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Judge Reverses Own Decision to Extend the Texas Sales Tax Manufacturing Exemption to Include Oil and Gas Extraction Equipment

On April 11, 2012, Judge John Dietz issued a ruling from the bench in Southwest Royalties, Inc. v. Combs, Case D-1-GNU-09-004282 (Travis County 250th Dist. Ct.) to extend the Texas sales tax exemption for manufacturing property to include certain items of property, such as well casing and “down-hole” equipment, used to extract oil and gas. (For more information about this ruling, see Bracewell’s previous client alert here.) On Monday, Judge Dietz reversed his decision and held that such equipment is not eligible for the Texas sales tax manufacturing exemption.

Under Texas law, to qualify for the manufacturing exemption from sales tax, property purchased generally must be necessary for the manufacturing or processing of, and directly cause a physical change to, the product produced for sale. At trial, Southwest claimed that the equipment was used during the extraction process and directly caused a physical change to the extracted oil and gas. The Comptroller contested both of Southwest’s positions and specifically stated that the physical change that occurred to the hydrocarbons in the wellbore was a mere consequence of the extraction process and the equipment did not directly cause a physical change to the extracted oil and gas.

Upon the conclusion of the trial, Judge Dietz initially ruled that the well equipment was essential to the oil and gas extraction process and was used to cause a direct physical change to the hydrocarbons in the wellbore. Judge Dietz later reheard the case and expressed concern that the physical change that occurred in the well was incidental to the process of bringing the oil and gas to the surface and was not directly caused by such equipment.

In his final signed judgment, Judge Dietz agreed with the Comptroller and reversed his prior ruling. Judge Dietz found that Southwest had not satisfied its burden of proof that the equipment used to extract oil and gas directly caused a physical change in the oil and gas extracted. Thus, the equipment that Southwest purchased for use in the extraction process was not exempt from Texas sales tax. At this time, it is unclear whether Southwest will appeal this decision.

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Notice: This client alert is for general information purposes only.

IRS Circular 230 Notice: To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any taxpayer for the purpose of (1) avoiding tax-related penalties under the U.S. Internal Revenue Code or (2) promoting, marketing or recommending to another party any tax-related matters addressed herein.

© 2020 Bracewell LLPNational Law Review, Volume II, Number 125

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About this Author

Elizabeth McGinley, Energy, Tax, Attorney, Bracewell law firm
Partner

Elizabeth McGinley is the head of the firm's tax practice. She represents a variety of clients in the oil and gas and electric power industries, including private equity firms investing in oil and gas exploration, production and infrastructure. Her experience includes complex debt and equity financing, joint ventures and project finance, as well as experience with volumetric production payment (VPP) transactions. 

In addition, Elizabeth has experience in partnership and corporate transactions including mergers and acquisitions and spin-off...

212-508-6173
Joe Hull, tax, attorney, Bracewell, law firm
Partner

With more than four decades of experience, Joe Hull's legal practice concentrates on federal, state and local taxation, including both planning and controversy work. Mr. Hull has substantial experience representing clients in tax matters in many industries, including real estate; oil, gas and petrochemical; financial; aerospace; equipment leasing; public finance; and high tech and telecommunications. Mr. Hull’s additional areas of practice are real estate development and finance, transactions, syndications and REITs; equipment leasing; partnerships and...

512-494-3611