Did the 1981 rewrite of Public Resources Code section 25134 change section 6353's earlier incorporated definition of cogeneration technology?

Plain-English summary

Section 6353 was amended effective January 1, 1979, to incorporate by reference the definition of “cogeneration technology” then found in Public Resources Code section 25134. In 1981, the Legislature rewrote section 25134, removed that definition, and substituted a definition of “cogeneration.”

An attorney asked what the later rewrite did to section 6353. Board staff's stated position was that a statute adopting another statute by reference is not changed by a later modification or repeal of the referenced statute unless the Legislature expresses or implies a contrary intent.

Because staff found no contrary legislative intent, it continued to interpret section 6353 using section 25134 as originally enacted and gave no effect to the 1981 amendment for that incorporated definition.

Citations and references

• California Revenue and Taxation Code section 6353 (as cited)
• California Revenue and Taxation Code section 6355 — cited only as an earlier monetized-bullion incorporation analogy
• California Public Resources Code section 25134, original enactment and 1981 rewrite (as cited and characterized)
• Stats. 1981, chapter 952, section 5 — cited on the official annotation page but not in the official PDF
• Telephone conversation with redacted attorney D--- R--- asking the amendment's effect on section 6353 — conversation referenced without date, client, facts, notes, question text, or separate record in the official PDF
• Unidentified earlier Board experience with section 6355 and monetized bullion — analogy referenced without memorandum, ruling, annotation, date, analysis, or supporting record in the official PDF
• Original and amended statutory texts, January 1, 1979 section 6353 amendment, 1981 section 25134 rewrite, and legislative intent materials — changes summarized; complete session-law citations, bills, histories, committee materials, enrolled text, and analyses not reproduced in the official PDF
• Official Annotation 275.0500's added section 6353 expansion quotation, Stats. 1981 citation, and full original cogeneration-technology definition — current annotation supplies text and citation absent from the PDF but no underlying legislative-history or implementation record
• Possible later statutory amendment, administrative interpretation, transaction, audit, assessment, refund claim, appeal, judicial decision, or other agency action — no follow-up or final outcome supplied in the official PDF

Source

• Annotated Legal Opinions collection: https://cdtfa.ca.gov/taxes-and-fees/annotations-menu.htm
• Annotation page: https://cdtfa.ca.gov/lawguides/vol2/suta/275-0000-all.html
• Original supporting opinion: https://cdtfa.ca.gov/lawguides/annotations/275-0500.pdf

Original ruling text

State of California

Board of Equalization

Memorandum

To:

Gary J. Jugum

From:

Donald J. Hennessy

Subject:

Section 6353, Cogeneration Technology

275.0500

Date:

December 29, 1983

As the result of a telephone conversation with Attorney D--- R---, (XXX) XXX-XXXX, I have discovered that section 6353’s “cogeneration technology” provision now presents an “incorporation by reference” problem such as we earlier experienced with section 6355, “monetized bullion”. Effective January 1, 1979, section 6353 was amended to adopt by reference section 25134 of the Public Resources Code. In 1981, the Legislature rewrote section 25134, repealing the definition of “cogeneration technology”, and replacing it with simply a definition of “cogeneration”. Mr. R---’s question was, of course, what effect the Board staff believed this amendment had on section 6353. I told him that it was our position that a statute which adopts by reference another statute is unaffected by modification or repeal of the latter in the absence of express or implied legislative intent to the contrary. Since the Legislature stated no contradictory intent here, I told him we would interpret section 6353 as referring to section 25134 as originally enacted and would give no effect to the 1981 amendment.

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