions of the sale.”

Textually, the first part of the statute asks a sim-

ple question: Where was the property shipped or delivered

to the purchaser? See Arthur D. Lynn, Jr., The Uniform

Division of Income for Tax Purposes Act, 19 Ohio St LJ

41, 50 (1958) (noting the “conceptual simplicity” of the

Uniform Act formulation).8 In asking that question, ORS

314.665(2)(a) uses the passive voice. The question under

that statute is not who shipped or delivered the property

to the purchaser but where the property was shipped or

delivered to the purchaser.

7

The subsection quoted above states the general rule. ORS 314.665(2)

(b) states two exceptions to that rule. ORS 314.665(2)(b) addresses sales to the

United States and sales to purchasers in states where the taxpayer is exempt

from taxation. It provides that sales are within this state if the goods are shipped

from an office, warehouse, or other place of storage in this state and either the

purchaser is the United States Government or the taxpayer is not taxable in the

state where the goods are shipped or delivered to the purchaser.

8

We refer to the Oregon statute as UDITPA. We refer to the uniform act

on which Oregon based UDITPA as the Uniform Act. ORS 314.665(2)(a) tracks

essentially verbatim the corresponding section of the Uniform Act.

Cite as 357 Or 40 (2015) 47

The second part of the statute reinforces that con-

clusion. It provides that the determination of where prop-

erty is shipped or delivered to the purchaser should be made

“regardless of the f.o.b. point or other conditions of the sale.”

We assume that the rule of ejusdem generis applies so that

the phrase “other conditions of the sale” shares the same

qualities as the specific term that precedes it, “the f.o.b.

point.” See Baker v. City of Lakeside, 343 Or 70, 76, 164 P3d

259 (2007). That is, the phrase “other conditions of the sale”

refers to those conditions of the sale that are similar to “the

f.o.b. point.” See id. The primary conclusion that we draw,

at this point, from the second part of the text is that it rein-

forces what the first part says. The question where tangible

property was delivered or shipped to the purchaser should

not turn on legal technicalities, such as the f.o.b. point;

rather, the question calls for a more practical answer.

In addition to the text of ORS 314.665(2)(a), we also

consider its context. See Stevens v. Czerniak, 336 Or 392,

401, 84 P3d 140 (2004) (explaining that the context for inter-

preting a statute’s text includes the preexisting common

law and the statutory framework within which the law was

enacted). ORS 314.665 is modeled on a uniform law that the

Commissioners on Uniform State Laws proposed in 1957

and that Oregon adopted in 1965. Compare Or Laws 1965,

ch 152, § 17, with Uniform Act, § 16 (1957). In 1957 and also

in 1965, the meaning of the phrase “the f.o.b. point” was well-

established. See Samuel Williston, 2 The Law Governing the

Sale of Goods §§ 280-280b (rev ed 1948); Laurence Vold, The

Handbook of the Law of Sales § 33 (2d ed 1959).

The initials f.o.b. stand for the words “free on board”

and were originally used in connection with the shipment of

goods by sea. Williston, 2 The Law of Sales § 280. “[T]he pri-

mary significance of the words was that the seller [wa]s bound

to put the goods free of expense on board a vessel for trans-

portation to the buyer.” Id. The same rule also applied when

goods were shipped by rail or other forms of transportation,

although questions could arise regarding the extent of the

seller’s obligation. See id. Williston explained that, to avoid

those questions, the parties could specify more precisely the

point to which the seller was bound to deliver the goods. For

48 Powerex Corp. v. Dept. of Rev.

example, “[w]here the contract is for a sale f.o.b., the place of

destination, undoubtedly the seller contracts to get the goods

to that place, and this involves getting cars in which to load

the goods when transportation is to be by rail * * *.” Id. § 280a.

Williston explained that two presumptions attach to the f.o.b.

point. Id. § 280b. First, title to the goods passes at the f.o.b.

point. Id. Second, “the place where the goods are to be deliv-

ered f.o.b. is the place of delivery to the buyer.” Id.

That established definition of “the f.o.b. point”

informs the meaning of the first part of the statute, as an

example will illustrate. Suppose that a seller agrees to ship

goods by rail from Vancouver, Washington, to a purchaser

in Los  Angeles, California. Those goods could be shipped

f.o.b. Vancouver, f.o.b. Portland, or even f.o.b. Los  Angeles.

See id. at § 280a (explaining that even “though the expres-

sions f.o.b. the point of destination or some intermediate

point are less common [than f.o.b. the point of shipment],

such bargains are not infrequent”). Whichever f.o.b. point

the agreement specified would establish, as a condition of

the sale, the place where the seller was responsible for deliv-

ering the goods, the place where title passed to the buyer,

and the place of delivery to the buyer. See id. at §§ 280a,

280b. However, the text of ORS 314.665(2)(a), read in con-

text, makes clear that, for the purposes of determining the

“sales factor,” the place where property is shipped or deliv-

ered to the purchaser is determined without regard to “the

f.o.b. point or other conditions of the sale.” In the example

set out above, the place where the goods were shipped to the

purchaser would be Los  Angeles. That is true even if the

goods were shipped f.o.b. Portland and even if, as a result,

title passed to the buyer in Portland and the contractual

place of delivery was Portland.

The history of the rule leads to the same conclusion.

Before the Commissioners on Uniform State Laws adopted

the Uniform Act in 1957, sales of tangible property by multi-

state businesses were allocated among states based on the

property’s (1) destination; (2) origin; (3) the location of the

sales office; (4)  sales activity; or (5)  place of acceptance by

the purchaser. State Taxation of Interstate Commerce: Report

of the Special Subcommittee on State Taxation of Interstate

Cite as 357 Or 40 (2015) 49

Commerce, House Committee on the Judiciary, H R Rep

No 952, 89th Cong, 1st Sess, 181-83 (1965); see Jerome R.

Hellerstein, Walter Hellerstein, and John A. Swain, 1 State

Taxation ¶ 9.18(1) (3d ed 2000 & Supp 2014).

Each of those theories for allocating sales of tangi-

ble personal property had its disadvantages. However, one

theory—allocating sales to the state or country where title

passed—was probably the least favored:

“Apportionment of sales to the state or country where title

passes is hit or miss. The effect of the apportionment will

depend wholly upon legal conclusions based upon construc-

tion of contracts, terms of waybills, customs in the busi-

ness, evidence as to the intention of the parties, and other

considerations having little or no relation to the problem of

determining where income is earned.”

George T. Altman and Frank M. Keesling, Allocation of

Income in State Taxation 127 (2d ed 1950). See also Frank M.

Keesling and John S. Warren, California’s Uniform Division

of Income for Tax Purposes Act Part I, 15 UCLA L Rev 156,

161 (1967) (“Most states consider the place where title passes

irrelevant in determining the source of income.”).

The comment to section 16 of the Uniform Act, on

which Oregon modeled ORS 314.665, suggests, as do the

text and context of that section, that the drafters of the

Uniform Act did not intend to allocate sales based on where

title passed; rather, they intended to adopt the ultimate-

destination theory of allocating sales. We note that the com-

ment does not explain how the general rule—that sales are

allocated to the place where tangible personal property is

shipped or delivered to the purchaser—works. Instead, the

comment identifies two variations on that general rule and

explains how the Uniform Act would allocate sales in those

situations. The comment also discusses an exception to the

general rule and the reason for the exception. In doing so,

the comment sheds light, albeit indirectly, on the meaning

of the general rule.

Regarding the first variation, the comment states:

“The phrase ‘delivered or shipped to a purchaser’ in this state

includes shipments, at the designation of the purchaser, to a

50 Powerex Corp. v. Dept. of Rev.

person in this state such as designating, while a shipment

is en route, the ultimate recipient.” Uniform Act, § 16, com-

ment. Although its syntax leaves something to be desired,

that part of the comment recognizes that tangible personal

property will be shipped or delivered to a purchaser within

this state when the purchaser designates a person in this

state as the “ultimate recipient” of the property. The com-

ment thus clarifies that, in determining the place where tan-

gible personal property is shipped or delivered to the pur-

chaser, the identity of the “ultimate recipient” can matter.

The comment also discusses why the Uniform Act

excepts shipments to the United States government from

the general rule. It explains:

“Sales to the United States are treated separately. It is

thought that this is justified because sales to the United

States are not necessarily attributable to a market existing

in the state to which the goods are originally shipped. This

different treatment may also be justified because, if the

goods are defense or war materials, it may be impossible to

determine whether the goods ever came to rest in the state

due to use of coded delivery instructions.”

Uniform Act, § 16, comment. As the comment notes, one rea-

son for excepting goods sold to the United States from the

general rule is that, for some categories of goods, “it may

be impossible to determine whether the goods [sold to the

United States] ever came to rest in the state” to which they

were delivered or shipped. Implicit in that explanation is

that ordinarily what matters in determining where prop-

erty was shipped or delivered to the purchaser is where the

property “came to rest.”9

9

The other reason the comment notes for excepting sales to the United

States points in the same direction. By providing that sales are allocated to the

state where the goods are shipped or delivered to the purchaser, the Uniform

Act recognizes the contribution that “the state of destination, which provides

the market, [makes] to the generation of income.” Lynn, The Uniform Division of

Income for Tax Purposes Act, 19 Ohio St LJ at 51; see also Keesling and Warren,

California’s Uniform Division of Income for Tax Purposes Act Part I, 15 UCLA L

Rev at 161 (same). As the comment explains, however, sales of goods to the United

States “are not necessarily attributable to the market existing in the state to

which the goods are originally shipped.” Uniform Act, § 16, comment. As a conse-

quence, sales to the United States are not attributed to the state where the goods

are shipped or delivered but instead are allocated to the state from which the

goods are shipped. See ORS 314.665(2)(b) (so providing).

Cite as 357 Or 40 (2015) 51

Given the text, context, and history of the Uniform

Act, most legal authorities have acknowledged that sec-

tion 16(a) of the Uniform Act is best read as embodying

an ultimate-destination theory of sales apportionment.

Professors Keesling and Warren understood the Uniform

Act to adopt the destination theory. “The Act provides that

sales of tangible personal property should be apportioned

to the state or country of destination, provided the tax-

payer is subject to tax in such state or country.” Frank M.

Keesling and John S. Warren, California’s Uniform Division

of Income for Tax Purposes Act Part II, 15 UCLA L Rev 655,

671 (1968); see also Lynn, The Uniform Division of Income

for Tax Purposes Act, 19 Ohio St LJ at 50 (describing Section

16(a) of [the Uniform Act] as “assign[ing] sales to the sales

factor numerator of the state of delivery,” that is, “customer

location”) (emphasis added). So, too, has almost every juris-

diction that has interpreted the text. See, e.g., Olympia

Brewing Co. v. Comm’r of Revenue, 326 NW2d 642, 648

(Minn 1982); McDonnell Douglas Corp. v. Franchise Tax Bd.,

26 Cal App 4th 1789, 1794, 33 Cal Rptr 2d 129 (1994) (col-

lecting cases); Hellerstein et al., 1 State Taxation § 9.18[1][a]

(“[M]ost courts that have considered the issue have adopted

the ultimate-destination rule rather than the place-of-

delivery rule.”).

We recognize that asking where property was

shipped or delivered to the purchaser does not always lead

to a clear answer. One issue has arisen when a seller ships

goods to a loading dock in one state where the purchaser

picks them up and then transports them to their “ultimate

destination” in another state. See Department of Revenue

v. Parker Banana, 391 So 2d 762 (Fla Dist Ct App 1980);

Hellerstein et al., 1 State Taxation ¶ 9.18[1][a] (discussing

issue). The question in that situation is whether the goods

were shipped to the purchaser in the first state or the sec-

ond. In analyzing that question, the seminal case started

from the proposition that, if the seller had shipped the goods

to the loading dock in the first state and a common carrier

had picked the goods up and delivered them to the purchaser

in the second state, then the goods would have been “deliv-

ered or shipped to [the] purchaser” in the second state for the

52 Powerex Corp. v. Dept. of Rev.

purposes of UDITPA. See Parker Banana, 391 So 2d at 763.

The court held that the result should be no different if the

purchaser picked up the goods at the loading dock in the first

state and transported them itself to their ultimate destina-

tion in the second state rather than having a common carrier

do so. See id. at 764. Agreement is not universal, however.

See Hellerstein et al., 1 State Taxation ¶ 9.18[1][a] (recogniz-

ing general agreement with Parker Banana but noting that

asking where the goods were shipped rather than ultimately

received would be a more administratively convenient test).

Although the parties urge us to take a position on

that issue, the Tax Court’s opinion obviates the need to do

so. As we read the Tax Court’s opinion, it found that Malin

was simply the point at which the natural gas that Powerex

sold went from one pipeline to another pipeline on its way

to its ultimate destination outside of Oregon. More impor-

tantly, the Tax Court analogized the role that the pipelines

played to that of common carriers. It explained that “it

appears that the gas in question is being transmitted over

interstate pipelines that are, or function as, common carri-

ers.” Given the Tax Court’s findings, we conclude that this

case does not require us to decide what the rule should be

when the purchaser takes physical possession of the goods

at a loading dock in one state and transports them itself to

their ultimate destination in another state. Rather, this is

a case in which the natural gas merely went from one “com-

mon carrier” to another at Malin on the gas’s way to the pur-

chaser in California. The department identifies no case in

which any court has held that such a transfer constitutes a

“delivery” to the purchaser within the meaning of UDITPA

or its analogues in other states.

The department argues, however, that we should

reach a different conclusion for three reasons. First, as noted

above, the department argues that “the contractual points

of delivery for Powerex’s natural gas transactions were in

Oregon.” It also notes that “title to the [natural gas] passe[d]

from Powerex to its purchasers at the delivery point speci-

fied in their contracts”—namely, in Malin. The department

concludes from those facts that Powerex delivered the natu-

ral gas to the purchasers in Malin, not in California.

Cite as 357 Or 40 (2015) 53

The department never explains what the phrase

“contractual point of delivery” means.10 The record, however,

contains two standard form contracts that Powerex incor-

porated by reference in selling natural gas.11 One form sets

out the general terms and conditions for “Base Contracts

for Sale and Purchase of Natural Gas.” The other sets

out general terms and conditions for a “Base Contract for

Short-Term Sale and Purchase of Natural Gas.”12 Section

One of the Base Contract for Sale and Purchase of Natural

Gas defines “Delivery Point(s)” as “mean[ing] such point(s)

as are agreed to by the parties in a transaction.” Section

Four provides that “[s]eller shall have the sole responsibil-

ity for transporting the Gas to the Delivery Point(s). Buyer

shall have the sole responsibility for transporting the Gas

from the Delivery Point(s).” Section Eight of the agreement

provides:

“Unless otherwise specified, title to the Gas shall pass from

Seller to Buyer at the Delivery Point(s). Seller shall have

responsibility for and assume any liability with respect

to the Gas prior to its delivery to Buyer at the specified

Delivery Point(s). Buyer shall have responsibility for and

any liability with respect to said Gas after its delivery to

Buyer at the Delivery Point(s).”

It appears from those contract provisions that the

“contractual point of delivery,” on which the department

relies, serves the same function as an f.o.b. point. The

contractual point of delivery specifies the point to which

Powerex was responsible for delivering the natural gas, the

point at which title to the gas passed from Powerex to the

purchaser, and the point at which responsibility for any loss

passed from Powerex to the purchaser.

10

The department cites one exhibit to demonstrate that Powerex sold natu-

ral gas with contractual points of delivery in Oregon. That exhibit is a response

to the department’s request for production of natural gas sales in the 2003 tax

year “with a contractual delivery point within Oregon.” The exhibit consists of a

list of gas sales that Powerex compiled in response to the department’s request

for production. However, neither the request nor the response contains any expla-

nation of what “contractual point of delivery” means.

11

In selling natural gas, Powerex entered into confirmation agreements

with the purchasers, which incorporated by reference the terms of the standard

contracts.

12

The terms in the two standard form contracts are similar but not identical.

54 Powerex Corp. v. Dept. of Rev.

The department identifies no evidence that would

suggest some different meaning for those contractual terms,

and we conclude that the “contractual points of delivery” on

which the department bases its argument are “other con-

ditions of the sale” that are effectively the same as “the

f.o.b. point.” Put differently, the department’s argument is

based on “other conditions of the sale” that ORS 314.665(2)

(a) directs us to disregard in deciding where the natural gas

was delivered or shipped to the purchaser. The conditions

of sale on which the department relies provide no reason

to reject the Tax Court’s conclusion that the natural gas

merely passed from one pipeline to another at Malin on its

way to purchasers in other states.

The department also relies on two rules that it pro-

mulgated to implement ORS 314.665(2)(a). The first rule

was in effect when the transactions at issue here occurred.

The second rule did not become effective until 2011, several

years after the 2003 gas sales at issue here. The first rule

provides:

“Property is delivered or shipped to a purchaser within this

state if the shipment terminates in this state, even though

the property is subsequently transferred by the purchaser

to another state.”

OAR 150-314.665(2)-(A)(4). That rule includes the following

example to illustrate its application:

“The taxpayer makes a sale to a purchaser who maintains

a central warehouse in Oregon at which all merchandise

purchases are received. The purchaser reships the goods to

its branch stores in other states for sale. All of taxpayer’s

products shipped to the purchaser’s warehouse in Oregon

[are] property ‘delivered or shipped to a purchaser within

this state.’ ”

Id.

We defer to an agency’s interpretation of its own

rule “as long as its interpretation is a plausible one and not

inconsistent with the rule, its context, or any other source

of law.” Crystal Communications, 353 Or at 311. In our view,

the difficulty with the department’s reliance on OAR 150-

314.665(2)-(A)(4) lies in its application to the facts of this

Cite as 357 Or 40 (2015) 55

case. Given the Tax Court’s decision, it is difficult to see how

the department can say that Powerex’s shipments of natural

gas “terminate[d]” in Malin. Rather, as the Tax Court con-

cluded, all that occurred at Malin was that the natural gas

went from one interstate pipeline to another on its way to

purchasers in other states. The department points to noth-

ing in the record that contradicts the Tax Court’s conclusion

or that suggests that this transaction fell within the example

that illustrates how OAR 150-314.665(2)-(A)(4) applies.

The department relies on a second rule, which pro-

vides that “[a] sale of tangible personal property, * * * which

is delivered or shipped to a purchaser with a contracted

point of delivery in Oregon is a sale in this state.” OAR 150-

314.665(2)-(C)(1). The phrase “contracted point of delivery”

can have more than one meaning. It can mean (1) the ulti-

mate destination to which the goods are shipped or deliv-

ered to the purchaser by either the seller or by one or more

common carriers; (2) the point at which the purchaser takes

possession of the goods but not the goods’ ultimate destina-

tion, as in the loading dock example noted above; or (3) the

f.o.b. point or other conditions of the sale. As explained above,

in applying OAR 150-314.665(2)-(C)(1) to the gas sales at

issue here, the department equates the phrase in the rule

“contracted point of delivery” with the f.o.b. point or other

conditions of the sale.

The rule, applied to these gas sales, is squarely

inconsistent with the statute. That is, the rule, as the depart-

ment applies it to these gas sales, gives dispositive effect to

“conditions of the sale” that ORS 314.665(2)(a) directs us to

disregard in deciding where tangible personal property was

shipped or delivered to the purchaser. We need not decide

whether the department’s rule validly can be applied to the

second situation identified above (the loading dock exam-

ple). As the Tax Court concluded, Malin simply served as a

transfer point from one “common carrier” to another on the

gas’s way to the purchaser in another state.13 The Tax Court

13

The Tax Court ruled that OAR 150-314.665(2)-(C)(1) did not apply to the

natural gas sales at issue here because the department adopted that rule after

the period in which Powerex’s return for the 2003 tax year was “open for exam-

ination.” See OAR 150-305.100-(B) (“Administrative rules adopted by the depart-

ment, unless specified otherwise by statute or by rule, shall be applicable for

56 Powerex Corp. v. Dept. of Rev.

correctly held that Powerex’s natural gas sales were not “in

this state.” See ORS 314.665(1).

II.  ELECTRICITY

Electricity—whatever its physical properties—is

sold. Wholesale traders or brokers buy and sell megawatt

hours of electricity for specific days or hours.14 Retailers, and

eventually end-users, receive electricity through transmis-

sion lines reticulated into a massive network, which is subdi-

vided into regions. The region comprising British Columbia,

Washington, Oregon, California, and several other western

states is governed by the Western Electricity Coordination

Council (WECC). The part of the WECC region that is at

issue here is a grid called the Pacific-Northwest Pacific-

Southwest Intertie (the Pacific Intertie). The Pacific Intertie

consists of alternating-current and direct-current transmis-

sion lines, which pass through Oregon on their way from

and to other states.

Only a few parties own the transmission lines

that make up the Pacific Intertie. Other entities, such as

Powerex, purchase the right to use them. In the balancing

area in which Oregon is situated, a wholesale trader typi-

cally will buy transmission rights from Bonneville Power

Administration (BPA), the primary transmission service

provider in Oregon.15

Situated along the transmission lines are various

hubs. The two hubs at issue in this case are referred to as

all periods open to examination.”). We need not decide whether that procedural

ruling provides another basis for affirming the Tax Court’s conclusion that the

natural gas Powerex sold was delivered or shipped to purchasers in other states.

It is sufficient to hold that, even if OAR 150-314.665(2)-(C)(1) applied to the 2003

tax year, applying it to the natural gas sales in this case is inconsistent with ORS

314.665(2)(a).

14

Because the Tax Court concluded that electricity is not tangible personal

property, it did not decide where the electricity that Powerex sold was delivered

to the purchasers. In stating the facts, we have set out undisputed facts to put the

parties’ arguments on that issue in perspective.

15

A “balancing area” is the area for which a balancing authority—in Oregon,

Bonneville Power Administration—“maintains load-resource balance.” See N

Am Elec Reliability Corp, Glossary of Terms in NERC Reliability Standards 10

(last updated June 14, 2014) available at http://www.nerc.com/files/Glossary_of_

Terms.pdf. Generally, it is coextensive with a federally regulated transmission

provider’s service area.

Cite as 357 Or 40 (2015) 57

the California-Oregon Border (COB) and the Nevada-Oregon

Border (NOB). COB consists of four different substations, two

of which are in Oregon (Malin and Captain Jack). NOB, by

contrast, consists of “[s]ome grass and some dirt” and three

wires “cross[ing] over the Nevada-Oregon border.” NOB is not

a substation but “just a spot in the line at the Nevada-Oregon

border where BPA * * * hands off responsibility or ownership

of the transmission lines to the southern entities.”

COB and NOB mark two points on the Pacific

Intertie where electricity goes from one transmission system

to another. They also play an additional role in this case.

The agreements for Powerex’s electricity sales at issue here

specify a “point of delivery” at either COB or NOB. There

was evidence in the record from which the Tax Court could

find that the “point of delivery” for the electricity sales was

functionally the same as the contractual point of delivery

for the natural gas sales; that is, the Tax Court could find

that COB and NOB were the points on the Pacific Intertie

to which Powerex agreed to deliver electricity, the points

at which title to the electricity passed, and also the points

where electricity passed from BPA’s transmission system to

another entity’s transmission system on its way somewhere

else.

The Tax Court did not decide whether the electric-

ity that Powerex sold was shipped or delivered to purchasers

in Oregon or elsewhere.16 Rather, the Tax Court allocated

Powerex’s electricity sales a different way. It concluded that

electricity is not tangible personal property for the purposes

of ORS 314.665(2)(a), which the Tax Court found meant

that all of Powerex’s electricity sales should be allocated

to British Columbia.17 Given the Tax Court’s ruling, we

16

The parties agree that the ultimate destination for a small part of the

electricity that Powerex sold was Oregon and thus was “delivered or shipped to a

purchaser * * * within this state.” See ORS 314.665(2)(a). They disagree whether

the remainder of the electricity was delivered or shipped to purchasers in this

state or other states.

17

Because the Tax Court concluded that electricity is not tangible personal

property, it allocated Powerex’s electricity sales to the state where the greater

part of the income-producing activity occurred. See ORS 314.665(4) (specifying

that rule for allocating “[s]ales, other than sales of tangible personal property”).

The court found that the greater part of the income-producing activity occurred

in British Columbia.

58 Powerex Corp. v. Dept. of Rev.

describe briefly the competing expert testimony on whether

electricity is tangible personal property.

Peter Fisher is the head of the department of exper-

imental particle and nuclear physics at MIT. Powerex called

Fisher in support of its argument that electricity is not tan-

gible personal property. Fisher testified that “electricity”

is attributed to the behavior of subatomic particles, which

he identified as “virtual photons.”18 He explained that, as

electrons orbit around the nucleus of an atom, the electrons

emit virtual photons, which “propagat[e] through space to

[another] point,” where the virtual photon is absorbed by a

second electron and extinguished. The life of a virtual photon

is fleeting; it lasts only for the “time it takes for something

to cross an atom at the speed of light.” Fisher explained that

virtual photons are an electromagnetic field, and electricity

is one manifestation of an electromagnetic field. According

to quantum physics, virtual photons have no mass. Only

electrons, protons, and neutrons (and perhaps related par-

ticles) have mass.19 Because virtual photons have no mass,

Fisher concluded that that they are not “material” and that

electricity is not “tangible personal property.”

Joel Fajans is a professor of physics at the University

of California at Berkeley. The department called Fajans to

testify in support of its position that electricity is tangible

personal property. Fajans testified that an electric current

consists of the flow and “pressure” of electrons, which both he

and Fisher agreed have mass. He also explained, and Fisher

did not dispute, that electricity is perceptible to the senses. It

can be felt, smelled, tasted, weighed, measured, and stored

(as well as seen by certain kinds of fish). Fajans did not dis-

pute that electromagnetic fields result from photons and

18

We say “attributed” because Fisher was careful to say that virtual pho-

tons are “unobservable in any way.” Quantum physics postulates the existence

of virtual photons to explain other phenomena that can be observed and mea-

sured. To date, the observable phenomena have been consistent with the idea

both that virtual photons exist and that they have certain characteristics that

can be deduced.

19

Fisher identified several other related particles, which he described using

kinship terms: the electron’s “silent cousin,” the neutrino; the electron’s exper-

imental sisters, the muon and the tau (and their related neutrinos); and the

apparently unnamed brothers of the up and down quarks, which are found in the

nucleus of the atom. Fisher’s testimony suggests that some or perhaps all those

related particles have mass.

Cite as 357 Or 40 (2015) 59

that virtual photons have no mass. However, he explained

that, in describing electrical power that is sold and deliv-

ered over transmission lines, virtual photons should not be

viewed separately from the flow of electrons that constitute

electric current. Because electrons have mass and because

electricity is perceptible, Fajans testified that electricity is

tangible as that word is ordinarily understood.

The Tax Court found Fisher’s opinion more persua-

sive than Fajans’, and it concluded, based on Fisher’s tes-

timony, that electricity is not “tangible personal property”

within the meaning of ORS 314.665. The Tax Court then

found that the greater part of the activity that produced the

income from Powerex’s electricity sales occurred in British

Columbia. See ORS 314.665(4) (providing that “[s]ales, other

than sales of tangible personal property” should be allocated

to the state where the greater part of the income-producing

activity occurred). As a result, the Tax Court held that the

department should not have included any of Powerex’s elec-

tricity sales in the numerator of the Oregon sales factor.

Having found that electricity is not tangible personal prop-

erty, the Tax Court did not decide whether the electricity

that Powerex sold was shipped or delivered to purchasers in

this state. See ORS 314.665(2)(a).

In considering the Tax Court’s ruling, we begin

with the question whether electricity is tangible personal

property.20 On that issue, the United States Supreme Court

recently has reminded us that whether an object is “tangi-

ble” does not necessarily turn on physics or even the object’s

physical properties; rather, it can depend on the context in

which the legislature used the word “tangible.” See Yates v.

United States, ___ US ___, 135 S Ct 1074, 191 L Ed 2d 64

(2015) (plurality opinion) (“any * * * tangible object,” as that

20

We start with that question for two reasons. First, the Tax Court did not

resolve any of the factual issues related to where the electricity that Powerex sold

was shipped or delivered. Second, the parties agree that, if electricity is tangible

personal property, a small amount of the electricity that Powerex sold during

the tax years at issue here was shipped or delivered to purchasers in Oregon. It

follows that, even if we could say that the remainder of the electricity was shipped

or delivered elsewhere and thus should not be included in the numerator of the

sales factor, we still would have to decide whether the small amount of electricity

shipped or delivered to Oregon was tangible personal property and thus attribut-

able to Oregon.

60 Powerex Corp. v. Dept. of Rev.

phrase is used in 18 USC § 1519, does not include fish); 135

S Ct at 1089 (Alito, J., concurring in the judgment) (same).

We accordingly look to the text, context, and history of ORS

314.665 before deciding what bearing, if any, the subatomic

properties of electricity have on the meaning of the phrase

“tangible personal property” in our statute.

As noted above, UDITPA uses the “sales factor” to

apportion a multistate company’s business income among

states. ORS 314.650 (providing that business income shall

be apportioned by multiplying a company’s business income

by the sales factor); ORS 314.610(1) (defining “business

income”).21 Specifically, UDITPA compares the company’s

sales within Oregon to the company’s total sales to deter-

mine a fraction, which is then used to determine the amount

of the company’s total income that Oregon may tax. ORS

314.665 (specifying how the sales factor is calculated); ORS

314.650 (apportioning a company’s business income by mul-

tiplying the company’s total income by the sales factor).

ORS 314.665 divides a company’s sales into two cate-

gories: “sales of tangible personal property” and “[s]ales, other

than sales of tangible personal property.” ORS 314.665(2),(4).22

It follows from that text that “[s]ales, other than sales of

tangible personal property” may include not only sales of

21

ORS 314.625 to ORS 314.645 specify how certain types of nonbusiness

income shall be allocated.

22

ORS 314.665 provides, in part:

“(1)  As used in ORS 314.650, the sales factor is a fraction, the numerator

of which is the total sales of the taxpayer in this state during the tax period,

and the denominator of which is the total sales of the taxpayer everywhere

during the tax period.

“(2)  Sales of tangible personal property are in this state if:

“(a)  The property is delivered or shipped to a purchaser, other than the

United States Government, within this state regardless of the f.o.b. point or

other conditions of the sale; or

“(b)  The property is shipped from an office, store, warehouse, factory, or

other place of storage in this state and the purchaser is the United States

Government or the taxpayer is not taxable in the state of the purchaser.

“* * * * *

“(4) Sales, other than sales of tangible personal property, are in this

state if (a) the income-producing activity is performed in this state; or (b) the

income-producing activity is performed both in and outside this state and a

greater proportion of the income-producing activity is performed in this state

than in any other state, based on costs of performance.”

Cite as 357 Or 40 (2015) 61

intangible property but also other types of sales, such as

the sale of services. See Hellerstein et al., 1 State Taxation

¶ 8.06[3][b] (discussing those two types of “[s]ales, other

than sales of tangible personal property”). In this case,

Powerex does not dispute that the electricity it sells is “per-

sonal property”; that is, it does not argue that, in selling

electricity, it was selling a service or something other than

personal property. Rather, Powerex’s argument turns on the

proposition that the electricity it sells is not “tangible” per-

sonal property.

UDITPA does not define the phrase “tangible per-

sonal property.” When the legislature has not defined a word

or a phrase, we assume, at least initially, that the word or

phrase has its ordinary meaning, except when the words are

“ ‘terms of art’ * * * drawn from a specialized trade or field.”

Comcast Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768

(2014). “[W]hen a term [of art] is a legal one, we look to its

‘established legal meaning’ as revealed by, for starters at

least, legal dictionaries.” Id. “Tangible personal property”

is a term of art in the field of taxation, and we look initially

to the way that legal dictionaries have defined that phrase

as well as intangible property. See Tektronix, Inc. v. Dept.

of Rev., 354 Or 531, 543, 316 P3d 276 (2013) (finding a well-

defined legal meaning for “intangible assets”).

One tax law dictionary defines “tangible personal

property” as “[p]roperty with physical form, capable of being

touched and seen.” West’s Tax Law Dictionary 1064 (2013). It

also includes an entry comparing “tangible and intangible

property”:

“Tangible property is property that can be felt or touched.

Its physical features are what make it useful to a taxpayer.

Intangible property is property that is not tangible.

Documents that are merely representations of value (such

as stock certificates) or evidence of rights (such as patents)

are intangible property.”

Id. (emphasis added).

Ordinarily, we look to dictionaries that were con-

temporaneous with the statute being interpreted. West’s Tax

Law Dictionary did not exist in 1957 when the Commissioners

62 Powerex Corp. v. Dept. of Rev.

on Uniform State Laws adopted the Uniform Act or in 1965

when the Oregon Legislature enacted UDITPA. However,

the definitions in that dictionary and its comparison

between tangible and intangible property parallel the defi-

nitions of those terms in the fourth edition of Black’s Law

Dictionary, which was published in 1951. That dictionary

defined “tangible property” as follows: “That which may be

felt or touched, and is necessarily corporeal, although it may

be real or personal.” Black’s Law Dictionary 1627 (4th ed

1951).23 It defined “intangible property” as follows:

“Used chiefly in the law of taxation, this term means such

property as has no intrinsic and marketable value, but is

merely the representative or evidence of value, such as cer-

tificates of stock, bonds, promissory notes, and franchises.”

Id. at 946.

Reading those definitions together, we conclude

that tangible personal property is perceptible to the senses

and that its physical features make it useful. Conversely,

intangible property lacks “intrinsic or marketable value.”

Thus, even though a bond—a common example of intangi-

ble property—physically evidences a debt, the value of the

bond does not lie in the physical features of the bond but in

the legal obligation that the bond embodies. See Blodgett v.

Silberman, 277 US 1, 15, 48 S Ct 410, 72 L Ed 2d 749 (1928)

(A “bond, wherever actually held or deposited, is only evi-

dence of the debt, and if destroyed, the debt—the right to

demand payment of the money loaned, with the stipulated

interest—remains.”) (internal quotations omitted).

We also look to the statute’s context. Cf. Stevens,

336 Or at 401 (explaining that the context for interpreting

a statute’s text includes the preexisting common law and

the statutory framework within which the law was enacted).

The distinction between tangible and intangible property

was a common feature of tax law before the adoption of the

Uniform Act in 1957. See James M. Gray, Limitations of

the Taxing Power 57-100 (1906) (discussing the situs of real

23

The fourth edition of Black’s Law Dictionary defined “corporeal property”

as follows: “Such as affects the senses, and may be seen and handled, as opposed

to incorporeal property, which cannot be seen or handled, and exists only in con-

templation.” Black’s Law Dictionary 412.

Cite as 357 Or 40 (2015) 63

property, tangible personal property, and intangible prop-

erty). Initially, courts sought to assign a real or fictional

“situs” to all property, and a state’s authority to tax prop-

erty depended on that situs. The situs of real property was

the state in which it was located, as was generally the situs

of tangible personal property, unless the tangible personal

property was transitory. See Curry v. McCanless, 307 US

357, 364-65, 59 S Ct 900, 83 L Ed 1339 (1939) (real property);

Frick v. Pennsylvania, 268 US 473, 45 S Ct 603, 69 L Ed

1058 (1925) (tangible personal property).24

Intangible property posed a greater dilemma. Ini-

tially, courts sought to classify different types of intangi-

ble property and assign a situs or situses to that property.

See Gray, Limitation on the Taxing Power, 66-95 (discussing

situses for, among other things, credits employed in busi-

nesses, choses in action that residents owed to nonresidents,

and partnership property). For example, a mortgage, bond,

or promissory note could be taxed either by the state where

the physical evidence of the obligation was situated or by the

state in which the owner of the intangible property resided.

Curry, 307 US at 366-71. The former was justified by the

idea that the document evidencing the underlying obligation

was physically in the taxing state; the latter, by the idea

that personal property follows the owner (at least as long as

the personal property was not tangible personal property

that had a situs elsewhere). Id.

In 1939, the United States Supreme Court recast

the constitutional bases on which a state may tax intangi-

ble property. Curry, 307 US at 363-66. The Court started

from the proposition that the rights created by intangible

property “are but relationships between persons, natural or

corporate, which the law recognizes by attaching to them

certain sanctions enforceable in court.” Id. at 366. Even

when a document evidencing those rights existed, a state’s

constitutional authority to tax that intangible property did

not necessarily turn on where that document physically

was located. Rather, a state’s authority to tax intangible

24

Tangible personal property is movable, and the courts held that tangible

personal property that was merely “passing through” a state would not acquire a

situs in that state but would be taxable at its owner’s domicile. Thomas M. Cooley,

1 Treatise on the Law of Taxation 88-89 (3d ed 1903).

64 Powerex Corp. v. Dept. of Rev.

property derived from the protection and benefits that the

state extended to the owner of the intangible property, which

can result, as matter of federal constitutional law, in more

than one jurisdiction having authority to tax intangible

property. Id. at 369-71 (both Alabama and Kentucky could

impose a transfer tax on the value of intangible trust assets

held by a trustee in Alabama and over which the decedent

in Kentucky exercised a power of appointment); Greenough

v. Tax Assessors of Newport, 331 US 486, 67 S Ct 1400, 91 L

Ed 1621 (1947) (Rhode Island could tax a resident trustee’s

proportionate share of trust intangibles located in New York

and held on behalf of a testamentary trust in New York

because the benefit and protection of Rhode Island’s laws

were available to the trustee if the trustee sued or were sued

by third parties in Rhode Island).

We draw two conclusions from those cases. First,

tangible personal property is property that can be located

physically within a state. As the Oregon legislature recog-

nized in UDITPA, tangible personal property can be deliv-

ered or shipped from one place to another. Second, intan-

gible property represents or symbolizes obligations and

relationships to which the law gives effect. Intangible prop-

erty rights may be embodied in a physical document, as a

promise to pay may be embodied in a bond. However, the

value reflected in the bond derives from the promise to pay

that the bond embodies; it does not derive from the phys-

ical features of the document. See Blodgett, 277 US at 15

(so stating). Accordingly, bonds are not considered tangible

personal property, even though the bonds—the documents

embodying the obligation—can be seen, touched, weighed,

and perhaps smelled.

We also look to the legislative history, which does

not shed any light on the issue. In enacting UDITPA, the

Oregon legislature did not address this issue. Similarly, the

comments to the Uniform Act shed no light on the issue. To

be sure, as noted above, the comment to section 16 of the

Uniform Act and the contemporaneous academic commen-

tary explain that, in defining the sales factor, the Uniform

Act sought to give effect to the contribution that “the state

of destination, which provides the market, [makes] to the

generation of income.” Lynn, The Uniform Division of Income

Cite as 357 Or 40 (2015) 65

for Tax Purposes Act, 19 Ohio St LJ at 51; see also Keesling

and Warren, California’s Uniform Division of Income for Tax

Purposes Act Part I, 15 UCLA L Rev at 161 (same). The sales

factor, however, includes both sales of tangible personal

property and “[s]ales, other than the sale of tangible per-

sonal property.” The existence of a market in a state thus

provides no basis for distinguishing one category of sales

from another. Put differently, the fact that there may be a

market for a service does not mean that the sale of that ser-

vice is the sale of tangible personal property.

With the text and context of ORS 314.665 in mind,

we turn to the question whether electricity is tangible

personal property for the purposes of that section. In our

view, the scientific debate about the subatomic properties of

electricity—as fascinating as it is—seems beside the point.

For instance, if we applied Professor Fisher’s approach to

defining tangible personal property (or Professor Fajans’

approach for that matter) to instruments that customarily

are regarded as intangible property, such as bonds or stock

certificates, we would focus on the wrong concepts and con-

clude wrongly that those instruments are tangible personal

property because the subatomic particles of which they are

composed have mass. As that counterexample suggests,

Fisher’s and Fajans’ approach to defining tangible personal

property focuses on qualities that matter to physicists but

not necessarily to lawyers and legislators.

Our examination of the text and context of UDITPA

points us in a different direction. It reveals that the quali-

ties that mattered to the drafters of the Uniform Act and

the Oregon legislature that enacted UDITPA were whether

the property sold was perceptible to the senses, could be

located physically within a state, and could be delivered or

shipped to a place. A related quality was that the physical

properties of tangible personal property were what made it

useful while the physical properties of intangible property

had little or no relation to that property’s value or useful-

ness. Rather, the value of intangible property derives from

the rights and obligations it represents.

We also note that, when the Oregon legislature

enacted UDITPA in 1965, tangible personal property and

66 Powerex Corp. v. Dept. of Rev.

intangible property generally divided into familiar groups.

For example, in another section of the tax code, the Oregon

legislature had provided the following examples to define

tangible and intangible personal property:

“ ‘Intangible personal property’ or ‘intangibles’ means and

includes money at interest, bonds, notes, claims, demands

and all other evidences of indebtedness, secured or unse-

cured, including notes, bonds or certificates secured by

mortgages, and all shares of stock in corporations, joint

stock companies or associations.”

ORS 307.020(1) (1959). By contrast,

“ ‘Tangible personal property’ means and includes all chat-

tels and movables, such as boats, vessels, merchandise and

stock in trade, furniture and personal effects, goods, live-

stock, vehicles, farming implements, movable machinery,

movable tools and movable equipment.”

ORS 307.020(3) (1959).

Electricity does not fall neatly into either of those

two groups. However, as the issue is presented to us, elec-

tricity is either “tangible” personal property or it is “intangi-

ble” property. Faced with that choice, we conclude that elec-

tricity is tangible personal property for the purposes of ORS

314.665. It is perceptible to the senses, most significantly

to the sense of touch. It can be physically located within a

state and shipped from one state to another. For example,

Powerex sells electricity and delivers a specified quantity

of electricity from one state to another. If Powerex fails to

deliver a specified quantity of electricity to the purchaser,

as it agreed to do, it presumably will be liable for breach of

contract. And the physical properties of electricity are what

make it valuable to a purchaser, unlike intangible property,

the value of which derives from the obligations and rights

that the intangible property represents. We accordingly con-

clude that electricity is tangible personal property for the

purposes of ORS 314.665(2)(a).25

Powerex argues, however, that two considerations

should persuade us to reach a different result. First, Powerex

25

In light of that conclusion, we need not decide whether a department rule

defining electricity as tangible personal property applies to the tax years at issue

here.

Cite as 357 Or 40 (2015) 67

notes that ORS 314.605(2) provides that UDITPA “shall be

so construed as to effectuate its general purpose to make

uniform the law of those states which enact it.” Powerex

observes that, in interpreting their state counterparts to

ORS 314.665, two state tax commissions have concluded that

electricity is not tangible personal property. Powerex rea-

sons that, to achieve uniformity, we should reach the same

result that those two administrative decisions did. In con-

sidering Powerex’s argument, we first describe the admin-

istrative decisions it cites. We then explain why uniformity,

although an important consideration, does not cause us to

depart from our conclusion based on the text and context of

ORS 314.665.

The California Board of Equalization issued one of

the two administrative decisions on which Powerex relies.

See In re Appeal of PacifiCorp, 2002 WL 31153476 (Cal St

Bd Eq). Most of the board’s decision consists of a recitation of

the parties’ competing arguments. Id. at *3-*6. The board’s

ruling turns on its conclusion that the sale of electricity is

the sale of a service—a conclusion that the board based pri-

marily on an Ohio Supreme Court decision holding that a

distribution system for electricity was a service, not a prod-

uct, for the purposes of Ohio’s products liability law. Id. at

*7-*8 (quoting and following Otte v. Dayton Power & Light

Co., 523 NE2d 835 (Ohio 1988)).

In our opinion, the board’s administrative decision

provides little support for Powerex’s position for three rea-

sons. First, the board’s decision rests on a rationale—that

electricity is a service—that Powerex does not advance

here.26 Second, the board based its rationale on a case that

seems inapposite. In Otte, the Ohio case on which the board

relied, the plaintiffs alleged that an improper electrical

26

Powerex correctly notes that, at the end of its decision, the board states:

“Therefore, based upon the foregoing discussion, we conclude that, for purposes

of California tax law, electricity is intangible.” In re Appeal of PacifiCorp, 2002

WL 31153476 at *8. The “foregoing discussion,” however, consists of the board’s

explanation that electricity is a service. Id. at *7-*8. It is certainly true that, for

purposes of California’s analogue to ORS 314.665, the sale of “tangible personal

property” does not include either the sale of a service or the sale of intangible

property. However, the sale of a service differs from the sale of intangible prop-

erty, and the board’s conclusion that electricity is a service does not imply that it

is intangible property.

68 Powerex Corp. v. Dept. of Rev.

ground had adversely affected their cows’ milk production

and that the improper ground was a defective product for the

purposes of products liability law. 523 NE2d at 838.27 The

Ohio Supreme Court held in Otte that the “purported defect”

that caused the plaintiffs’ cows not to produce milk was “a

defect in the distribution system [for grounding electricity].

Such a system is, in our view, a service.” Id. Whether a dis-

tribution system for electricity is a service for the purposes

of products liability law would seem to have little, if any,

bearing on whether electricity is tangible personal property

or intangible property for the purposes of apportioning the

income of a multistate corporation. Finally, as the amicus

notes, to the extent that Otte holds that electricity is not a

product for the purposes of product liability law, Otte does

not reflect the majority view on that issue. See Bryant v.

Tri-County Elec. Membership Corp., 844 F Supp 347, 350 n 6

(WD Ky 1994) (collecting cases).

The Massachusetts Appellate Tax Board issued the

other administrative decision on which Powerex relies. See

Eua Ocean State Corp. v. Comm’r of Revenue, 2006 Mass Tax

LEXIS 35 (Mass Tax 2006). That decision seems more to the

point than the California Board of Equalization’s opinion in

PacifiCorp. In Eua, the board concluded that electricity has

some physical features, but “lacks physical form and a pre-

cise geographic location” and makes “concepts such as title,

possession, and delivery, which are the lynchpins of appor-

tionment for sales of tangible personal property” difficult to

analyze in the sales factor context. Id. at *45. Additionally,

the board was persuaded by the fact that the physical prop-

erties of electricity differ from the physical properties of

other tangible personal property, such as “furniture, a cook-

ing utensil, or a book.” Id. at *41.

Although we appreciate the reasons that the board

advanced in support of its holding in Eua, we come to a dif-

ferent conclusion for the reasons that we previously have

stated. We find that the “concepts of title, possession, and

27

Specifically, the plaintiffs had alleged in Otte that, as a result of “small

amounts of stray neutral-to-earth voltage [that] had been released on their prop-

erty,” their cows had reacted adversely to the milking machines, with the result

that the cows “were ‘dancing in the [milk] parlor, * * * kicking the [milk] unit off

the cow, [and] coming into the parlor nervous * * *.’ ” 523 NE2d at 836.

Cite as 357 Or 40 (2015) 69

delivery” can and do apply to sales of electricity. Indeed, con-

tracts for the sale of electricity routinely define and embody

agreements on those terms. Moreover, we find it less rele-

vant that electricity is the product of excited electrons that

are fungible than that electricity can be measured and iden-

tified by a well-recognized unit of sale and delivered, for com-

mercial purposes, to purchasers to service their load within

a particular state. It is certainly true that electricity differs

from furniture, but it also differs from bonds, stock certif-

icates, and other intangible property. As explained above,

the qualities that distinguish tangible personal property

from intangible property lead us to conclude that electricity

should be classified as tangible rather than intangible prop-

erty for the purposes of ORS 314.665.

We are left, however, with Powerex’s argument that,

even if we are unpersuaded by the reasoning in Eua and

even if the reasoning in PacifiCorp is inapposite, we should

nonetheless follow those two administrative decisions to

achieve uniformity among the states that have adopted

their own analogues to UDITPA. Amicus Portland General

Electric counters that, in the context of income tax determi-

nations, two state courts have held that electricity is tangi-

ble personal property. See Exelon v. Dep’t of Rev., 917 NE2d

899, 911 (Ill 2009) (joining the “several courts that have

expressly held in varying contexts that electricity consti-

tutes ‘tangible personal property’ ”); Tucson Electric Power

Co. v. Arizona Dep’t of Rev., 822 P2d 498, 502 (Ariz Ct App

1991) (“Electricity is personal property that may be mea-

sured; it thus constitutes ‘tangible personal property.’ ”). The

amicus recognizes that those courts were not interpreting

UDITPA but reasons that their conclusions regarding the

tangible nature of electricity apply equally to UDITPA.

We might doubt the persuasiveness of the courts’

reasoning in Exelon and Tucson Electric Power, even though

we agree with the result that those courts reached.28 The

28

The Illinois Supreme Court’s holding in Exelon turns primarily on

Professor Fajans’ explanation of electricity and the fact that electrons have mass.

As explained above, we are not persuaded that the meaning of the phrase “tan-

gible personal property” in UDITPA turns on how quantum physicists explain

the subatomic workings of electricity. The holding in Tucson Electric is brief. The

parenthetical set out above contains the court’s reasoning on the issue.

70 Powerex Corp. v. Dept. of Rev.

more telling question, however, is the extent to which the goal

of uniformity should inform our interpretation of Oregon’s

statute. We addressed that question in Atlantic Richfield Co.

v. Dept. of Rev., 300 Or 637, 646, 717 P2d 613, adh’d to on

recons, 301 Or 242, 722 P2d 727 (1986), and we turn to that

opinion. The issue in Atlantic Richfield was whether the

Oregon Department of Revenue reasonably had interpreted

its own rule. 300 Or at 644-46. The court observed that the

department’s interpretation of its own rule was legally per-

missible but not persuasive. See id. at 646 (explaining that

the two rationales that supported the department’s interpre-

tation of its rule “seem[ed] suspect” while the four rationales

that supported a different interpretation had “validity”).

The court explained that, if no other state had

addressed the issue, it would defer to the department’s inter-

pretation of its rule despite any misgivings the court may

have had. Id. However, because the three other states that

had addressed the issue had all reached the same result,

which differed from the department’s conclusion, this court

did not defer to the department. Id. at 646-50. Put differ-

ently, given the department’s doubtful interpretation of its

own rule, this court opted for a small but uniform consensus

among the states that had considered the issue. On recon-

sideration, the court adhered to its earlier conclusion after

engaging in a more comprehensive survey of other states’

positions on the issue. 301 Or at 246-47. The court noted

that 19 of the 30 UDITPA states that had considered the

issue had disagreed with the department’s interpretation

and that 10 of the 13 Multistate Tax Compact states that

had taken a position on the issue disagreed with the depart-

ment’s interpretation. Id. at 245.

As we read the original decision in Atlantic Richfield

and the decision on reconsideration, we conclude that the

weight that should be given to the uniform application of

UDITPA is a function of two variables. The first involves our

degree of certainty regarding the meaning of the statute or

rule we are interpreting. The second involves the degree of

consensus that other states considering the same issue have

reached. For example, if a statute may be interpreted in two

equally plausible ways and if there is a general consensus

Cite as 357 Or 40 (2015) 71

among the other UDITPA states that one of those interpreta-

tions is correct, then uniformity weighs in favor of interpret-

ing the statute the same way that the other UDITPA states

have. Conversely, if we are confident that the text, context,

and legislative history of a statute lead to a single conclu-

sion, one or two stray decisions going the other way will be

unlikely to cause us to follow those states’ interpretations.

In this case, our examination of the text, context,

and history of ORS 314.665 persuades us that the phrase

“tangible personal property” includes electricity. Although

no conclusion is free from doubt, we are persuaded that our

interpretation more accurately reflects the meaning of ORS

314.665. The consensus on which Powerex relies to support

a different conclusion consists of two administrative deci-

sions, each of which rests on a different rationale. Moreover,

other states have reached a contrary result. See Exelon, 917

NE2d at 911 (listing the “several courts” that had concluded

that electricity is tangible personal property). If we were less

certain about our interpretation and if there were a greater

consensus among the states reaching a different result, the

goal of achieving a uniform interpretation might lead to a

different answer. That is not the case here, however.

Powerex advances another consideration in support

of the conclusion it urges. It argues that we should defer to

the version of the Multistate Tax Commission (MTC) audit

manual that was in effect for the three tax years at issue

here. Powerex argues that it is “highly significant that the

MTC treats electricity as an intangible for the purposes of

the UDITPA sales factor.” (Emphasis in original.) Powerex,

however, never explains why that is so, and we turn to the

audit manual on which Powerex relies.

The section of the audit manual on which Powerex

relies states:

“The rules set forth in Index 1720 [for allocating sales of

tangible personal property] do not apply to sales of real

estate, services, or intangibles. Tangible [personal] prop-

erty is defined as commodities that are perceptible to the

senses and movable. It is usually discernible from intangible

property. However, some property is borderline and difficult

to identify as to type. For example, water and gasoline are

72 Powerex Corp. v. Dept. of Rev.

considered to be tangible property, while electricity and

money are considered to be intangible property.”

The audit manual states a position regarding electricity but

does not explain the basis for that position. That is, having

defined “tangible property” as “commodities that are per-

ceptible to the senses and movable,” the audit manual does

not explain why electricity does not come within that defi-

nition. Rather, the manual notes that the issue is “difficult”

and posits, without further explanation, that electricity is

“intangible property.”

In our view, the audit manual is not as significant as

Powerex perceives. It is certainly not significant for its per-

suasive value. The audit manual does not explain its conclu-

sion; it states it. Nor is the audit manual significant because

it preexisted Oregon’s enactment of UDITPA in 1965 and

thus might have informed the Oregon legislature’s under-

standing of what was and was not “tangible personal prop-

erty.” The MTC did not come into existence until 1967, two

years after Oregon enacted UDITPA, and the MTC did not

begin any audits until 1971, six years after Oregon enacted

UDITPA.29 We recognize that the audit manual seeks to

promote consistency among the states that have signed on

to the Multistate Tax Compact. However, UDITPA states

that, if any of its provisions conflict with the provisions of

the Multistate Tax Compact, which Oregon has adopted,

then the provisions of UDITPA control. ORS 314.606.30

The same principle applies with greater force to conflicts

between UDITPA and the various sections of MTC’s audit

manual. To the extent that the audit manual differs from

our interpretation of ORS 314.665(2)(a), our interpretation

of UDITPA controls.

29

See First Annual Report of the Multistate Tax Commission (1967-68)

(explaining that the report “includes the activities of the Commission during

the partial first year of its existence in 1967”); Fourth Annual Report of the

Multistate Tax Commission 8-9 (1971-72) (explaining that, in 1971, the MTC

opened audit offices in two cities). Although the MTC provided audits for compa-

nies, the report does not suggest that an “audit manual” also existed in 1971.

30

ORS 314.606 provides: “In any case in which the provisions of ORS 314.605

to ORS 314.675 are inconsistent with the provisions of ORS 305.653, the provi-

sions of ORS 314.605 to ORS 314.675 shall control.” ORS 314.605 to ORS 314.675

comprise UDITPA while ORS 305.653 is the statute by which Oregon enacted

the Multistate Tax Compact into law and entered into that compact with other

states.

Cite as 357 Or 40 (2015) 73

The arguments that Powerex has advanced do not

persuade us to depart from our conclusion that electric-

ity is tangible personal property for the purposes of ORS

314.665(2)(a). It follows that the remaining question is

whether Powerex delivered or shipped the electricity it sold

to purchasers in Oregon or in other states. As noted, the Tax

Court did not decide that issue. As also noted, the parties

agree that Oregon was the ultimate destination for a small

part of the electricity that Powerex sold during the three tax

years at issue here. They disagree whether the remainder

of the electricity that Powerex sold during those years was

shipped or delivered to purchasers outside of Oregon.

In arguing that issue, the department does not dis-

tinguish between Powerex’s sales of electricity and its sales

of natural gas, and it may be that the department’s argu-

ments regarding Powerex’s sales of electricity fail for the

same reason that its arguments regarding Powerex’s sales

of natural gas failed. However, the Tax Court did not find

whether the transmission systems that carried the electric-

ity that Powerex sold functioned the same way that natural

gas pipelines did. That is, the Tax Court did not find whether

those transmission systems were the functional equivalent

of common carriers. If the Tax Court makes that finding

on remand, then our conclusion regarding Powerex’s natu-

ral gas sales presumably will control how most of Powerex’s

electricity sales will be allocated. However, if the Tax Court

finds that COB and NOB functioned more like a loading

dock, then it will have to decide whether, under UDITPA,

Oregon will follow the majority or the minority position on

that issue. We accordingly affirm the Tax Court’s judgment

regarding Powerex’s natural gas sales, reverse its judgment

regarding Powerex’s electricity sales, and remand for fur-

ther proceedings.

The judgment of the Tax Court is affirmed in part

and reversed in part. The case is remanded for proceedings

consistent with this opinion.