Yellow Cab of Winchester

427 North Cameron Street Winchester VA 22601 (540)678-8294(TAXI)

June 1st, 2012 Mr. Michael S. Melson Director, Appeals and Ruling Virginia Department of Taxation 600 East Main Street Richmond Virginia 23219 Re: Reconsideration Addendum #1 Locality Assessing Tax: City of Winchester Taxpayer: Exectrans and Courier Service dba Yellow Cab of Winchester Business Tangible Personal Property Tax Date of Tax Commissioner Final Determination Letter: April 27, 2012

RECONSIDERATION ADDENDUM #1

Dear Mr Melson, Thank you for having me at your facility on Wednesday May 30th, 2012. I appreciate the time of your staff and their willingness to listen to the position of Exectrans and Courier Service LLC. Noel Sabel, in concluding the Reconsideration Conference, allowed both parties to continue to submit information in support of their position. We are submitting this letter titled Addendum #1 which will likely be followed with several more addenda in the next couple of weeks. Regarding the local commissioner's position considering the Personal Property Tax for Taxicabs, Ms Burkholder has stated her justification in person, via memorialized responses to the State Tax Commissioner as well as verbally during the Reconsideration Conference. Her position and justification for using the same methodology for automobiles(category 3) as taxicabs(category 8) is found in Subsection B where it states: B. Methods of valuing property may differ among the separate categories, so long as each method used is uniform within each category, is consistent with requirements of this section and may reasonably be expected to determine actual fair market value as determined by the commissioner of revenue Since the inception of this debate, Ms Burkholder has held that phrase, contending that the word may

is expressly permissive and that she was not forced or that it was not imperative that the methods be exclusive of one another. Though, I did not believe that this was a valid defense of her methodology because the conditions placed on that statement in part B are: 1. That the method is uniform within each category. 2. That it is consistent with the requirements of this section. 3. That it is expected to determine the actual fair market value. It is clear that even if Ms Burkholder's holding to the may phrase in Part B was valid, that two of the three conditions set forth there after could not be met. It would not be consistent with the requirements of the section(in whole and context) nor would it lead to the determination of the actual fair market value. I have previously submitted a plethora of evidence to support the above. However, as I continued to research and study the law and the construction of it, I started to question some of the local commissioner's assertions regarding Subsection B and her declaration that the statute postured as permissive not imperative. If what she says is true, then there is obviously an anomaly as well as a pink elephant in the room. Subsection A sets out the classifications of the subdivisions and then defines the respective methods which shall be used or in a few cases may be used. The methods in most of the subdivisions which are permissive always give options with them; ie... the commissioner may do this or may do that. To read this in context of the whole Section it is obvious that may means that she shall either do this or do that and not the commissioner may not do this or may not do that. The latter interpretation is absurd and no reasonable person would come to that conclusion unless of course there is a pink elephant that we are dealing with. With that, I respectfully submit the following definitions and legal construction of the word may:
may v. a choice to act or not, or a promise of a possibility, as distinguished from "shall" which makes it imperative. 2) in statutes, and sometimes in contracts, the word "may" must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative. The same careful analysis must be made of the word "shall." Non-lawyers tend to see the word "may" and think they have a choice or are excused from complying with some statutory provision or regulation. (See: shall) Copyright 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

MAY. To be permitted; to be at liberty; to have the power. 2. Whenever a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as shall. For example, the 23 H. VI. says, the sheriff may take bail, that is construed he shall, for he is compellable to do so. Carth. 293 Salk. 609; Skin. 370. 3. The words shall and may in general acts of the legislature or in private constitutions, are to be construed imperatively; 3. Atk. 166; but the construction of those words in a deed depends on circumstances. 3 Atk. 282. See 1 Vern. 152, case. 142 9 Porter, R. 390. A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

In the context of Section 58.1-3503 including Subsections A and B in their totality; that unless the word

is interpreted as in a statute which it legally is, it makes perfect sense that the word may in part B is not permissive for the sake of Subsection A(3) Subdivision 7,8.9; Subsection A(5) 4, 6-10; as well as Subsection A(17) 1-16. Any other interpretation of Subsection B, disenfranchises the Section as a whole and completely disregards the rest of the conditions following the initial may statement. There is absolutely no way that consistency can be maintained among the rest of the requirements in the section as a whole. To put this in pragmatic terms concerning: B. Methods of valuing property may differ among the separate categories. Considering the above legal definition of the word may, some categories can be the same or some can be discretionary however others must be different imperatively because of the Exclusions located in Subsection A- 3,5 and 17. For example:
11. Boats weighing under five tons and boat trailers, which shall be valued by means of a recognized pricing guide or a percentage or percentages of original cost. 12. Boats or watercraft weighing five tons or more, which shall be valued by means of a percentage or percentages of original cost.

Both of the above Subdivisions could potentially use the same methods to valuate their assessments or not and in either scenario, it wouldn't be inconsistent with the REQUIREMENTS of the Section as long as it could reasonably lead to the actual fair market value. I suggest, based on the legal definition of the word may, that A3,5,17 must ascribe the imperative use statutorily in order to maintain the consistency of the requirements of the entire Section that is in question for the purpose of this appeal. Best Regards,

Randy Cadmus