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AGO Opinion 98017

Authority of the Nebraska Corn Board to Grant Refunds of Corn Checkoff Fees
Opinion 98017

DATE: March 4, 1998

SUBJECT: Authority of the Nebraska Corn Board to Grant Refunds of Corn Checkoff Fees

REQUESTED BY: Nebraska Corn Board




WRITTEN BY: Don Stenberg, Attorney General

Steve Grasz, Deputy Attorney General




Pursuant to the Nebraska Corn Resources Act, a fee is levied

on all corn sold through commercial channels or delivered in

Nebraska. Neb. Rev. Stat. Ann. § 2-3623 (Mich. 1997 Supp.). This

excise tax or "checkoff" fee is also paid when a loan is made to

producers under federal programs where the corn is pledged as

security for the loan. Neb. Rev. Stat. Ann. § 2-2628 (Michie 1997

Supp.).




You have requested an Attorney General's Opinion as to the

authority of the Nebraska Corn Board (hereinafter the "Board") with

respect to the granting of certain refunds of checkoff fees to corn

producers. Specifically, you have asked "what authority does the

Nebraska Corn Board have in granting a refund to producers who

purchase their loan corn back to feed their livestock after the

thirty day deadline as described in the Corn Resource Act?"




The Nebraska Corn Resources Act provides, in pertinent part:




In the case of a pledge or mortgage of corn as

security for a loan under the federal price support

program or other government agricultural loan programs,

the fee shall be deducted from the proceeds of such loan

at the time the loan is made. If, within the life of the

loan plus thirty days after the collection of a fee for

corn that is mortgaged as security for a loan under the

federal price support program or other government

agricultural loan programs, the grower decides to

purchase the corn and use it as feed, the grower shall be

entitled to a refund of the checkoff fee previously paid.

The refund shall be payable by the board upon the

grower's written application to the board for a refund of

the amount deducted. Each application for a refund by a

grower shall have attached thereto proof of the tax

deducted.




Neb. Rev. Stat. Ann. § 2-3628 (Mich. Supp. 1997) (emphasis added).




The wording of the above quoted statutory deadline for

checkoff refunds is relatively new. Prior to July 19, 1996, the

statute provided that such a refund was available only within six

months of the time the loan was made. See LB 1336 (Neb. Laws

1996). The legislative history of this provision shows that the

current language was intended to "extend[] the period of time under

which a producer may request a refund of previously deducted fees

for certain corn which he or she decides to use as feed rather than

sell." Committee Records on LB 1336, 94th Neb. Leg., 2nd Sess.

(1996). The former statute authorized refunds only for six months

after the loan was made. At the committee hearing on LB 1336,

Senator Klein explained the purpose of the change and compared the

old and new language. However, nothing in the legislative history

indicates any intent to authorize refunds beyond the "life of the

loan plus thirty days." Committee Records on LB 1336, 94th Neb.

Leg., 2nd Sess., 42 (January 30, 1996).




It is quite clear from a plain reading of the statute that the

Board has authority to grant refunds to producers within the life

of the loan plus thirty days. Although the statute does not

reference refunds after that time, it is a general principle of

statutory interpretation that mention of one thing implies

exclusion of another. "Stated another way, an affirmative

description of cases in which certain powers may be exercised

implies a negative on exercise of such powers in other cases." Op.

Att'y Gen. No. 95067 (Aug. 28, 1995). See State Board of

Agriculture v. State Racing Comm., 239 Neb. 762, 478 N.W.2d 270

(1992). It is also a basic rule of law that a state agency has no

power or authority other than that specifically conferred by

statute or by construction necessary to accomplish the plain

purpose of the statute. See In re Application A-16642, 236 Neb.

671, 463 N.W.2d 591 (1990); Op. Att'y Gen. No. 95067.




In the present case, the Legislature has expressly authorized

the Board to grant refunds to producers within the life of a loan

plus thirty days (provided other conditions of the statute are

met). In so doing, the Legislature limited the authority of the

Board with respect to the payment of refunds. Consequently, the

Board has no authority to grant refunds to producers after the

statutory deadline.




Sincerely,




DON STENBERG

Attorney General








Steve Grasz

Deputy Attorney General