* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 16, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-60296

 

In the Matter of: SUPERIOR BOAT WORKS INC.

Debtor

---------------------------------------------

SUPERIOR BOAT WORKS INC.,

Appellant,

versus

MISSISSIPPI STATE TAX COMMISSION,

Appellee.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

(4:02-CV-120)

--------------------

Before WIENER, BARKSDALE, AND DENNIS, Circuit Judges. 

PER CURIAM:*

Appellant Superior Boat Works, Inc. (“Superior”) appeals the

district court’s reversal of the bankruptcy court’s holding that

the transaction between Superior and a third party, Lady Luck

Mississippi, Inc. (“Lady Luck”), was, in effect, non-taxable. As

we disagree with the district court’s reversal of the bankruptcy
1 Section 27-65-17 provides:

Upon every person engaging or continuing in this state

in the business of selling any tangible personal

property whatsoever there is hereby levied, assessed

and shall be collected a tax equal to seven percent

(7%) of the gross proceeds of the retail sales of the

business, except as otherwise provided herein.

MISS. CODE. ANN. § 27-65-17.

2 Section 27-65-21 provides:

Upon every person engaging or continuing in this state

in the business of contracting or performing a contract

or engaging in any of the activities, or similar

activities, listed below for a price, commission, fee

or wage, there is hereby levied, assessed and shall be

collected a tax equal to three and one-half percent (3-

2

court’s order, we reverse the ruling of the district court and

reinstate the judgment of the bankruptcy court.

I. Facts and Proceedings

Lady Luck and Superior entered into a contract in which

Superior agreed to perform repair and construction work in

Greenville, Mississippi on a barge owned at all times by Lady Luck.

The contract required Superior to transform the barge into a

floating gaming vessel, the LADY LUCK I. After Superior delivered

the LADY LUCK I to Lady Luck in Natchez, Mississippi, Superior

filed for relief under Chapter 11 of the United States Bankruptcy

Code. Appellee Mississippi State Tax Commission (“MSTC”) filed a

proof of claim for taxes due on the transaction between Superior

and Lady Luck. The MSTC asserted that Superior owed either (1)

retail sales tax under Mississippi Code Annotated § 27-65-17,1 or

(2) contractor’s sales tax under Mississippi Code Annotated § 27-

65-21.2
1/2 %) of the total contract price or compensation

received, including all charges related to the contract

such as finance charges and late charges, from

constructing, building, erecting, repairing, grading,

excavating, drilling, exploring, testing or adding to

any building, . . . any other improvement or structure

or any part thereof when the compensation received

exceeds . . . $10,000. Such activities shall not

include constructing, repairing or adding to property

which retains its identity as personal property.

MISS. CODE ANN. § 27-65-21(a)(i) (emphasis added).

3 This exemption provides:

The tax levied by this chapter shall not apply to the

following:

. . . 

The gross proceeds of sales of dry docks, offshore

drilling equipment for use in oil exploitation or

production, vessels or barges of fifty (50) tons

displacement and over, when sold by the manufacturer or

builder thereof.

MISS. CODE ANN. § 27-65-101(1)(c).

3

The bankruptcy court held that Section 27-65-21, the

contractor’s tax provision, did not apply to the transaction

between Superior and Lady Luck because the LADY LUCK I remained

tangible personal property, specifically, a floating gaming vessel,

at the time that Superior re-delivered it to Lady Luck. The

bankruptcy court further held that, even though the transaction was

taxable under Section 27-65-17, the retail sales tax provision, the

transaction was exempt under Section 27-65-101(1)(c) from any

retail sales tax.3 In effect, the bankruptcy court ruled that the

transaction between Superior and Lady Luck was exempt from either

tax.

The MSTC appealed the bankruptcy court’s order to the district

court. The district court reversed the bankruptcy court’s
4 The MSTC does not cross-appeal the district court’s and

the bankruptcy court’s holdings that Section 27-65-101(1)(c)

exempts this transaction from the retail sales tax provision in

Section 27-65-17. The MSTC has thus waived its right to contest

this ruling. See, e.g., Marts v. Hines, 117 F.3d 1504, 1508-09

(5th Cir. 1997) (en banc) (“In the absence of a cross-appeal, an

appellee cannot attack a [district court’s] decree with a view

either to enlarging his own rights thereunder or of lessening the

rights of his adversary.” (quoting Morley Constr. Co. v. Maryland

Cas. Co., 300 U.S. 185, 192 (1937) (quotations omitted)). 

4

determination that the LADY LUCK I remained tangible personal

property. Accordingly, it held that Section 27-65-21’s

contractor’s sales tax provision applied to the transaction. The

district court based its conclusion on the following: (1) The

contract between the parties required delivery of a “permanently

moored vessel;” (2) Superior or its agents moored the LADY LUCK I

to the bank of the Mississippi River; and (3) when Superior moored

the LADY LUCK I, it became an extension of the land. The district

court expressed agreement, however, with the bankruptcy court’s

ruling that, if Section 27-65-17’s retail sales tax provision had

applied, the exemption in Section 27-65-101(1)(c) would have

exempted the transaction from retail sales tax. Superior appeals

the judgment of the district court to the extent that it reversed

the bankruptcy court.4

II. Analysis

We review the decision of a district court, sitting as an

appellate court, by applying the same standards of review to the

bankruptcy court's findings of fact and conclusions of law as
5 See Carrieri v. Jobs.com Inc., 393 F.3d 508, 517 (5th Cir.

2004) (citing United States Dep’t of Educ. v. Gerhardt (In re

Gerhardt), 348 F.3d 89, 91 (5th Cir. 2003)).

6 Id. (citing Williams v. Int’l Bhd. of Elec. Workers, Local

520 (In re Williams), 337 F.3d 504, 508 (5th Cir. 2003)).

7 Id. (quoting Walker v. Cadle Co. (In re Walker), 51 F.3d

562, 565 (5th Cir. 1995)) (quotations omitted).

8 Id. (citing In re Missionary Baptist Found. of Am., Inc.,

712 F.2d 206, 209 (5th Cir. 1983)).

9 We need not and do not reach these arguments because we

hold that the LADY LUCK I has remained tangible personal property

at all pertinent times. In any event, these arguments miss the

mark. The parties’ reliance on cases such as Pavone v.

Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir.

1995), and King v. Grand Casinoe of Mississippi, Inc., 697 So. 2d

439, 442 (Miss. 1997), is misplaced. In Pavone and King, for

example, the courts treated whether a floating gaming casino was

a vessel for purposes of the Jones Act and the general maritime

law, not for purposes of Mississippi state tax law or any other

purpose.

5

applied by the district court.5 A bankruptcy court’s findings of

facts are reviewed for clear error and its conclusions of law de

novo.

6 Under the clearly erroneous standard, we will reverse only

if, on the entire record, we are left with the definite and firm

conviction that a mistake has been made.7 When a factual finding

is premised on an improper legal standard or a misapplication of a

proper legal standard, we review such a finding de novo.

8

In all three courts, the parties have heatedly disputed the

facts surrounding the mooring of the LADY LUCK I and its identity

as a vessel.9 The parties’ focus on these disputes is misplaced

and does not detract from the undeniable legal conclusion that,

irrespective of (1) whether the LADY LUCK I was a vessel, (2) who
10 See, e.g., Motorola Communications & Elecs., Inc. v.

Dale, 655 F.2d 771, 773 (5th Cir. 1982) (citing Richardson v.

Borden, 42 Miss. 71, 75-76 (Miss. 1868)) (describing Mississippi

law on fixtures); Bondafoam v. Cook Constr. Co., Inc., 539 So. 2d

655, 658 (Miss. 1988) (same); Ziller v. Atkins Motel Co., 244 So.

2d 409, 411 (Miss. 1971) (same).

11 See Watson v. Caffery, 109 So. 2d 862, 866 (Miss. 1959)

(holding that “[t]he term ‘personal property’ in its broadest

legal signification includes everything the subject of ownership

not being land or any interest in land . . . .”).

6

moored it to the bank, or (3) when it was moored, the LADY LUCK I

never lost its identity as tangible personal property.

Consequently, the transaction between Superior and Lady Luck is not

taxable under Section 27-65-21, the contractor’s tax provision.

Whether we apply Mississippi state law on fixtures or improvements10

or the Mississippi courts’ judicial construction of the terms “real

property” and “personal property,”11 we inevitably reach the

ultimate conclusion that nothing in the record demonstrates that

the LADY LUCK I has ever lost its identity as tangible personal

property. 

The parties do not dispute that the LADY LUCK I began as

tangible personal property. The LADY LUCK I is not land; neither

is an ownership interest in her an interest in land: The river

flows between the LADY LUCK I and the bank; the gangways are the

only means of ingress and egress to and from the bank; it rises and

falls with the river; the utility lines, mooring lines, and anchors

are easily detachable from the bank; it can be unhooked from the

bank, moved elsewhere, and re-hooked without any damage to itself
12 We also note that this issue will not arise again. The

Mississippi legislature has enacted Section 27-65-18, which

provides for a three and a half per cent tax on the gross

proceeds of sales and construction of floating structures. See

MISS. CODE ANN. § 27-65-18.

7

or the land. The bankruptcy court correctly classified the LADY

LUCK I as tangible personal property, and the district court erred

when it reversed that court. 

III. Conclusion

We hold as a matter of law that at all pertinent times, the

LADY LUCK I was tangible personal property for purposes of taxation

under Mississippi law. As such, it was not subject to the

contractor’s sales tax, but was subject only to the retail sales

tax, from which the transaction between Superior and Lady Luck was

exempt under the provisions of Mississippi Code Annotated § 27-65-

101(1)(c). We therefore reverse the district court and reinstate

the judgment of the bankruptcy court.12 

REVERSED; BANKRUPTCY JUDGMENT REINSTATED.