S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
TNS Mills, Inc., Respondent,
v.
South Carolina
Department of Revenue, Appellant/Respondent,
and
County of Cherokee,
Cherokee County School
District No. 1, and
Cherokee County
Council, Appellants.
Appeal From Richland County
William P. Keesley, Judge
Opinion No. 24810
Heard December 4, 1997 - Filed July 13, 1998
REVERSED
Frank W. Cureton and Margaret C. Pope, of Sinkler
& Boyd, P.A., of Columbia, for appellants,
General Counsel Harry T. Cooper, Jr., Chief Counsel
for Revenue Litigation Ronald W. Urban, and Counsel
for Revenue Litigation Sarah G. Major, all of the
South Carolina Department of Revenue, of Columbia,
for appellant/respondent.
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TNS MILLS, INC. v. SC DEPT. OF REVENUE, et al.
Moffatt G. McDonald, of Haynsworth, Marion, McKay
& Guérard, L.L.P., of Greenville, for respondent.
WALLER, A.J.: In 1992, respondent TNS Mills, Inc. filed
amended tax returns for tax years 1985 through 1991 asking for exemptions
for its pollution control equipment. After a hearing, the Commission of the
Department of Revenue1 refused TNS's request. The circuit court reversed
the Commission's decision. This appeal is from the order of the circuit court,
We reverse.
FACTS
TNS operates greige mills in Spartanburg and Cherokee Counties. TNS
was entitled to an exemption for pollution control equipment for the tax years
1986 through 1991 pursuant to S.C. Code Ann. § 12-37-220(A)(8) (Supp. 1980-
1992). Property tax returns have a line on which taxpayers report certain
pollution control equipment in order to have that amount exempted from the
assessed value of their property. On its tax returns for 1986 through 1991,
TNS left these lines blank.
Pollution control equipment typically forms an integral part of the
production process in a greige mill; therefore, assigning a separate value to
a greige mill's pollution control equipment is difficult. To remedy this
problem, the South Carolina Textile Manufacturer's Association (SCTMA) and
the Department negotiated and agreed in the mid-1980s that the Department
would reduce the assessed value of greige mills by 20%. TNS was not a
member of the SCTMA, and the Department reproachably did not publish the
policy, so TNS was unaware of the 20% compromise. The Department
assessed TNS's greige mills at 100% of their value throughout the late 1980s.
In 1992, TNS filed amended property tax returns with the Department
claiming a property tax exemption for pollution control equipment for tax
1 Until its name was changed in 1993, the Department was known as
the South Carolina Tax Commission. In 1993, it became the South Carolina
Department of Revenue and Taxation, and in 1996, its name was shortened
to the South Carolina Department of Revenue. Until February 1, 1995, the
Department was governed by three Commissioners. To avoid confusion, this
opinion will refer to the agency as the Department and the three men who
initially heard the case as the Commission.
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TNS MILLS, INC. v. SC DEPT. OF REVENUE, et al.
years 1986 through 1991. The Property Division of the Department (Property
Division) granted the exemptions and mailed amended assessment notices to
Spartanburg and Cherokee Counties, thereby reducing the assessed value of
TNS's mills and entitling TNS to a refund. Spartanburg County issued TNS
a refund in excess of $400,000. Cherokee County (County) and Cherokee
County School District Number I (School District) opposed the granting of the
exemptions and appealed to the Commission. After a hearing, the
Commission determined TNS was not entitled to the retroactive property tax
exemptions it was trying to claim. On appeal, the circuit court reversed the
decision of the Commission. County, School District, and Department,
referred to collectively hereafter as appellants, are appealing this decision.2
ISSUES
I. Did TNS fulfill the statutory requirements for applying for the pollution
control exemption when it filed its original tax returns?
II. Did the Department have the authority under section 12-4-730 of the
South Carolina Code to grant TNS a retroactive exemption?
III. Does section 12-37-975 of the Code give the Department the authority
to grant a retroactive exemption?
IV. Does section 12-47-420 of the Code allow a refund?
V. Did the Commission's decision violate equal protection?
VI. Did the Commission err when it refused to let James Brodie testify?
VII. Was the 20% policy a valid exercise of the Department's authority?
DISCUSSION
I Original tax returns
The circuit court found TNS did in fact timely apply for the exemptions
for pollution control equipment by merely signing its tax returns for the years
in question. Appellants argue this was error. We agree.
2The only issue about which appellants and appellant/respondent
disagree is whether the 20% policy was a valid exercise of the Department's
authority. With regard to this issue, the Department is a respondent.
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Initially, this issue should not have been addressed by the circuit court
because TNS admitted in its brief to the Commission that it filed its tax
returns for the years in question without claiming an exemption for pollution
control equipment. An issue conceded in a lower court may not be argued
on appeal. Ex parte McMillan, 319 S.C. 331, 461 S.E.2d 43 (1995).
Accordingly, the circuit court erred when it considered this issue.
If the issue had been disputed, the findings of the circuit court would
be erroneous. The General Assembly has the power to provide for methods
and procedures in applying for exemptions for the purpose of property taxes,
S.C. Const. Art. X, § 3. According to the General Assembly, a taxpayer does
not automatically get an exemption for pollution control equipment, but must
apply for it. During the tax years in question and at the time TNS filed its
amended returns, a taxpayer was required to file an application before the
sixteenth day of the fourth month after the close of the accounting period
regularly employed by the taxpayer for income tax purposes to claim an
exemption for pollution control equipment. S.C. Code Ann. § 12-4-720 (Supp.
1991-1992) (amended in 1994 and 1995); S.C. Code Ann. § 12-3-145(B) (Supp,
1985-1990) (repealed 1991). The Department was required to determine
annually which exemptions it would grant and notify the appropriate county
officials by June first of each year. S.C. Code Ann. § 12-4-710 (Supp. 1991-
1992); S.C. Code Ann. § 12-3-145(A) (Supp. 1985-1990) (repealed 1991).
The burden is on claimants to prove their rights to an exemption by
bringing themselves clearly within the conditions imposed by the statute.
York County Fair Assoc. v. South Carolina Tax Comm'n, 249 S.C. 337, 341,
154 S.E.2d 361, 363 (1967); see also Asmer v. Livingston, 225 S.C. 341, 82
S.E.2d 465, 466 (1954)(a refund of taxes is solely a matter of governmental
grace, and taxpayers seeking such relief must bring themselves clearly within
the terms of the statute authorizing a refund). One is estopped to claim an
exemption with respect to property included in the list of taxable properties
and for which no exemption has been claimed before the taxing officers. 84
C.J.S. Taxation § 226 (1954).
TNS did not clearly comply with the requirements for applying for an
exemption. Taxpayers may apply for exemptions separately from their tax
returns, thereby filing two forms instead of one. Or, as most taxpayers do,
they may apply for an exemption on their tax returns. TNS did not file a
separate application, nor did it apply on its tax returns. As noted above,
Schedule 55, Gross Plant Account Summary, appears on TNS's filed tax
forms. This schedule instructs the taxpayer to list gross capitalized cost of
seven different items in order to have their value exempted from the
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TNS MILLS, INC. v. SC DEPT. OF REVENUE, et al.
taxpayer's taxable property. Item number six is "Water & Air Pollution
Equip." In order to claim an exemption for this type of equipment, a
taxpayer must indicate the value of the equipment on line six and attach a
list of this type of equipment. On all of its returns, TNS left item number
six blank and did not attach a list, thereby including its pollution control
equipment in its taxable properties. Clearly, TNS did not intend to apply for
this exemption when it filed its tax returns.
The tax forms filed by TNS had the following preprinted language
above the preparer's signature line: "By filing this return within the time
prescribed by law, I hereby make application for exemption from county taxes
in accordance with the provisions of Section 12-37-220(A)(7)(8) Code of Laws
of South Carolina." Relying on the presence of preprinted language, the
circuit court found, "TNS made a request for all exemptions for pollution
control devices by executing this pre-printed form." Appellants argue this
finding is erroneous. We agree.
The preprinted language has effect only if the taxpayer acts as the form
requires by claiming an amount of exempted property on Schedule 55 and
separately listing property. The presence of this language without the
required information does not comprise an application for an exemption.
Furthermore, testimony at the hearing revealed the purpose of the preprinted
language was not to give the exemption to every taxpayer who signed a
return, but to enable a taxpayer to apply for an exemption and file tax
returns with the same form.
Accordingly, the lower court should not have decided this issue, and its
finding that TNS timely filed exemption applications for tax years 1986
through 1991 was erroneous because TNS's tax filings were too incomplete
to clearly satisfy the requirements of the code.
II. Authority to grant retroactive exemptions
The circuit court found the plain language and the history of S.C. Code
Ann. § 12-4-730 (Supp. 1992) gave the Department the authority to grant
retroactive exemptions. Appellants argue this was error. We agree.
A. Plain Language
Section 12-4-730 states,
The [Department], upon receipt of an application and upon proper
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investigation, may declare the real and personal property of a
property owner qualifying for an exemption from ad valorem
taxation identified in this chapter as exempt and shall certify the
exemption to the auditor's office in the county in which the
property is located. Upon certification by the [Department], the
auditor shall void any tax notice applicable to the property.
S.C. Code Ann. 12-4-730 (Supp. 1992). In construing statutory language, the
statute must be read as a whole, and sections which are part of the same
general statutory law must be construed together and each one given effect.
Higgins v. State, 307 S.C. 446, 415 S.E.2d 799 (1992). The Court must
presume the legislature did not intend a futile act, but rather intended its
statutes to accomplish something. State ex rel. McLeod v. Montgomery, 244
S.C. 308, 136 S.E.2d 778 (1964). The language of a tax exemption statute
must be given its plain, ordinary meaning and must be strictly construed
against the claimed exemption. John D. Hollingsworth On Wheels, Inc. v.
Greenville County Treasurer, 276 S.C. 314, 278 S.E.2d 340 (1981).
TNS asserts the lack of deadline in section 12-4-730 means the
Department can grant retroactive exemptions. However, this section must
be read together with the other sections in Article 7, and nothing in this
section modifies section 12-4-720(A)(2)'s mandatory deadline for applying for
an exemption.3 In fact, if 12-4-730 is interpreted as allowing retroactive
exemptions, the mandatory deadlines set by the General Assembly are
rendered meaningless. As the Commission noted, "[T]here would be no
purpose in establishing deadlines if failure to meet them was of no
consequence."
Furthermore, an interpretation allowing retroactive exemptions would
not fit with the procedural scheme set out by the General Assembly. The
Code requires the Department to make annual determinations concerning
exemptions and to notify the appropriate county officials of what property
3Section 12-4-720(A)(2) (Supp. 1991-1992) states, "Owners of property
exempt under [the pollution control exemption] shall file an application
before the sixteenth day of the fourth month after the close of the accounting
period regularly employed by the taxpayer for income tax purposes. . . ."
(emphasis added). Ordinarily, the use of the word "shall" in a statute means
that the action referred to is mandatory. South Carolina Dep't of Highways
and Pub. Transp. v. Dickinson, 288 S.C. 189, 191, 341 S.E.2d 134, 135 (1986).
The plain language is clear; a taxpayer is required to apply for the exemption
by the stated deadline.
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TNS MILLS, INC. v. SC DEPT. OF REVENUE, et al.
was exempted from taxation by June first. S.C. Code Ann. § 12-4-710 (Supp.
1992). The interpretation advanced by TNS would negate the purpose of
notifying county officials by June first because the information given them
would be worthless; the amount of exempted property, would change every
time the Department granted a retroactive exemption.
The plain language of these Code sections, when read together, show
the legislature intended to set clear deadlines for applying for exemptions as
part of an overall plan to enable counties and school districts to plan budgets
for each fiscal year. Any interpretation allowing the Department to grant
exemptions after the deadline would negate the benefit of this plan.
B. Statutory History
1. Brodie's Interpretation
In support of its construction of the statute, TNS points to the
interpretation James Brodie, the Director of the Property Division, gave to
section 12-4-730's predecessor, section 12-3-145(B). According to Brodie's July
3, 1990 memo which was sent to all assessors, auditor, treasurers, and tax
collectors, the new amendments4 to this section gave the Department the
authority to accept applications for exemptions at any time. This amendment
did not give the Department the authority to accept late applications, but
merely clarified that it had the authority to decide whether any property, not
just that of churches, parsonages, and burying grounds, met the requirements
for exemptions.
Although Brodie believed the Department had the authority to grant
retroactive exemptions, and exemptions may have been granted under this
erroneous view, neither the Commission nor the courts are bound by his
erroneous interpretation. Fennell v. South Carolina Tax Comm'n, 233 S.C.
43, 48, 103 S.E.2d 424, 427 (1958); Colonial Life & Accident Ins. Co. v. South
Carolina Tax Comm'n, 233 S.C. 129, 151, 103 S.E.2d 908, 919 (1958).
2. Other Statutory History
4TNS incorrectly argues Brodie's memo referred to the 1991 revision
which moved the procedure for applying for exemptions from section 12-3-145
to sections 12-4-710 through -760. However, Brodie's memo was written in
1990; the amendments he was addressing in his memo could not have been
the 1991 revisions which were not effective until July 1, 1991.
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According to the circuit court, "[t]he history of this statute demonstrates
that, at one time, almost all manufacturers were late in filing their
applications and that this statute was designed and amended to give [the
Department] the authority to accept late applications." We disagree.
As noted earlier, during the tax years in question, a taxpayer who
wished to file an application to exempt pollution control equipment had to do
so by the sixteenth day of the fourth month after the close of the accounting
period regularly employed by the taxpayer for income tax purposes.5 S.C.
Code Ann. § 12-3-145(B) (Supp. 1985-1990) (repealed 1991). The Department
was required to determine annually which exemptions it would grant and
notify the appropriate county officials by June first of each year. S.C. Code
Ann. § 12-3-145(A) (Supp. 1985-1990) (repealed 1991). For good cause shown,
the Department could waive the required deadline for applying for
exemptions, but it could not extend the deadline beyond the penalty date for
taxes due, and the late taxpayer was penalized. S.C. Code Ann. § 12-3-
145(F) (Supp. 1985-1990).
In 1985, the legislature added language to section 12-3-145(B) which
allowed the Department to declare churches, parsonages, and burying
grounds exempt. Act No. 3, 1985 S.C. Acts 5 (effective March 1, 1985). Two
months later, the legislature added a provision allowing churches and
parsonages to file an application for an exemption at any time. Act No. 53,
1985 S.C. Acts 95 (effective April 29, 1995, codified at S.C. Code Ann. §12-3-
146 (Supp. 1985)).
Testimony at the hearing revealed the procedure for applying for
exemptions outlined in section 12-3-145 created an administrative problem
because the deadline for applying for an exemption was two weeks earlier
than the deadline for filing returns. Since as a practical matter, most
taxpayers requested their exemptions with their returns, the Department
would have to deny exemptions for being late. Then the General Assembly
would grant extensions, and the Department would then grant the
exemptions it had previously denied.
In 1985, the General Assembly extended the deadline for filing
exemption applications for the 1981, 1982, 1983, 1984, and 1985 tax years
until July 1, 1985. Act No. 3, 1985 S.C. Acts 5. In 1987, the deadline for
applying for exemptions for the 1985, 1986, and 1987 tax years was extended
5For calendar year taxpayers like TNS, the deadline for applying for an
exemption would be April 15.
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TNS MILLS, INC. v. SC DEPT. OF REVENUE, et al.
until July 1, 1987. Act No. 64, 1987 S.C. Acts 126. In 1988, the deadline for
the 1985, 1986, 1987, and 1988 tax years was extended until July 1, 1988.
Finally, in 1990, the General Assembly granted its last extension, postponing
the deadline for exemption applications for the tax years 1988 and 1989 until
July 1, 1990.
In 1991, the legislature revised and recodified the procedure for
applying for property tax exemptions. Act No. 50, 1991 S.C. Acts 152
(codified at S.C. Code Ann. §§ 12-4-710 to 760 (Supp. 1991)). Substantively,
the requirements remained the same. However, section 12-3-146, which
allowed churches and parsonages to apply for an exemption at any time, was
omitted. Section F, which gave the Department the discretion to accept late
applications for exemptions before the penalty date for paying taxes, was also
omitted. After the 1991 revision, the legislature has not again extended the
deadline for applying for exemptions.
Contrary to the lower court's holding, the legislative history of these
statutes does not show the Department has the authority to accept late
applications; in fact, the only inference arising from the legislative history is
that only the General Assembly may extend the application deadline. The
legislative history indicates the General Assembly did not want the deadline
for applying for extensions to be discretionary, so it took away the
Department's authority to grant even short term extensions. Furthermore,
since the General Assembly has not granted another extension since before
the 1991 revision, we can infer it intended for the revision to end the practice
of granting extensions.
Since nothing in the plain language or the history of these procedural
statutes gives the Department the authority to grant retroactive exemptions,
the lower court erred in finding the Department could do so.
III. Section 12-37-975
The circuit court found that S.C. Code Ann. § 12-37-975 (Supp. 1992)
gave the Department the discretion to accept amended returns filed after the
date they were due and that the Department properly exercised its discretion
here. Appellants argue the court should not have reached this issue because
it was not raised to the Commission. We agree. This issue was neither
raised to nor ruled on by the Commission; therefore, the circuit court erred
in addressing it. Kiawah Resort Assocs. v. South Carolina Tax Comm'n, 318
S.C. 502, 458 S.E.2d 542 (1995) (the circuit court ordinarily may not consider
issues that were not raised to and ruled on by the administrative agency).
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TNS MILLS, INC. v. SC DEPT. OF REVENUE, et al.
If the issue had been raised, this section does not provide authority for
granting the relief requested by TNS. Section 12-37-975 provides:
The Department of Revenue may permit any person to substitute
an amended return for the original return up to the last day
prescribed for filing the return, including any extension of time
granted by the department. The department in its discretion
may accept or reject an amended return filed after the time
prescribed for filing the return.
S.C. Code Ann. § 12-37-975 (Supp. 1992). Statutes, as a whole, must receive
practical, reasonable, and fair interpretation, consonant with the purpose,
design, and policy of lawmakers. Whiteside v. Cherokee County Sch. Dist.
No. 1, 311 S.C. 335, 428 S.E.2d 886 (1993). Subtle or forced construction of
statutory words for the purpose of expanding a statute's operation is
prohibited. Walton v. Walton, 282 S.C. 165, 318 S.E.2d 14 (1984).
The circuit court failed to recognize the distinction between amended
returns and applications for exemptions. This section may allow the
Department to accept an amended tax return, but to interpret it to allow
them to grant a retroactive exemption effectively writes the deadlines for
applying for an exemption out of the Code. Furthermore, the circuit court's
interpretation creates an absurd distinction; the deadlines for applying for
exemptions would apply to taxpayers who applied on separate forms, but the
deadlines would not apply to taxpayers who applied on their tax returns.
Consequently, if the issue had been preserved, the circuit court wrongly gave
a forced interpretation to this section, thereby expanding its operation to
allow TNS the relief it requested.
IV. Section 12-47-420
The circuit court relied on S.C. Code Ann. § 12-47-420 (Supp. 1992)
(repealed by Act No. 60, 1995 S.C. Acts 405) when it found in favor of TNS.
That section stated:
Whenever after due hearing the Commission by majority vote
shall determine that any tax has been paid under an erroneous,
improper or illegal assessment, the Commission shall order the
officer having custody of the tax so erroneously, improperly or
illegally paid to refund it . . . .
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Appellants argue this issue is procedurally barred and the court's reliance on
this statute was misplaced. We agree.
To the Commission, TNS argued this section supported its argument
that the plain meaning of section 12-4-720(A) gave the Commission the
authority to grant retroactive exemptions. TNS claimed that if the
Department had the authority to grant a retroactive exemption, then this
section provided for a refund. The Commission did not rule on the meaning
of this section. Then, for the first time, TNS argued to the circuit court that
this section standing alone allowed a refund based on American Hardware
Supply Co. v. Whitmire because the assessment was erroneous. 278 S.C. 607,
300 S.E.2d 289 (1983). Since this issue was not raised to and ruled on by
the Commission, it is procedurally barred. Kiawah Resort Assocs. v. South
Carolina Tax Comm'n, 318 S.C. 502, 458 S.E.2d 542 (1995).
In any event, section 12-47-420 does not authorize a refund for TNS.
The Court in American Hardware ruled a taxpayer who paid property taxes
on exempt property during tax years 1974, 1975, and 1976 was entitled to a
refund under section 12-47-420. During those years, taxpayers were not
required to file an application in order to receive an exemption; by law, the
property was automatically exempt. In that case, the assessment of
automatically exempt property was ruled to be erroneous, illegal and
improper, and the taxpayer was granted a refund. Here, TNS's property was
not automatically exempt; it was required to apply for an exemption which
it failed to do. Consequently, its property was not exempt and it did not pay
taxes on exempt property. The assessment of its property was therefore not
erroneous, illegal or improper, and this statute does not authorize a refund.
V. Equal Protection
The court below found that despite TNS's failure to meet the statutory
requirements for an exemption, it could receive a retroactive exemption
because it had been treated differently from other similarly situated
taxpayers in violation of the equal protection clauses of the federal and state
constitutions. U.S. Const. amend. XIV; S.C. Const. art. 1, § 3. Appellants
argue the lower court's ruling was erroneous because TNS's equal protection
argument was procedurally barred and because TNS cannot establish a
violation of equal protection. Even if this argument were not procedurally
barred, we agree the lower court erred in finding an equal protection
violation.
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In order to establish an equal protection violation, a party must show
that similarly situated persons received disparate treatment. Grant v. South
Carolina Coastal Council, 319 S.C. 348, 354, 461 S.E.2d 388, 391 (1995).
TNS cannot show it is similarly situated to another group of taxpayers.
The lower court believed TNS was similarly situated to two different groups
of taxpayers. The first group identified in the order are TNS's competitors
who received the benefit of the unpublished 20% policy. However, TNS is not
similarly situated to this group; the group of competitors who benefitted from
the 20% policy only received this benefit because they applied for the
pollution control exemption. As it admitted to the Commission, TNS did not
apply. If, for example, TNS had applied and been given a 10% exemption,
it could claim it was treated differently from other similarly situated
taxpayers. However, TNS did not apply, and it cannot complain of disparate
treatment.
The second group of similarly situated taxpayers identified by the
circuit court were other manufacturers who were granted exemptions in spite
of late applications. The record does not show these taxpayers and TNS were
similarly situated. As noted earlier, the Property Division failed to enforce
the deadline against taxpayers who applied for their exemptions when they
filed their returns and therefore missed the April 16 deadline by two weeks.
These taxpayers were not similarly situated to TNS who filed years, not
weeks, after the deadline. Furthermore, the record contains no evidence that
any taxpayer other than TNS received a refund as a result of the Property
Division's interpretation.
Moreover, TNS cannot establish "arbitrary and purposeful
discrimination" on the part of the Commission. As discussed earlier, the
Department does not have the authority to waive the application deadline
and annual determination requirements of Article 7. The Commission was
correcting the erroneous view of the Property Division, not singling out TNS
for unfair treatment. Neither the Commission nor the courts are bound by
the previous erroneous interpretation of the Property Division. Fennell v.
South Carolina Tax Commission, 233 S.C. 43, 4-8, 103 S.E.2d 424, 427 (1958);
Colonial Life & Accident Ins. Co. v. South Carolina Tax Commission, 233
S.C. 129, 151, 103 S.E.2d 908, 919 (1958).
VI. Exclusion of Witness James Brodie
During the hearing in front of the Commission, TNS offered the
testimony of James Brodie, the Chairman of the Property Division. Brodie
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authored the documents establishing the 20% standard exemption for
pollution control equipment and establishing the Department's policy
regarding retroactive tax exemptions. Brodie was also the employee who
confirmed TNS's refund. The Commission did not allow Brodie to testify.
The circuit court found "the Commission utilized an improper procedure for
disqualifying a witness that would require a remand, at the very least."
Appellants argue this finding was erroneous. We agree.
At common law, all witnesses were presumed to be competent except
very young children.6 South Carolina Dep't of Social Servs. v. Doe, 292 S.C.
211, 355 S.E.2d 543 (Ct. App. 1987). A witness has to be capable of
expressing himself and has to understand the obligation to tell the truth to
be qualified to testify. State v. Green, 267 S.C. 599, 230 S.E.2d 618 (1976);
Abbott v. Columbia Mills Co., 110 S.C. 298, 96 S.E. 556 (1918). The
determination of the competency of a witness is a matter that rests within
the discretion of the trial court, or as here, the Commission; their
determination should not be reversed absent a clear abuse of discretion. In
re Robert M., 294 S.C. 69, 362 S.E.2d 639 (1987).
At the hearing, Brodie's psychiatrist testified she did not believe Brodie
would be a reliable witness because lie was suffering from major depression
and the stress of testifying would render him unable to speak. According to
the psychiatrist, Brodie could not speak in stressful situations, and his
anxiety would cause him to "say anything just to get out of the hot seat."
She believed being forced to testify would be detrimental to his treatment.
The Commission decided to exclude Brodie.
Although it did not make these arguments to the Commission, TNS
now argues that a court cannot exclude a witness merely because of mental
illness and that the psychiatrist did not state to a reasonable degree of
medical certainty that Brodie would more likely than not lie. However, the
Commission's decision to exclude Brodie was not an abuse of its discretion
since the only testimony offered showed Brodie would have been unable to
express himself on the stand and would have possibly not told the truth.
Also, TNS cannot prove it was prejudiced by the Commission's decision.
First, it failed to make a proffer of what Brodie's testimony would have been.
See State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991)(where there is no
proffer of excluded testimony, the Court is unable to determine whether the
6This hearing was held on March 24, 1994, before the South Carolina
Rules of Evidence were adopted.
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TNS MILLS, INC. v. SC DEPT. OF REVENUE, et al.
complaining party was prejudiced by the refusal to admit the testimony into
evidence). Second, the record indicates TNS requested that Brodie be allowed
to testify by affidavit, answering questions submitted by the parties.
Although TNS suggested this procedure, it did not avail itself of the
opportunity to question Brodie in this manner as did appellants. Accordingly,
since the Commission's decision was supported by the evidence and TNS
cannot prove it was prejudiced, the circuit court erred when it found the
Commission had abused its discretion by excluding Brodie.
VII. 20% Policy7
Appellants County, School District, and County Council argue the 20%
policy on which TNS based its retroactive exemption is illegal. Since TNS
should not have been granted a retroactive exemption, this issue is moot and
need not be addressed.
CONCLUSION
Accordingly, the opinion of the circuit court is reversed, and the
Commission's decision that the pollution control exemptions may not be
retroactively granted to TNS is reinstated.
REVERSED.
FINNEY, C. J. , TOAL, MOORE and BURNETT, JJ. , concur .
7Again, this is the only issue raised by appellants County, School
District, and County Council with which the Department did not agree.
Therefore, the Department will be a respondent with regard to this one issue.
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