author: VOGEL, P.J.

text:
    In re the MARRIAGE OF Daniel A. McGINLEY and Cassandra McGinley Upon the Petition of Daniel A. McGinley, Petitioner-Appellee, and Concerning Cassandra McGinley, Respondent-Appellant.
    No. 06-0068.
    Court of Appeals of Iowa.
    Oct. 11, 2006.

      Brad McCall of Brierly Charnetski, L.L.P., Grinnell, for appellant.
    Lee M. Walker of Walker & Billingsley, Newton, for appellee.
    Considered by VOGEL, P.J., and ZIMMER and VAITHESWARAN, JJ.
   VOGEL, P.J.

Cassandra McGinley appeals from the district court’s entry of declaratory judgment, limiting her entitlement to the early-retirement pension benefits of her former husband, Daniel McGinley. Concluding the declaratory judgment inequitable to Cassandra, contrary to the decretal court’s intent and Iowa case law, we reverse and remand.

I. Background Facts and Proceedings.

Cassandra and Daniel’s twenty-two year marriage was dissolved by decree entered in 1996. At the time of the dissolution, Daniel had twenty-one years and five months of credited service as an employee of Maytag Corporation, as well as a vested interest in Maytag’s Pension and Disability Plan for Hourly Employees. The decree provided:

The Court further finds that [Cassandra] shall receive one-half (1/2) of [Daniel’s] interest, as of the date of entry of this Decree, in any and all Maytag pension plans in which [Daniel] is a participant.

A Qualified Domestic Relations Order (QDRO) was approved by the dissolution court in December 1996. The QDRO provides in pertinent part:

7. Assignment of Benefits to Alternate Payee
... Cassandra McGinley, (the “Alternate Payee”) is hereby assigned 50% (fifty percent) of the marital portion of Daniel McGinley’s (the “Participant”) vested accrued benefit under the Maytag Corporation Employees Retirement Plan (the “Plan”).
8. Determination of Marital Portion of Benefit
(a) The marital portion of the Participant’s accrued benefit under the Plan is an amount equal to the actuarial equivalent of the vested accrued benefit of the Participant under the Plan determined as of the participant’s Earliest Retirement Age .... under the Plan (multiplied by the fraction “years of benefit service while married” -h “total years of benefit service”)
9. Timing, Form, and Amount of Benefit Payment to Alternate Payee
The benefits hereby ordered, assigned, and transferred to the Alternate Payee shall commence as of a date selected by Alternate Payee with the approval of the Plan Administrator. Such date shall not be earlier than the date Participant could commence receiving benefits under the Plan disregarding Participant’s continuing employment by an employer sponsoring the Plan, but shall not be later than the date the Participant retires .... If the Plan does not then permit a lump sum benefit payment .... the Alternate Payee will be provided the opportunity to elect to receive the actuarial equivalent value of such benefits in any form then available to the Participant (or that would then be available to the Participant had the Participant then separated from service)....
The Participant’s Earliest Retirement Age means ...:
(a) the date of which the Participant is entitled to a distribution of his benefits under the Plan....

After an additional eight and one-half years of employment, Daniel opted to take Maytag’s early retirement benefit commonly referred to as “30 and out.” Pursuant to this option, Maytag set the monthly benefit at $2600.00. This sum was arrived at by first taking Daniel’s basic monthly pension benefit of $1095.00 and reducing it to $295.10 because of the early retirement. A “subsidy” of $133.05 was then added, bringing the amount up to $428.15. An “early retirement supplement” set by the Collective Bargaining Agreement (the Agreement) added $2171.85 which brought the total back up to the $2600.00 amount. The subsidy and supplemental payments will end on May 1, 2017, when Daniel will be entitled only to the basic monthly benefit of $1095.00 (with periodic increases under the terms of the pension plan).

Daniel filed a petition for declaratory judgment in April 2005, seeking to restrict Cassandra’s entitlement to the additional subsidy ($133.05) and supplement ($2171.85) he would receive under the “30 and out” option. The district court framed the issue as,

[WJhether Cassandra is entitled to 35.5% of the entire benefit available to Daniel which includes his ‘early retirement subsidy’ and ‘early retirement supplement’ (the entire $2600.00), or whether Cassandra is entitled to 35.5% of only the amount of Daniel’s reduced monthly basic benefit of $295.10 ($428.15— $133.05).

After noting the pertinent language of the QDRO regarding Cassandra’s entitlement to one-half the marital portion of benefits, the district court found, “based upon the undisputed fact that Daniel was not eligible for ’30 and out’ at the time the Decree was granted, that Cassandra is not entitled to any portion of the supplement which Daniel receives.” Cassandra appeals.

II. Scope of Review.

The district court tried the declaratory judgment petition in equity, and our review is de novo. Kragnes v. City of Des Moines, 714 N.W.2d 632, 637 (Iowa 2006).

III. Early Retirement Benefits.

Cassandra contends on appeal that freezing her out of any entitlement to Daniel’s early retirement subsidy and supplemental payments is grossly inequitable. Under the district court’s ruling, the amount Cassandra would receive is 35.5% of $295.10, or $104.76 per month, leaving Daniel the balance of $2495.24 per month. While Daniel does not dispute these figures, he asserts that Cassandra is not entitled to either the subsidy or supplement as they represent post-dissolution property. He urges us to accept the district court’s rationale that because Daniel was not eligible for the “30 and out” at the time of the dissolution decree, that benefit should not be considered a divisible marital asset.

Obviously, Daniel did not qualify for early retirement at the time of the dissolution, as he was still fully employed and not yet of retirement age. Nonetheless, he did have over twenty-one years of employment accumulated during the marriage, which together with the post-dissolution years of employment later qualified him for early retirement. To hold that a spouse would only benefit from the “30 and out” option if the employee was eligible for it at the time of the dissolution would essentially allow a fair division of pension benefits only for those who were at retirement age at the time of a dissolution. Such an absurd result cannot stand under an equitable distribution analysis. See In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct.App.1997) (noting that the proper standard for division of pensions as marital property is an equitable and just award under the circumstances). See generally Uptown Food Store, Inc. v. Ginsberg, 255 Iowa 462, 469, 123 N.W.2d 59, 63 (1963) (noting fairness to the parties, without absurd results, governed an equitable action concerning a restrictive covenant). Moreover, while the focus of the declaratory judgment action was the marital portion of the Plan’s benefits, the Plan cannot be read in isolation but rather must be read in conjunction with the QDRO and the 1971 Collective Bargaining Agreement. Under the QDRO, the marital portion of the pension benefits is the amount accrued, “determined as of the participant’s Earliest Retirement Age,” which is defined in part as, “the earliest date as of which the Participant could begin receiving benefits.” Because the Agreement allowed for an early retirement, the date Daniel chose to retire became “the earliest date” under the QDRO and the date from which the marital portion should be valued and apportioned. Clearly, Daniel would not have been able to retire as of this “earliest date” but for the underlying twenty-one plus years of employment contributed during the marriage.

Not only do the Plan, the Agreement, and the QDRO dictate this result, but Iowa law requires that in dissolution of marriage proceedings, the assets of parties, including pension benefits, be divided equitably. In re Marriage of Duggan, 659 N.W.2d 556, 559 (Iowa 2003). Although valuing and dividing pension benefits can be problematic, we are aided by our case law with a method and formula helpful in resolving these issues. In re Marriage of Benson, 545 N.W.2d 252, 255-56 (Iowa 1996). For a defined benefit plan, as is the case here, the spouse is awarded through a QDRO a percentage (frequently fifty percent) of a fraction of the pensioner’s benefits based on the duration of the marriage. In re Marriage of Sullins, 715 N.W.2d 242, 250 (Iowa 2006) (citing Benson, 545 N.W.2d at 255). The fraction represents the portion of the pension attributable to the parties’ joint marital efforts. Id. However, the value of the proportionate share is not set until maturity; that is, “the amount the pensioner actually receives when he or she finally begins to draw benefits .... generally at retirement.” Benson, 545 N.W.2d at 256.

In this case, Daniel set the time to retire and hence fixed the date of maturity. That Daniel was not eligible for early retirement at the time of the decree is immaterial, as the benefits, while vested, had not yet “matured.” Id. at 255. Iowa law gauges the value of the spouse’s share in the pension plan from the time of maturity at actual retirement, rather than freezing the spousal share at the time of dissolution. Id. Calculating the shares at the time of maturity effects equity between the parties, as follows:

[Ajfter divorce the value of the non-employee spouse’s separate property interest in the pension benefits is “frozen” until the employee spouse retires, at which time that “frozen” value is returned to the non-employee spouse. During the time from divorce to retirement, however, the entire fund — comprised of the employee spouse’s separate property interests and the non-employee spouse’s separate property interests— continues to establish its earnings profile over time. Since these separate property interests are combined until retirement, the plan administrator can invest the employee spouse’s separate property interest in the fund. This “added” investment value increases the fund’s earning power, which in turn is used (and may be necessary) to create the employee’s future “defined” benefit. [T]he employee spouse receives at retirement the entire value of the “defined” benefit. From that amount, the non-employee spouse is entitled to one-half of the value of the [marital] interest in the benefit on the date of divorce. The “defined” benefit received by the employee spouse is made possible, however, in part by the use of the non-employee spouse’s separate property interest in the fund. The entire amount of earnings attributable to the non-employee spouse’s separate property interest remains within the fund, committed to create the “defined” benefit. The non-employee spouse receives only his value as calculated and “frozen” on the date of divorce .... such a rule allows the employee spouse to reap the benefits of the earnings attributable to the non-employee spouse’s separate property interest in the fund. The actual earnings attributable to the non-employee spouse’s separate property interest cannot be awarded to the non-employee spouse, as a separate value, because they are needed to generate the value of the ultimate “defined” benefit. Yet, it seems inequitable for a divorce court to “freeze” the value of the non-employee’s interests in the pension benefits at divorce and prohibit that spouse from realizing any investment income generated by his separate property interest.

Steven R. Brown, An Interdisciplinary Analysis of the Division of Pension Bene fits in Divorce and Post-Judgment Partition Actions: Cures for the Inequities in Berry v. Berry, 39 Baylor L.Rev. 1131, 1188-89 (1987).

At the time of the declaratory judgment, Daniel had elected to participate in the “30 and out” option, thereby fixing his pension benefits as matured, and presently available. This maturity marks the date for valuing the benefits, from which Maytag would set the amount of the benefits in conjunction with the Agreement. Cassandra, as alternate payee under the QDRO, should have been paid her proportionate share based on Maytag’s $2600 per month valuation. Any other resolution would be inequitable to Cassandra and such manipulation of the value as Daniel proposed is not anticipated under the Plan, the decree, or the QDRO. See In re Marriage of Lehman, 18 Cal.4th 169, 74 Cal.Rptr.2d 825, 955 P.2d 451, 456 (1998) (holding that a non-employee spouse holds a community [marital] property interest in pension plan early retirement enhancements because, practically by definition, the right to retirement benefits that accrues, at least in part, during marriage before separation underlies any right to an enhancement); Halbert v. Halbert, 220 Ga.App. 615, 469 S.E.2d 534, 535 (1996) (noting that QDRO unambiguously gave the non-employee wife a right to receive her portion of the marital share of any early retirement subsidy available to the husband when the husband actually retires); Layne v. Layne, 83 Ohio App.3d 559, 615 N.E.2d 332, 336 (1992) (stating that a non-employed former spouse is entitled to the benefit of any increase in the value of his or her unma-tured proportionate share after divorce attributable to the continued participation of the other spouse in the retirement plan, including early retirement enhancements, because such increase was expected at the time of investment).

Other jurisdictions have chosen to freeze the non-employee spouse’s share at the time of dissolution, or otherwise determined that early retirements are not subject to marital property division. Cf In re Marriage of Oddino, 16 Cal.4th 67, 65 Cal.Rptr.2d 566, 939 P.2d 1266, 1279 (1997) (stating that when the participant has not yet retired, the former spouse’s benefit under a QDRO is limited to the actuarial value of normal retirement benefits and any unreduced early retirement benefits are an employer subsidy that, under federal ERISA law, may not be ordered paid under a QDRO while the participant continues to work for the plan sponsor); Blaine v. Blaine, 872 So.2d 383, 384-85 (Fla.Dist.Ct.App.2004) (holding that QDRO’s providing the former wife with future enhancements that were not part of the marital portion of husband’s pension plan, including future improvements, cost of living adjustments, and early retirement subsidies, conflicted with the final judgment that valued the pension at the time of dissolution); Hodowal v. Hodowal, 627 N.E.2d 869, 873 (Ind.Ct.App.1994) (holding husband’s early retirement subsidy was not marital property as a vested right but an option contingent upon his continued employment and eventual qualification for the subsidy in nine years, based upon value of the pension frozen at the time of dissolution); Greenwood v. Greenwood, 746 A.2d 358, 361-62 (Me.2000) (holding that non-employee spouse waived distribution of her husband’s early retirement benefits because, although both parties were aware of the enhancements, the additional benefits were not included in calculation of the pension funds at the time of dissolution); Page v. Page, 31 A.D.3d 1172, 817 N.Y.S.2d 551, 552 (N.Y.App.Div.2006) (reversing the provisions of the QDRO that deviated from the judgment of divorce and the parties’ stipulation with respect to death and survivor benefits, early retirement subsidy benefits and restraints on plaintiffs conduct as a participant in the pension plan).

The better view, which is in accord with our Iowa case law contemplating economic protection of both parties in retirement, is to value the pension upon maturity. See In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App.1994) (awarding proportionate shares of a pension if and when payable, while striving to assure similar retirement security for both spouses.) See also Duggan, 659 N.W.2d at 561 (holding that post dissolution cost-of-living increases are marital property as they stemmed from employment during the marriage). Moreover, to exclude Cassandra from benefiting from Maytag’s “30 and out” plan after a twenty-two year marriage would eviscerate the equity the district court clearly envisioned in the 1996 dissolution decree. See In re Marriage of Fall, 593 N.W.2d 164, 167 (Iowa Ct.App. 1999) (considering the pension distribution in overall scheme of equitable division).

We therefore conclude that Cassandra is entitled to her marital portion, as determined under the QDRO, of Daniel’s entire monthly benefits payment that includes the early retirement subsidy and supplement. We reverse the declaratory judgment of the district court that Daniel’s early retirement benefits are not subject to division under the QDRO and remand for entry of an order consistent with this opinion.

IV. Attorney’s Fees on Appeal.

Daniel requests an award of attorney fees on appeal. The general rule, subject to an exception for circumstances in which a losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, is that a party has no claim for attorney fees in the absence of a statute or contract allowing such an award. D.M.H. by Hefel v. Thompson, 577 N.W.2d 643, 648 (Iowa 1998). Daniel has made no claim or showing that either the exception to the general rule applies or that a contractual provision allows an award of attorney fees. Iowa Code chapter 598 (2005) does allow attorney fee awards (1) for prosecuting or defending an action for dissolution of marriage, including temporary support matters (see Iowa Code § 598.11), (2) for bringing an action that results in a determination a party is in default or contempt of a decree (see id. § 598.24), and (3) to the prevailing party in a proceeding for modification of an order or decree (see id. § 598.36). It contains no provision, however, allowing such an award in a post-decree action seeking a declaratory judgment concerning the parties’ rights and responsibilities under the decree. We therefore deny Daniel’s request for an award of appellate attorney fees, finding it to be without basis in law or fact. Costs on appeal are assessed to Daniel.

REVERSED AND REMANDED.

      . The numerator is the number of years during the marriage the pensioner accrued benefits; the denominator is the total number of years benefits accrued prior to maturity. The fraction is multiplied by fifty percent and then multiplied by the value of the monthly pension benefit. This represents the percentage of the pension attributable to the parties’ joint marital efforts.


source: Caselaw Access Project

author: /&/ Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Mark Edward ROBINSON, a Minnesota Attorney, Registration No. 298359.
    No. A06-2029.
    Supreme Court of Minnesota.
    Dec. 4, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Mark Edward Robinson has been publicly disciplined by the Wisconsin Supreme Court for multiple acts of misconduct in the handling of various real estate transactions, and the Director requests that this court impose identical discipline under Rule 12(d), Rules on Lawyers Professional Responsibility (RLPR).

The parties have entered into a stipulation in which respondent admits the misconduct found by the Wisconsin Supreme Court, which conduct also violated Rules 1.7(a), 1.7(b), 4.2, 5.3(c)(1), 8.4(a), and 8.4(c), Minnesota Rules of Professional Conduct. In addition, respondent admits that he failed to inform the Director of the Wisconsin disciplinary proceeding or the suspension of his Wisconsin license, as required by Rule 12(d), RLPR. The parties jointly recommend that the appropriate discipline is a six-month suspension. The parties further recommend that the reinstatement hearing provided for in Rule 18, RLPR, not be waived, and that reinstatement be further conditioned on successful completion of the professional responsibility examination under Rule 18(e), RLPR, and satisfaction of the continuing legal education requirements of Rule 18(e), RLPR.

The court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Mark Edward Robinson is suspended from the practice of law for a period of not less than six months, effective as of the date of filing of this order, subject to the conditions set forth above. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs and disbursements under Rule 24, RLPR.

BY THE COURT:

/&/ Helen M. Meyer Associate Justice


author: ANDERSON, RUSSELL A., Chief Justice.

text:
    COMMANDEUR LLC, et al., Appellants, v. HOWARD HARTRY, INC., Respondent.
    No. A05-2014.
    Supreme Court of Minnesota.
    Dec. 7, 2006.

      David F. Herr, Michael C. McCarthy, Matthew P. Lewis, Maslon Edelman Bor-man & Brand, LLP, Minneapolis, MN, Appellants Commandeur LLC’s and ACRO Business Finance Corp.’s Attorneys.
    William G. Cottrell, Cottrell Law Firm, P. A., Eagan, MN, Respondent Howard Hartry, Inc.’s Attorney.
   OPINION

ANDERSON, RUSSELL A., Chief Justice.

In this case, we consider whether the court of appeals properly dismissed an appeal as untimely under the Rules of Civil Appellate Procedure, which extend an appeal period when the last day of the period falls on a legal holiday. The narrow issue before us is whether Columbus Day is a legal holiday for purposes of computing the last day of an appeal period. We conclude that it is and reverse the order of the court of appeals dismissing the appeal.

We recite only those facts necessary to decide the narrow issue before us. The district court granted summary judgment dismissing the claims of Commandeur LLC and ACRO Business Finance Corp. (appellants) against Howard Hartry, Inc. (respondent), and judgment was entered on August 10, 2005. Generally, an appeal may be taken within 60 days after entry of judgment. Minn. R. Civ.App. P. 104.01. The method for computing the 60-day period is specified in Minn. R. Civ. P. 6.01, subd. 1. See Minn. R. Civ.App. P. 126.01. Rule 6.01 provides that the last day of the period is included in the computation, unless “it is a Saturday, a Sunday, or a legal holiday, * * * in which event the period runs until the end of the next day which is not a[sic] one of the aforementioned days.” Excluding the day judgment was entered, as prescribed by Rule 6.01, the sixtieth day of the appeal period in this case fell on Sunday, October 9, 2005. The following-day, October 10, was Columbus Day. Appellants filed and served their notice of appeal on Tuesday, October 11. The court of appeals dismissed the appeal as untimely, concluding that “Columbus Day is not a holiday for the appellate courts” and therefore “the appeal period expired on October 10.”

We are called upon in this case to interpret the term “legal holiday” in Minn. R. Civ. P. 6.01. We interpret our court rules de novo. Huntsman v. Huntsman, 633 N.W.2d 852, 854 (Minn.2001). We also review jurisdictional questions de novo. Rubey v. Vannett, 714 N.W.2d 417, 421 (Minn.2006).

“In construing procedural rules, we first look to the plain language of the rule and its purpose.” Id. Under Rule 6.01, “ ‘legal holiday’ includes any holiday defined or designated by statute.” This language was intended “to defíne explicitly what constitutes a ‘legal holiday.’ ” Minn. R. Civ. P. 6.01 advisory comm. cmt. — 1996 amendments.

Minnesota Statutes § 645.44, subd. 5 (2004), defines the term “holiday.” Unlike other holidays, the treatment of Columbus Day varies under the statute. Although section 645.44, subd. 5, generally defines “holiday” to include Columbus Day, the statute also provides that Columbus Day is not a holiday for the executive branch, and that other branches of state government have the option of determining whether Columbus Day is a holiday:

“Holiday” includes * * * Christopher Columbus Day, the second Monday in October * * *. No public business shall be transacted on any holiday, except in cases of necessity and except in cases of public business transacted by the legislature, nor shall any civil process be served thereon. However, for the executive branch of the state of Minnesota, “holiday” also includes the Friday after Thanksgiving but does not include Christopher Columbus Day. Other branches of state government and political subdivisions shall have the option of determining whether Christopher Columbus Day and the Friday after Thanksgiving shall be holidays. Where it is determined that Columbus Day or the Friday after Thanksgiving is not a holiday, public business may be conducted thereon.

Minn.Stat. § 645.44, subd. 5 (emphasis added).

Respondent argues that Columbus Day is not a legal holiday under Rule 6.01 because Minn.Stat. § 654.44, subd. 5, “plainly defines Columbus Day as an optional holiday” for the judicial branch, and the judicial branch does not recognize Columbus Day as a holiday. In support, respondent cites the advisory committee comments to Rule 6.01, which suggest that whichever day the judicial branch selects as a holiday — Columbus Day or the Friday after Thanksgiving — “is defined to be a holiday under the rule.” Minn. R. Civ. P. 6.01 advisory comm. cmt. — 1996 amendments.

Appellants argue that the court of appeals’ conclusion that Columbus Day is not a legal holiday under Rule 6.01 leads to an unjust and unfair result “that is certain to cause other parties to lose their rights without notice.” According to appellants, litigants “should be able to rely on the plain language of the Rules,” and “Rule 6.01 does not define a ‘legal holiday’ as ‘any court holiday.’ ”

Procedural rules are “construed and administered to secure the just, speedy, and inexpensive determination of every action,” Minn. R. Civ. P. 1, and “should be given liberal construction so as to effectuate that purpose,” Huntsman, 633 N.W.2d at 854. “Limitations on time to appeal are designed to expedite the final resolution of litigation, with due consideration to fairness and certainty of procedure.” E.C.I. Corp. v. G.G.C. Co., 306 Minn. 433, 435, 237 N.W.2d 627, 629 (1976). For reasons of fairness and certainty, we hold that Columbus Day is a legal holiday under Minn. R. Civ. P. 6.01.

Our holding is consistent with the broad language of the rule, which defines “legal holiday” as “any holiday defined or designated by statute.” Minn. R. Civ. P. 6.01 (emphasis added). Columbus Day is included in the general definition of a holiday in Minn.Stat. § 654.44, subd. 5. It is not readily apparent from the language of the rule that legal holiday means only those holidays recognized by the judicial branch. Compare Minn. R. Civ. P. 6.01 tvith Minn. Gen. R. Prac. 503(c) (stating that “legal holiday” under the Conciliation Court Rules includes “all state level judicial branch holidays established pursuant to law”) (emphasis added). Therefore, we reject a narrow interpretation of legal holiday that may, as appellants contend, set “a trap for the unwary.”

Our holding that Columbus Day is a legal holiday also fosters certainty because the definition of legal holiday in Rule 6.01 does not depend on whether the judicial branch recognizes Columbus Day as a holiday. Our holding is at odds with the advisory committee comments to Rule 6.01; however, as we have noted, advisory “committee comments are included for convenience and are not binding on the court.” Vandenheuvel v. Wagner, 690 N.W.2d 753, 756 (Minn.2005); accord Borchert v. Maloney, 581 N.W.2d 838, 840 & n. 9 (Minn.1998). In addition, although our other court rules are not completely uniform, almost all encompass Columbus Day in their definition of legal holiday.

Our holding that Columbus Day is a legal holiday under Rule 6.01 is also consistent with the federal treatment of Columbus Day. One of the purposes of the language in Rule 6.01 defining legal holiday was to “conform[ ] the rule to its federal counterpart.” Minn. R. Civ. P. 6.01 advisory comm. cmt. — 1996 amendments. Columbus Day is a federal holiday, and the Federal Rules of Civil Procedure expressly designate Columbus Day as a “legal holiday.” Fed.R.Civ.P. 6(a). Moreover, a party appealing a judgment is permitted to file and serve a notice of appeal by mail, Minn. R. Civ.App. P. 125, but there is no mail service on Columbus Day. Litigants may be confused about the proper time for service by mail if Columbus Day is included in computing the last day of an appeal period. See Minn. R. Civ.App. P. 125.01 (stating that an appeal is timely if “the papers are deposited in the mail within the time fixed for filing”); Minn. R. Civ.App. P. 125.03 (stating that “[s]erviee by mail is complete on mailing”).

“As every practitioner is keenly aware, the importance of an accurate calculation of time allowed for appeal is critical and an error can be fatal to further review.” State v. Hugger, 640 N.W.2d 619, 625 (Minn.2002). The Rules of Civil Procedure “reflect a preference that actions be determined on the merits,” Patterson v. Wu Family Corp., 608 N.W.2d 863, 867 (Minn.2000), and “the rules are to be liberally construed so as to serve the interests of justice,” Larson v. Indep. Seh. Dist. No. 314, 305 Minn. 358, 362, 233 N.W.2d 744, 747 (1975). Accordingly, we grant appellants the benefit of the doubt in their efforts to comply with the time restrictions set forth in the rule.

Because Columbus Day is a legal holiday under Minn. R. Civ. P. 6.01 and thus is not included in computing the last day of the 60-day appeal period, we conclude that appellants’ notice of appeal was timely through Tuesday, October 11, 2005, the day on which appellants filed and served their notice of appeal. Therefore, we reverse the decision of the court of appeals dismissing the appeal and remand to the court of appeals for consideration of the appeal on the merits.

Reversed and remanded; appeal reinstated.

      . See, e.g., Minn. R. Juv. Delinq. P. 31.01 (specifically stating that "legal holiday" includes Columbus Day); Minn. R.Crim. P. 34.01 (stating that " 'legal holiday’ includes any holiday defined or designated by statute, and any other day appointed as a holiday by the President or the Congress of the United States or by the State"); Minn. Gen. R. Prac. 354.03 (stating that "legal holiday" under the Rules of Family Court Procedure means certain specified days "and any other day designated as a holiday by the President or Congress of the United States, by the State, or by a county”); Minn. R. Juv. Prot. P. 4.01 (stating that "legal holiday” means certain specified days "and any other day designated as a holiday by the President, Congress of the United States, or by the State”). Columbus Day is a “legal public holiday” under 5 U.S.C. § 6103(a) (2000).

      . If the terms "deposited in the mail” and "on mailing” require appellants to have their notice of appeal postmarked on the last day of an appeal period, that would be impossible on Columbus Day. Even if a postmark on the last day of an appeal period is not required, parties easily could be confused by the fact that the United States Postal Service does not operate on Columbus Day, potentially leading them to forfeit their rights inadvertently. Columbus Day is the only day of the year on which this conundrum occurs.
      As an additional reason to reject a narrow interpretation of legal holiday that excludes Columbus Day, we note that civil process may be prohibited on Columbus Day even if the judicial branch does not recognize Columbus Day as a holiday. See Minn.Stat. § 645.44, subd. 5 (explaining that public business and civil process are prohibited on "any holiday,” but stating that "[wjhere it is determined that Columbus Day * * * is not a holiday, public business may be conducted thereon," without mention of civil process). A notice of appeal does not constitute civil process because it continues a court proceeding, rather than initiating a new one. See Andmsick v. City of Apple Valley, 258 N.W.2d 766, 768 (Minn. 1977); In re Estate of Dahmen, 200 Minn. 55, 58, 273 N.W. 364, 365 (1937) (holding that when an appeal merely continues court jurisdiction, it is not civil process). Nonetheless, an inconsistency exists if civil process is prohibited on Columbus Day under the statute, yet the filing and service of appeals and other documents must be accomplished by Columbus Day under the court rule.


author: HANSON, Justice. GILDEA, Justice

text:
    In the Matter of the Application for PERA POLICE AND FIRE PLAN LINE OF DUTY DISABILITY BENEFITS OF Stephen BRITTAIN.
    No. A04-2407.
    Supreme Court of Minnesota.
    Dec. 7, 2006.

      Mike Hatch, Attorney General, Rory H. Foley, Assistant Attorney General, Jon K. Murphy, Assistant Attorney General, Saint Paul, MN, for Petitioner.
    Denise Yegge Tataryn, Charles A. Horowitz, Jean B. Roth, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for Respondent.
    Susan L. Naughton, League of MN Cities, Saint Paul, MN, Cort C. Holten, Jeffrey D. Bores, Chestnut & Cambronne, P.A., Minneapolis, MN, for Amicus Curiae.
   OPINION

HANSON, Justice.

Respondent Stephen Brittain, a former Ramsey County Deputy Sheriff, filed for disability benefits under the statutory Public Employees Police and Fire Fund (Police and Fire Fund). Brittain alleged that he was disabled as a result of anxiety and depression caused by a hostile work environment created by his supervisor. Appellant Public Employees Retirement Association Board of Trustees (PERA Board), which manages the Police and Fire Fund, approved Brittain for occupational disability benefits that are available for a disability occurring while “not on duty,” but denied Brittain’s claim for the enhanced benefits that are available for a disability arising out of “any act of duty.” The PERA Board interpreted “any act of duty” as being limited to acts involving hazardous duty. A divided court of appeals reversed, holding that “any act of duty” included all acts while on duty and that enhanced benefits were payable for “a disability incurred as the result of a hostile work environment.” In re PERA Police & Fire Plan Line of Duty Disability Benefits of Stephen Brittain, 705 N.W.2d 576, 581 (Minn.App.2005). We affirm.

The PERA Board is a membership board that manages several public employee pension plans that are created by statute, including the Police and Fire Fund. The Police and Fire Fund provides two types of disability benefits for police officers who are no longer able to perform their duties. See Minn.Stat. § 353.656 (2004). Basic benefits are provided in subdivision 3 for an officer who has become disabled “because of sickness or injury occurring while not on duty.” Id., subd. 3 (emphasis added). Enhanced benefits are provided in subdivision 1 for an officer who has become disabled “as a direct result of an injury, sickness, or other disability incurred in or arising out of any act of duty.” Id., subd. 1 (emphasis added).

Brittain served as a deputy sheriff for the Ramsey County Sheriffs Department from 1986 to 2003 and was a member of the Police and Fire Fund. Brittain suffered two injuries during his employment. First, Brittain had permanent hearing loss in his left ear as a result of working as a firearms instructor. Brittain received workers’ compensation benefits for his hearing loss. He does not claim that this hearing loss was the primary cause of his disability, but does suggest that the stress caused by his hearing loss was a contributing factor to his depression. Second, Brit-tain suffered from depression. He claims that his depression was caused primarily by a hostile work environment, alleging that his supervisor harassed him and made working conditions intolerable.

The PERA Board referred Brittain’s application for disability benefits to the Minnesota Department of Health, whose medical consultant reviewed Brittain’s medical records and the medical report of Brittain’s family physician. The medical consultant opined that Brittain was “occupationally disabled.” Based on that opinion, the PERA staff approved Brittain’s application for basic disability benefits, but concluded that Brittain had failed to provide enough evidence to substantiate an enhanced award of “act of duty” benefits. In a notice to Brittain of the opportunity to attend a fact-finding conference, the PERA staff elaborated on its reasoning, stating that the Police and Fire Fund were “created by the legislature with the intent to provide enhanced disability and retirement benefits for police officers and firefighters because of the hazardous nature of those professions.” The PERA staff determined that hazardous duties do not include conflicts between coworkers. Brit-tain appealed the PERA staff decision and requested a fact-finding conference.

At the fact-finding conference before an administrative law judge, Brittain provided a fact statement describing some incidents of harassment by his supervisor. He also provided supporting exhibits consisting of reports from his otolaryngologist and statements by former coworkers in the Ramsey County Sheriffs Department. Brittain’s statement and supporting exhibits are contained in the record of the PERA Board. The record does not reflect any objection by the PERA staff to Brit-tain’s statement or supporting exhibits, any cross-examination of Brittain or any evidence offered by the PERA staff to rebut or contradict Brittain’s description of the conduct of his supervisor. The reports of Brittain’s family physician and his treating psychologist were also included in the exhibits provided by the PERA staff to the administrative law judge.

The administrative law judge concluded that Brittain had met his burden of proving that “his inability to perform the duties of a Deputy Sheriff is the direct result of an injury or sickness that was incurred in or arose out of any act of duty,” and recommended that the PERA Board grant the enhanced act of duty disability benefits to Brittain. The PERA Board rejected the judge’s recommendation and concluded that Brittan’s inability to continue his position did not result from an act of duty. It construed “any act of duty” as including only those acts that involved “hazardous situations.”

The court of appeals reversed the PERA Board’s ruling, holding that the words “any act of duty” were not ambiguous and that act of duty benefits “are payable for injuries incurred in or arising out of any act of duty, including a disability incurred as the result of a hostile work environment.” Brittain, 705 N.W.2d at 581. The dissent argued that an “act of duty” must be read “as a limitation on the ability to recover [act of duty] benefits to only those claims where the appellant was performing a task or deed that the applicant had some duty to perform,” and that Brittain’s depression did not result from him doing anything, but only from being exposed to something. Id. at 582-83 (Dietzen, J., dissenting). The dissent also concluded that deference should be given to the PERA Board’s interpretation of the statute. Id. at 581.

We granted the PERA Board’s petition for further review, which framed the issue as follows:

Is depression resulting from the perceived acts of a hostile supervisor a disability incurred in, or arising out of, “any act of duty” within the meaning of Minn.Stat. § 353.656, subd. 1 (2004)?

In the process of briefing the issue, the PERA Board refined that issue to have two separate but related parts:

1. Whether Brittain provided sufficient evidence that his disability was caused by an act of duty; and
2. Whether working under a hostile supervisor constituted an “act of duty.”

(Emphasis and citations omitted.)

We agree that this refinement aids the analysis, but we will address these issues in reverse order because determining the meaning of the words “any act of duty” is the necessary predicate to any application of those words to the facts in this record. And we reformulate the issues as follows:

1. What is the meaning of the words “any act of duty” and, more specifically, is that meaning limited to the tasks and functions of a police officer that involve hazardous situations or heightened risks, or are unique to law enforcement?
2. Was Brittain’s psychological disability a “disability incurred in or arising out of’ the performance of a task or function that qualifies as an “act of duty,” as earlier defined?

I.

The standard of review for construction of a statute is de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). The analytical framework to follow is to first determine whether the statute is ambiguous:

When interpreting a statute, a court must ascertain and effectuate the intention of the legislature. When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit of a law. To ascertain and effectuate the legislature’s intent, courts must first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when it is subject to more than one reasonable interpretation. A court must give a plain reading to any statute it construes, and when the language of the statute is clear, the court must not engage in any further construction.

State v. McCoy, 682 N.W.2d 153, 158-59 (Minn.2004) (quotation marks and citations omitted).

If the statute is not ambiguous, the inquiry ends there. Hyatt v. Anoka Police Dep’t, 691 N.W.2d 824, 827 (Minn.2005). But, if the statute is ambiguous, the intention of the legislature may be ascertained by considering, among other matters:

(1) the occasion and necessity for the law;
(2) the circumstances under which it was enacted;
(3) the mischief to be remedied;
(4) the object to be attained;
(5) the former law, if any, including other laws upon the same or similar subjects;
(6) the consequences of a particular interpretation;
(7) the contemporaneous legislative history; and
(8) legislative and administrative interpretation of the statute.

Minn.Stat. § 645.16 (2004). The question of deference to the PERA Board’s interpretation of the statute, similar to the extrinsic matters listed above, arises only if the statute is ambiguous. Hy-Vee Food Stores, Inc. v. Minn. Dep’t of Health, 705 N.W.2d 181, 185 n. 5 (Minn.2005).

The court of appeals majority determined that the words “any act of duty” in section 353.656, subd. 1, were not ambiguous and meant “ ‘all tasks or functions required of that employee, without limitation.’ ” 705 N.W.2d at 581 (quoting In re Hildebrandt, 701 N.W.2d 293, 299-300 (Minn.App.2005)). The majority emphasized the expansive nature of the word “any” and the failure of the legislature to include any limiting language. Id. The majority held:

The language of the statute is unambiguous on its face: [act of duty] benefits are payable for injuries incurred in or arising out of any act of duty, including a disability incurred as the result of a hostile work environment.

Id.

The PERA Board does not argue that the words “any act of duty” are ambiguous, but it urges that the plain meaning of those words must be determined from placing them in the context of the entire statute. And the PERA Board’s contextual reading of those words has evolved from the time of its ruling on Brittain’s application.

The PERA Board’s order denying enhanced benefits to Brittain determined that [the] act of duty disability benefits are only available for disabilities that result from “hazardous situations” or acts that expose a member to “heightened risks.” The difficulty with this interpretation is that the words “any act of duty” are not defined by the statute and the words “hazardous situations” or acts with “heightened risks” do not appear in the subdivision that provides for act of duty benefits. See Minn.Stat. § 353.656, subd. 1. In its briefs before us, the PERA Board deemphasized the words “hazardous” or “heightened risks,” suggesting that it did not intend to argue that “act of duty disability benefits should be limited to those activities that can be considered hazardous per se.” Perhaps taking a cue from the court of appeals dissent, the PERA Board suggests that “any act of duty” should be construed to mean “those duties or activities inherently unique to public safety duties.” But, again, the words “inherently unique to public safety duties” do not appear in the subdivision that provides act of duty benefits.

The PERA Board suggests that these additional words are incorporated into the subdivision that provides act of duty benefits by the statement of legislative policy contained in Minn.Stat. § 353.63 (2004), which provides in part:

It is the recognized policy of the state that special consideration should be given to employees of governmental subdivisions who devote their time and skills to protecting the property and personal safety of others. Since this work is hazardous, special provisions are hereby made for retirement pensions, disability benefits and survivors benefits based on the particular dangers inherent in these occupations.

We agree that the words “any act of duty” should be read in the context of other parts of chapter 353. See Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (noting that this court should “read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations”). But we have difficulty concluding that the legislative policy statement in section 353.63 modifies the words “any act of duty” in section 353.656, subd. 1.

Section 353.63 is a general policy statement that explains the dangers of police work and why police officers should be entitled to greater benefits than are provided to other public employees. But the policy statement does not focus on and is not limited to act of duty benefits. Instead, it is applicable to all of the “benefits provided in sections 353.63 to 353.68,” which include pension benefits (section 353.64), retirement annuities (section 353.651), disability benefits (section 353.656), and survivor benefits (section 353.657).

As to disability benefits, the policy statement applies as much to “not on duty” benefits as to “act of duty” benefits. It explains why police officers are given “occupational” disability benefits when they are “physically unfit” or they are “unable to perform,” regardless of whether the disability was incurred in any act of duty or while not on duty. Occupational disability benefits are not available to other pub-lie employees, for whom a disability is only recognized if one is “totally and permanently disabled,” which is defined as “the inability to engage in any substantial gainful activity.” Minn.Stat. §§ 353.33, 353.01, subd. 19 (2004). Because police occupational disability benefits are provided for both act of duty and not on duty disabilities, the policy statement cannot be read to provide specific guidance for interpreting the words “any act of duty.”

Further, the policy statement is inclusive, not restrictive. A broad interpretation of act of duty benefits would not conflict with or undermine the policy goals of section 353.63. Those policy goals would only be undermined if benefits were not provided for a disability that was incurred in the course of hazardous duty. The policy goals are not stated in the negative; they do not express an intent to limit or exclude benefits for disabilities that are not incurred in the course of hazardous duties.

Although we agree with the PERA Board that the court should look to other parts of chapter 353 in determining whether the words “any act of duty” are ambiguous, we conclude that the more relevant comparison is to consider the connection between subdivision 1 and subdivision 3 of section 353.656. These two subdivisions comprise the entire universe of disability benefits under the Police and Fire Fund. As such, the outer boundary of “act of duty” benefits under subdivision 1 is determined by its intersection with the boundary of “not on duty” benefits under subdivision 3. Stated another way, unless the legislature intended not to provide benefits for some category of “on duty” disabilities, act of duty disabilities must necessarily include all disabilities except those occurring while not on duty. This juxtaposition makes it clear that act of duty is a broad concept that is not reasonably limited to disabilities arising out of “hazardous situations,” situations involving “heightened risks,” or “activities inherently unique to public safety duties.”

The PERA Board argues that the court of appeals failed to give due consideration to the decisions of other state courts that have construed similar police disability statutes. We have considered those decisions and found that they do not inform us on the meaning of the words “any act of duty” in the Minnesota statute. It is true that decisions from Illinois interpret “act of duty” similarly to the interpretation that the PERA Board urges here. Thus, in Robbins v. Board of Trustees of Carbon-dale Police Pension Fund, 177 Ill.2d 533, 227 Ill.Dec. 116, 687 N.E.2d 39, 44 (1997), the Illinois Supreme Court denied act of duty benefits for a police officer’s psychological disability, caused by stressful relations with coworkers, because it concluded that an act of duty refers to a specific act that is unique to police service. But, that conclusion was dictated by the Illinois statute that defined “act of duty” as “any act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman by the statutes of this State or by the ordinance or police regulations of the city.” See 40 Ill. Comp. Stat. 5/5-113 (1993).

The PERA Board also relies on Allen v. D.C. Police and Firefighters’ Retirement & Relief Board, 528 A.2d 1225 (D.C.1987), and Woldrich v. Vancouver Police Pension Board, 84 Wash.App. 387, 928 P.2d 423 (1996). Although these cases bear some factual similarity to Brittain’s, they are not helpful in construing “any act of duty” because their respective statutes used the words “performance of duty” or “in the line of duty.” See D.C.Code § 4-616 (1981); Wash. Rev.Code Ann. § 41.26.120 (West 1994).

When we read the words “any act of duty” in conterf, and also consider the intersection of those words with the “not on duty” disability provided under subdivision 3 of section 353.656, we conclude that the words “any act of duty” are not ambiguous and their meaning cannot be restricted to hazardous situations, situations of heightened risk, or activities unique to public safety duties. By inserting the modifier “any” before “act of duty,” the legislature demonstrated the intent to be inclusive, not restrictive. See Hyatt, 691 N.W.2d at 826 (“the word ‘any’ is given broad application in statutes, regardless of whether we consider the result reasonable”); see also In re Hildebrandt, 701 N.W.2d 293, 299-300 (Minn.App.2005) (when used in the affirmative, the word “any” means “every” or “all”).

Because we conclude that the statute is not ambiguous, we need not consider the PERA Board’s arguments concerning legislative history, public policy, or deference to the PERA Board’s interpretation of “any act of duty.”

II.

We turn now to the application of the plain meaning of “any act of duty” to the facts in the record before us. As noted, the PERA Board suggests that there is a causation issue that still needs to be addressed. It criticizes the court of appeals for failing “to tie [Brittain’s] injury to a task or function required by a deputy sheriff,” suggesting that Brittain did not provide sufficient evidence “that his disability was caused by an act of duty.” The court of appeals majority rejected this argument on procedural grounds, concluding that there was no issue of causation before the court because the PERA Board had agreed that Brittain was disabled and that his disability occurred as a result of a hostile work environment. 705 N.W.2d at 579.

We agree with the court of appeals majority that the PERA Board did not preserve for appeal certain causation issues. But we also agree with the PERA Board that our interpretation of the words “any act of duty” does not relieve a police officer from the obligation to tie that disability to a task or function that was performed by the officer. We analyze the causation issues in this way: because the PERA staff did not challenge Brittain’s evidence that he was subject to a hostile work environment, that the hostile work environment caused severe depression, or that depression resulted in Brittain’s psychological disability, those causation issues were not before the court of appeals and are not before us. The only evidence in the record on those issues was that provided by Brittain. But this leaves a final causation issue, which is whether Brittain’s evidence showed that the disability was one “incurred in or arising out of any act of duty.”

This issue is a subpart of the larger question of whether a disability arising from a hostile work environment can qualify as an act of duty disability. We interpret the court of appeals dissent to be focusing on this subpart when it argues that Brittain must demonstrate that he performed an act of duty that gave rise to his depression. 705 N.W.2d at 583. In the dissent’s view, Brittain’s depression did not result from him doing any act but only from him being exposed to the acts of someone else.

The court of appeals majority resolved this “causation” issue by concluding that the act of duty that exposed Brittain to a hostile work environment was “appearing for work and performing [his] job.” 705 N.W.2d at 581. This represents the broadest possible reading of “any act of duty” because it means that all disabilities that are incurred while on the job are tied to the duty to appear for work and thus qualify for act of duty benefits. We do not find it necessary to reach that reading in this case, and will defer that issue to another day. We conclude, instead, that the unrebutted evidence presented by Brittain sufficiently demonstrated that the hostility he complained of occurred in response to and interfered with Brittain’s performance of specific duties.

The best example concerns the confrontations between Brittain and his supervisor regarding the transportation of prisoners, which was one of Brittain’s specific duties. Brittain’s evidence demonstrated that he had two concerns for officer safety related to transportation of prisoners. First, he was concerned because his hearing loss made it difficult for him to communicate in crowded situations. Second, he was concerned about the number of prisoners that a deputy could safely transport at one time. These two concerns led him to follow the practice of limiting the number of persons taken in the van at one time. He preferred to make two runs with fewer prisoners instead of filling the van to accomplish the transportation in a single run. According to Brittain’s evidence, these concerns and Brittain’s practice became the focus of harassment by his supervisor, who rejected his safety concerns, threatened to have him transferred out of the unit if he continued to raise those safety concerns, refused to answer his questions about safety, and responded to his concerns by giving him fewer and less favorable work assignments. In this example, it is impossible to separate the hostile work environment from Brittain’s performance of his duties because the hostility interrupted, impeded, or even prevented that performance.

This analysis of the record evidence resolves the concerns of the court of appeals dissent that, “[ujnder the majority’s interpretation, the statute would extend [act of duty] disability benefits to everything that occurred at the workplace. * * * Such an interpretation would provide broader coverage than the Worker’s Compensation Act, and without any requirement of causation.” Brittain, 705 N.W.2d at 582. We do not reach a similarly broad interpretation because the facts do not require us to do so to resolve this appeal.

This analysis also provides the basis to distinguish the cases from other jurisdictions, particularly Allen and Woldrich, that are relied on by the PERA Board to argue that disabilities resulting from relationships with a supervisor do not constitute an act of duty disability. In Allen, the officer’s psychological disability was caused by depression resulting from a combination of off duty and on duty automobile accidents. 528 A.2d at 1226-29. The court affirmed the District of Columbia board’s factual determination that the disability was not predominantly caused by his on duty injuries. Id. at 1231. The applicable statute denied on duty disabilities for “service-connected aggravation of an off-duty injury.” See id. The PERA Board does not claim that Brittain’s disability was caused by any off duty incidents or injuries.

In Woldrich, the police officer became disabled as a result of depression caused by his reaction to a disciplinary demotion and his supervisor’s dissatisfaction with his job performance. 928 P.2d at 424. But the police officer in Woldrich did not allege that the demotion or dissatisfaction was unjustified or constituted harassment. His depression, thus, was more easily characterized as resulting from his reaction to something, not from his doing something. And the Washington Court of Appeals distinguished Woldrich’s situation from that in an earlier case that may be more relevant here. 928 P.2d at 426. In Dillon v. Seattle Police Pension Board, 82 Wash. App. 168, 916 P.2d 956, 960 (1996), the court reversed the denial of line of duty disability benefits where the officer became depressed because he feared that he was not physically able to perform his duties due to a duty-related hand injury. The court held that the officer had presented uncontradicted evidence that his psychological disability was caused by the stress of being required to perform police duties that he perceived himself to be physically unfit to perform. Id. at 960.

We conclude that Brittain demonstrated that he had a psychological disability that qualified as a “disability incurred in or arising out of any act of duty.”

Affirmed.

ANDERSON, RUSSELL A, C.J., took no part in the consideration or decision of this case.

GILDEA, Justice

(dissenting).

I respectfully dissent. I agree with the majority that Minn.Stat. § 353.656, subd. 1 (2004) is unambiguous and that the meaning of the words “any act of duty” in subdivision 1 is not “restricted to hazardous situations.” I also agree with the majority’s conclusion that the issue in this case is whether Brittain’s injury was “incurred in or [arose] out of any act of duty” (in accordance with subdivision 1) or whether the injury occurred “while not on duty as a police officer” (in accordance with subdivision 3). I part company with the majority on the resolution of this fact question, which the majority describes as the “causation issue.” Given our standard of review, I would reverse the court of appeals, and remand this matter to the PERA Board for further proceedings.

The parties framed this case to us as one presenting a question of law. The court of appeals resolved the case in that manner, holding that the phrase “incurred in or arising out of any act of duty” meant any injury that happened to an employee while he was at work. In re PERA Police & Fire Plan Line of Duty Disability Benefits of Stephen Brittain, 705 N.W.2d 576, 580-81 (Minn.App.2005). The plain meaning of the statute does not leave room for the court of appeals’ construction. In my view, it is not enough for Brittain to have been harassed while he was at work to conclude, as the court of appeals did, that he is entitled to the enhanced benefits under subdivision 1. The statute instead requires that the harassment that caused the disability occurred while Brittain was performing “any act of duty,” or arose from his performance of “any act of duty.” Minn.Stat. § 353.656, subd. 1. I agree with the majority that this is a “causation issue.” In my view, the issue presents a question of fact, and our standard of review dictates that this factual issue be resolved by the agency.

This case was initiated with a petition for writ of certiorari. See Minn.Stat. §§ 606.01-.06 (2004). We review questions of law de novo, and I agree with the majority that to the extent that the Board based its decision on an incorrect legal interpretation of the statute, the decision must be reversed. But that does not, end our analysis. We have said that we will not substitute our judgment on fact questions for that of the agency unless “the evidence was all one way and the administrative agency found to the contrary.” State ex rel. Spurck v. Civil Serv. Bd,., 226 Minn. 240, 248-49, 32 N.W.2d 574, 580 (1948). As we recognized in Spunk, “[t]he function of the court on certiorari in reviewing the determination of an administrative agency is to decide questions of law raised by the record, but not disputed questions of fact on conflicting evidence.” Id. If the agency made an incorrect legal determination, the proper remedy on cer-tiorari review is a remand to the agency for further proceedings consistent with our opinion. Id. at 581; see also Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 675 (Minn.1990) (discussing use of remand “ ‘to permit further evidence to be taken or additional findings to be made in accordance with the applicable law’ ” (citation omitted)). My review of the record leads me to conclude that this is the remedy we should invoke:

The ALJ concluded, and the parties do not dispute, that Brittain has the burden of proof to show that he is eligible for the enhanced disability benefits that he claims. The majority apparently views the evidence in the record on this question as pointing to only one conclusion. The majority states that “[t]he record does not reflect any objection by the PERA staff to Brittain’s statement or supporting exhibits, any cross-examination of Brittain or any evidence offered by the PERA staff to rebut or contradict Brittain’s description of the conduct of his supervisor.” The only specific statement from Brittain that I find in the record, however, came when he appeared before the Board on October 14, 2004. One of the Board members asked Brittain what specific duty he was performing when he sustained his injury. Brittain stated: “the fact that I had to go to work, be supervised by this supervisor, is my act of duty.” The record contains no other testimony from Brittain, and the record does not reflect that the PERA staff had an opportunity to conduct cross-examination during proceedings before the ALJ.

In contrast to the majority’s view, my review of the limited information in the record shows that the PERA staff did contest Brittain’s claim for enhanced benefits under subdivision 1 and staff contended that Brittain had not met his burden of proof. The majority characterizes the documents from the PERA staff as containing “argument, not evidence.” The point, however, is that Brittain, not the PERA staff, had the burden of proof, and the PERA staff did not concede that Brit-tain had carried that burden. The PERA staff instead appears to have argued both that Brittain had not carried his burden, and that Brittain was not entitled to enhanced benefits because his injury did not arise from his performance of hazardous duties. The PERA Board decided this case based on the second argument, using what we have now found to be an erroneous construction of the statute. In my view, our decision on the legal question of the proper interpretation of the statute does not, on this record, vest this Court with the responsibility to resolve the first argument regarding whether Brittain sustained his burden of proof. Rather, our standard of review dictates that this question should be resolved by the PERA Board on remand unless the evidence on the issue points all one way. My review of the record leads me to conclude that it does not.

In his brief, Brittain argues that his “disability arose directly from the performance of his job duties, such as following the orders of his sergeant, instructing fellow officers in the use of firearms, accepting and carrying out job assignments within the prisoner transportation unit, and difficult interaction with inmates.” Brittain’s brief contains no citation to record evidence to support these assertions. When asked at oral argument for the evidence to support these assertions, Brit-tain’s counsel identified Exhibits 10 and 35. Exhibit 10 is not helpful to the issue of when Brittain’s supervisor supposedly harassed him as it is simply a job description.

Exhibit 35 comes a bit closer. This document, which is not signed, states that Brittain “asked questions about work safety issues, such as the safe number of inmates to transport,” and that his supervisor interpreted his “questions as complaints,” called him a “male slug” when he “didn’t fill the transport van with prisoners,” and “threatened [him] with job transfers if [he] complained about officer safety.” Exhibit 35 appears to be what the majority refers to as the “best example” of evidence supporting a conclusion that the harassment Brittain perceived was incurred in or arose out of his performance of specific job duties. It is the only example I find in the record of any evidence that could be construed as supporting such a finding.

In contrast to Exhibit 35, when a Board member asked Brittain to describe “in [his] own words * * * what particular act of duty your disability arose out of,” Brit-tain did not speak about officer safety, transporting prisoners or any other specific duty. Rather, he said: “I was required to be at work. I had a supervisor that told other deputies she was out to get me. So the fact that I had to go to work, be supervised by this supervisor, is my act of duty.” Brittain’s own words to the PERA Board contradict the majority’s construction of the information contained in Exhibit 35. Accordingly, I cannot conclude that “the evidence was all one way” on the critical causation issue presented here. Spurck, 226 Minn, at 249, 32 N.W.2d at 580.

My review of the record leads me to conclude that while it may be undisputed that Brittain was harassed while he was at work, it is not undisputed that Brittain was harassed while he was performing specific acts of duty. The majority glosses over this distinction by contending that because the hostile work environment Brittain perceived “interrupted, impeded, or even prevented” performance of his duties, he was therefore entitled to enhanced benefits. This construction would entitle Brittain to enhanced benefits under the court of appeals’ broad reading of the statute, but it is inconsistent, in my view, with the plain meaning of subdivision 1. Just because the hostility that Brittain experienced happened while he was at work does not mean that his injury was incurred in or arose out of an act of duty. If, for instance, Brittain was injured while wrestling with one of his coworkers during work hours, this injury would have “interrupted, impeded, or even prevented” Brittain from performing his duties. But the injury was not incurred in or arising out of an act of duty, and it would not entitle him to enhanced benefits.

In my view, there is a factual question about whether Brittain’s injury was incurred in or arose out of an act of duty under MinmStat. § 353.656, subd. 1. Brit-tain’s evidence in the record is not conclusive on this fact question. I would therefore reverse the decision of the court of appeals and remand this matter back to the Board for further proceedings consistent with an opinion that clarifies that enhanced benefits under subdivision 1 are not limited to injuries that arise from the performance of hazardous duties. Rather, enhanced benefits are available to the employee who shows that his injury happened while he was performing, or as a result of his performance of, specific job duties.

      . The PERA Board was established in 1931 and is given fiduciary responsibilities by Minn.Stat. ch. 356A (2004). See Act of Apr. 24, 1931, ch. 307, § 3, 1931 Minn. Laws 389, 391 (codified at Minn.Stat. § 353.03 (2004)).

      . The parties and the PERA Board frequently refer to these two types of disability benefits as “line of duty” and "nonduty” benefits, using the headnotes for subdivisions 1 and 3, respectively, of section 353.656. But we will avoid these references because the headnotes are not a part of the statute and do not determine its meaning. Minn.Stat. § 645.49 (2004); Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 303 n. 23 (Minn. 2000).

      . The Department of Health serves as the PERA Board's medical advisor pursuant to Minn.Stat. § 353.33, subds. 6a and 6b (2004).

      . The PERA staff estimated that Brittain would receive $2,610 per month for act of duty benefits and $2,197 for not on duty benefits.

      . Pursuant to the authority granted in Minn. Stat. § 353.03, subd. 3(c) (2004), the PERA Board has established a fact-finding process to review staff denials of applications for disability benefits. Appeals are referred to an administrative law judge who conducts a conference, permits the applicant to present evidence and issues findings of fact, conclusions of law, and a recommendation to the PERA Board.

      . Even if a broad definition of "any act of duty” did conflict with the policy statement, our general rules of construction suggest that, where there is conflict between general introductory or explanatory provisions and the plain meaning of the specific words of the operative provision, the specific control the general. In re Atkinson, 291 N.W.2d 396, 400 (Minn. 1980).

      . The evidence provided by Brittain to the ALJ was in the form of a written statement, presented to the PERA Board, and received in evidence at the fact-finding proceeding. No objection was made by the PERA staff to this form of evidence, either before the ALJ or the PERA Board. Accordingly, we consider it to be record evidence.

      . Brittain also complained of other incidents of hostility by his supervisor that had less direct effect on his performance of specific duties — speaking poorly of Brittain to coworkers, labeling him as a "male slug” and providing increased scrutiny and negative evaluations. These incidents are more generalized and perhaps involve Brittain in a more passive, reactive role. But we need not decide whether these incidents alone would satisfy the act of duty requirement because the evidence of other incidents provides sufficient causal connection between the hostile environment and Brittain's performance of specific tasks and functions.

      . The dissent disagrees with our analysis of the record in two respects. First, the dissent disagrees with our conclusion that Brittain’s evidence of specific harassment directed at the performance of his duties was not rebutted by the PERA staff. But the documents cited by the dissent as constituting rebuttal — -a letter, a fact sheet, and staff exceptions — contain only argument, not evidence. Thus, although the PERA staff disagreed with the legal conclusions that could be drawn from Brittain's evidence, they did not offer any evidence to contradict it, such as testimony that Brittain’s supervisor did not reject Brit-tain’s safety concerns about transporting prisoners, did not interfere with his practice of limiting the number of prisoners in a single run, and did not respond to his concerns by giving him fewer and less favorable work assignments.
      Second, the dissent suggests that the only "testimony” of Brittain was his single answer to a general question put to him by a Board member. But, as noted earlier, the written statement provided by Brittain at the fact-finding proceeding constitutes his "testimony” and it contains specific instances of hostility directed to the performance of his duty to transport prisoners. Brittain’s conclusory answer to the Board member — that his disability arose out of his duty to report to work — does not contradict or minimize the details provided in his written statement.

      .The concern of the court of appeals dissent that a broad interpretation would somehow conflict with the workers' compensation laws is not well taken. The disability benefits provided to police officers are meant to be considerably broader than workers' compensation benefits because, as we have seen, they are occupational benefits that relate to a police officer’s specific occupation and they include disabilities incurred while not on duty. Workers' compensation laws only compensate benefits for disabilities that incapacitate the employee from "working at an occupation which brings the employee an income,” and that arise "out of and in the course of employment.” Minn.Stat. §§ 176.101, subd. 5(2), 176.021, subd. 1 (2004).

      . The PERA Board held that Brittain’s "inability to continue in his position did not result from an Act of duty as the Board interprets Minn. Stats. § 353.63 and § 353.656, subd. 1 (2004).” The majority concludes that the Board interpreted "any act of duty” as limited to those acts involving "hazardous situations.”

      . We have said that "[s]eparation of powers principles dictate the continued adherence to limited [judicial] review” in proceedings on certiorari. Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 674 (Minn.1990). Those principles are relevant in this case because the legislature vested the responsibility for "allowfing] or disallow[ing] claims for * * * [disability] benefits payable from the fund” in the PERA Board. Minn.Stat. § 353.03, subd. 3(b) (2004).

      .The ALJ recommended that the PERA Board grant Brittain's request for benefits under Minn.Stat. § 353.656, subd. 1. But the ALJ never explicitly found that Brittain’s injury was tied to an act of duty or that he indeed was ever actually harassed. Instead, the ALJ "express[ed] no opinion on what really happened.” It was enough for the ALJ to conclude that Brittain believed he was being harassed, and therefore the ALJ concluded that "the primary cause for [Brittain’s] depression was the hostility which [he] perceived in his working environment.” Thus, the ALJ's recommendation, which the Board rejected, sheds no light on the causation issue.

      . The proceedings before the ALJ were apparently not a "contested case under chapter 14.” Minn.Stat. § 353.03, subd. 3(c) (2004). Moreover, although it appears the hearing before the ALJ was tape-recorded, the record contains neither a copy of the tape nor a copy of the transcript from the hearing.

      . For example, in a March 2, 2004 letter, the PERA staff stated that there was not "enough evidence to substantiate that [the] disabling condition is duty related.” (Emphasis added). The record also contains a "Fact Sheet,” dated August 30, 2004, from the PERA staff and directed to the Board that states: "Mr. Brittain's mental illness is not a result of the trauma normally associated with the duties of a deputy sheriff.” (Emphasis added). The PERA staff also filed a document titled "Staff Exceptions to the Administrative law Judge's Findings of Fact and Conclusions of Law, and Recommendation.” In the exceptions, the PERA staff told the Board that "Brittain was experiencing increased anxiety as a result of personnel changes, office reorganization and his interaction with his supervisor, * * * not because of his duties as deputy sheriff, as outlined in the job description for that position.” The PERA staff also stated that "the evidence demonstrated that it was not the nature of the work that Mr. Brittain performed that resulted in his disability. Rather it was his reaction to the management style of his supervisor that caused his depression.”

      .Exhibit 35 is apparently what the majority characterizes as having been marked at Tab 35 and introduced as Exhibit 30 during the ALJ proceeding.

      . Appended to Exhibit 35 is the charge of discrimination Brittain filed with the Minnesota Department of Human Rights, affidavits from coworkers, and a document that appears to be a chronology. These attachments do not contain evidence of specific instances of harassment. They simply set forth general assertions that Brittain was harassed while he was at work. Moreover, the record indicates that the Minnesota Department of Human Rights dismissed Brittain's charge of discrimination for lack of probable cause.


author: HANSON, Justice.

text:
    MANPOWER, INC., Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. A06-468.
    Supreme Court of Minnesota.
    Dec. 7, 2006.
    Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, Bradford S. Delapena, Assistant Attorney General, State of Minnesota, Saint Paul, MN, for Respondent.
    Walter A. Pickhardt, Lisa R. Pugh, Faegre & Benson, LLP, Minneapolis, MN, for Relator.
   OPINION

HANSON, Justice.

Relator Manpower Incorporated (Manpower) is a Wisconsin corporation that operates, files a return, and pays taxes in Minnesota. In 1999 and 2000 (the tax years at issue), Manpower excluded the income of its wholly-owned subsidiary, Manpower France (MPF), from the net income it reported in its Minnesota income tax returns, pursuant to Minn.Stat. § 290.17, subd. 4(f) (2004), which states: “The net income and apportionment factors * * * of foreign corporations and other foreign entities which are part of a unitary business shall not be included in the net income or apportionment factors of the unitary business.” Following an audit, the Commissioner of Revenue determined that Manpower was required to include MPF’s income on its Minnesota income tax returns. The Commissioner reasoned that MPF changed from a foreign to a domestic entity effective July 13,1999, when it elected to be classified as a partnership for federal income tax purposes by “checking the box” on Internal Revenue Service Form 8832. Manpower appealed the Commissioner’s order to the Minnesota Tax Court, arguing that its federal income tax election did not alter its status as a “foreign entity.” On cross-motions for summary judgment, the tax court affirmed the Commissioner’s order. We reverse.

Manpower is a Wisconsin corporation that specializes in the recruitment of permanent, temporary, and contract labor and in the assessment and training of employees. It owns approximately 99 percent of MPF. MPF was organized in 1956 under the laws of France as a “Société a Respon-sabüité Limitée” (SARL). A SARL is somewhat akin to a limited liability company under Minnesota law in that its shareholders (also called “associates” or “members”) are not personally liable for the company’s debts. Cf. MinmStat. § 322B.303 (2004) (limiting the personal liability of members of a limited liability company).

MPF operates solely in France. It has never conducted business in Minnesota or any other state in the United States. As a SARL that is owned by a United States taxpayer, MPF is treated under federal income tax laws as an association that may be classified as either a corporation or a partnership, at MPF’s election. An election to be classified as a partnership is made by simply checking the box on the Internal Revenue Service Form 8832. Treas. Reg. §§ 301.7701-2, -3 (as amended 1999).

Before July 13, 1999, MPF was treated as a corporation for federal income tax purposes. Effective July 13, 1999, MPF elected to be classified as a partnership. Under federal income tax laws, the consequences of this election were: (1) the assets and liabilities of MPF were deemed to have been distributed to its shareholders in liquidation of the corporation as of July 13, 1999, Treas. Reg. § 301.7701-3(g) (as amended 1999); (2) the shareholders were deemed to have contributed all of the distributed assets and liabilities to a newly-formed partnership as of July 13, 1999, id.; and (3) Manpower, as a deemed partner, was thereafter required to include its distributive share of MPF’s net income or losses in Manpower’s federal income tax returns, I.R.C. § 702(a) (2000).

When MPF elected to be treated as a partnership it also filed a one-time federal partnership informational income tax return. In its return, MPF stated that it was filing solely to effectuate its election and that, as a “foreign partnership” that does not have a source of income in the United States, it is not otherwise required to file federal partnership income tax returns. On its Minnesota income tax returns, Manpower reported its federal gross taxable income but subtracted Manpower’s distributive share of MPF’s net income because it viewed MPF as still being a “foreign entity.”

After auditing Manpower’s Minnesota tax returns, the Commissioner determined that Manpower should have included Manpower’s distributive share of MPF’s net income because MPF was now a “domestic entity.” Accordingly, the Commissioner assessed additional corporate franchise taxes against Manpower. After Manpower’s administrative appeal with the Commissioner was denied, Manpower appealed to the Minnesota Tax Court, arguing that the plain language of section 290.17, subd. 4(f), requires the exclusion of the net income from a “foreign entity” and that MPF continued to be a “foreign entity” for Minnesota income tax purposes.

Both parties moved for summary judgment. The tax court granted summary judgment in favor of the Commissioner, concluding that MPF became a domestic entity when it elected to be classified as a partnership for federal income tax purposes. Manpower, Inc. v. Comm’r of Revenue, No. 7739 R, 2006 WL 89842, at *5 (Minn. T.C. Jan. 12, 2006).

Manpower acknowledges that MPF’s election has some “parallel consequences for federal and Minnesota purposes.” Manpower agrees that, for Minnesota income tax purposes, MPF should be treated as if the SARL was liquidated and its assets were contributed to a partnership. But Manpower argues that MPF’s change from a corporation to a partnership only changed the “classification,” meaning the legal nature of the entity, not the nationality of that entity. Manpower argues that the partnership resulting from MPF’s election for federal tax purposes is a foreign partnership.

We may review any final order of the tax court on the ground that the tax court lacked jurisdiction or committed an error of law or that its order was not justified by the evidence or in conformity with the law. Minn.Stat. § 271.10, subd. 1 (2004); Cmty. Mem’l Home at Osakis, Minnesota, Inc. v. County of Douglas, 573 N.W.2d 83, 86 (Minn.1997). Where the facts are undisputed, we review the tax court’s legal determinations, including the interpretation of statutes, de novo. Busch v. Comm’r of Revenue, 713 N.W.2d 337, 342 (Minn.2006); Kmart Corp. v. County of Steams, 710 N.W.2d 761, 765 (Minn. 2006) (“[TJhis court is not bound by decisions of the tax court, especially in the area of statutory interpretation.”).

The Unitary Business Principle

The parties disagree about the extent to which this decision should be guided by the unitary business principle. Because we conclude that this principle does provide some context for Minnesota’s exclusion of the net income and allocation factors of a “foreign entity,” we will briefly discuss it here.

Under the Due Process Clause of the Fourteenth Amendment, a state may tax income generated in interstate commerce if there is: (1) a “minimal connection” between the interstate activities generating the income and the state; and (2) a “rational relationship” between the income attributed to the state and the “intrastate values” of the business being taxed. Mobil Oil Corp. v. Comm’r of Taxes, 445 U.S. 425, 436-37, 100 S.Ct. 1223, 63 L.Ed.2d 510 (1980). Income earned in one state may be taxed in another state, even if the income can be separately accounted for, so long as the intrastate and extrastate activities are part of a single “unitary business.” Id. at 438, 100 S.Ct. 1223. The unitary business principle recognizes that such contributions to income as functional integration, centralization of management, and economies of scale arise “from the operation of the business as a whole.” Id. Therefore characterizing the income of the business as having a single identifiable geographical “source” may be misleading. Id.

Minnesota applies the unitary business principle by combining the incomes of separate corporations engaged in a unitary business and then apportioning them to Minnesota using an apportionment formula that takes into account the extent to which the unitary business’s sales, tangible property and payroll are made, used, and paid in Minnesota. Minn.Stat. § 290.191, subd. 2 (2004) (defining the apportionment formula of general application); Caterpillar, Inc. v. Comm’r of Revenue, 568 N.W.2d 695, 696 (1997). Although the Due Process and Commerce Clauses of the United States Constitution would permit inclusion of the income of foreign members of the unitary group, Minnesota has adopted the “water’s edge” model of combined reporting, which includes only the income of domestic members of the unitary group. Hutchinson Tech., Inc. v. Comm’r of Revenue, 698 N.W.2d 1, 3-4 (Minn.2005); Minn. Stat. § 290.17, subd. 4(f) (excluding net income and apportionment factors of foreign corporations and other foreign entities). The term “water’s edge” refers to the fact that this model does not extend beyond the geographic boundaries of the United States in determining what activities the state will tax. Caterpillar, 568 N.W.2d at 696 n. 2.

This water’s edge model creates a difference between federal and Minnesota income tax laws: federal income tax law requires a partner to include in the net income reported for a unitary business its distributive share of the net income of both domestic and foreign partnerships that are members of a unitary business, but Minnesota income tax law requires a partner to exclude its distributive share of the net income of a foreign partnership (as a “foreign entity”) that is a member of a unitary business.

The Definitions of “Domestic” and “Foreign” Entities

The parties agree that the concepts of “domestic” and “foreign” under Minnesota income tax laws are analogous to the concepts of “domestic” and “foreign” under federal income tax law. As such, the parties agree that the term “domestic entity” should be understood to mean an entity “created or organized in the United States, or under the laws of the United States or of any state” and a “foreign entity” means any entity other than a domestic entity. Minn.Stat. § 290.01, subds. 5, 5a (2004); see also I.R.C. § 7701(a)(4) (2000) (“The term ‘domestic’ * * * means created or organized in the United States or under the law of the United States or of any state * * *.”); I.R.C. § 7701(a)(5) (2000) (“The term ‘foreign’ * * * means a corporation or partnership which is not domestic.”). We agree with the parties’ interpretation. Thus, the narrow issue before us is whether MPF was “created or organized in the United States, or under the laws of the United States or of any State.”

Was MPF Created or Organized Under the Laws of the United States?

The Commissioner argues that when MPF elected to be classified as a partnership for federal income tax purposes, a newly formed partnership was “created or organized” under the income tax laws of the United States. The Commissioner also argues that because Manpower included its distributive share of the MPF’s income in its federal taxable income, Manpower must also include this amount in its Minnesota taxable income.

Manpower argues that the words “created or organized * * * under the laws of the United States” are plain on their face and refer to the nationality of the entity, not to the classification of the legal nature of the entity, such as whether it is a corporation or partnership. Manpower argues that because MPF was originally created and organized in France, and operates solely in France, MPF is still a foreign entity and the only effect of its check-the-box election is to convert it from a foreign corporation to a foreign partnership for purposes of federal income taxes.

Manpower’s arguments are persuasive for several reasons. First, although MPF is “deemed” to be a partnership under federal tax laws, a partnership cannot actually be created or organized under federal income tax laws, or even under any other federal laws. In the United States, partnerships can only be created or organized under the laws of the various states, such as under the Uniform Partnership Act in Minnesota. See Minn. Stat. § 323A (2004). The Commissioner has not referred us to any federal law which provides a mechanism for the creation or organization of a partnership and the Commissioner does not claim that MPF was created or organized under any state partnership law. Nor do the Treasury Regulations that permit foreign entities like MPF to elect partnership status for federal income tax purposes define what persons are eligible to be partners, what acts or documents are necessary to form a partnership, what legal attributes attach to a partnership, or what rights and obligations are granted to or imposed on the partners.

Second, the federal regulation authorizing the election to be treated as a partnership refers only to the classification of the entity, not to its nationality. It states:

Association to partnership. If an eligible entity classified as an association elects * * * to be classified as a partnership, the following is deemed to occur: The association distributes all of its assets and liabilities to its shareholders in liquidation of the association, and immediately thereafter, the shareholders contribute all of the distributed assets and liabilities to a newly formed partnership.

Treas. Reg. § 301.7701-3(g)(l)(ii) (emphasis added) (as amended 1999). This regulation says nothing about how an entity is “created or organized” or under which country’s laws it was created or organized.

Third, MPF is still a SARL in France. That status is not inconsistent with MPF being deemed a partnership because a SARL “has the attributes of both [a] partnership and [a] corporation. It has limited liability (like a corporation) and limitations on interest-share ownership (like a partnership).” John Charles Newman, French Tax and Business Law Guide ¶ 7-400 (2000). And a SARL is considered to have only one nationality, which is usually the place where the SARL’s principal office is located. Id. ¶ 5-470. In order to change its nationality, a SARL must transfer its principal office out of France. Id. ¶ 5-490. MPF continues to have its principal office in France and its articles of formation remain on file in France. In other words, the source from which MPF derives its status as a separate legal person remains the laws of France.

The Commissioner relies on language in Hutchinson for the argument that the federal election resulted in MPF becoming a domestic partnership. 698 N.W.2d at 12-13. Although Hutchinson does state that the “deeming” that occurs under federal income tax laws “appears to be treated as creating a conclusive presumption,” see id. at 13, that presumption would only address MPF’s change in form from a corporation to a partnership. The presumption does not dictate any change in MPF’s nationality.

We hold that MPF’s check-the-box election to be treated as a partnership under federal income tax laws did not result in MPF being “created or organized under the laws of the United States.” As a result, MPF remained a foreign entity and Manpower was required to exclude its distributive share of MPF’s net income and apportionment factors from the net income and apportionment factors that Manpower reported in its Minnesota income tax returns.

Reversed.

      . Manpower UK, a subsidiary of Manpower, owns the remaining one percent of MPF. Although Manpower and Manpower UK operate as a unitary business, MPF is a distinct legal entity from the two.

      . Federal law provides the mechanism for the creation of legal entities in only very limited situations, none of which is present here. See, e.g., 12 U.S.C. §§ 21-216(d) (2000) (national banks).

      . At oral argument, the Commissioner referred us to the exception contained in the federal tax law’s definition of "domestic,” which means "created or organized in the United States or under the law of the United States or any State unless, in the case of a partnership, the Secretary provides otherwise by regulations.” I.R.C. § 7701(a)(4) (emphasis added). But the Commissioner did not cite any regulation where the "Secretary” did "provide otherwise.” Because the check-the-box regulations deal only with classification and not nationality, we do not interpret them to "provide otherwise.”

      . One treatise confirms that the nationality of an entity is determined by identifying the jurisdiction that grants its charter. 2 Boris I. Bittker & James S. Eustice, Federal Income Taxation of Corporations and Shareholders ¶ 15.01 [3] (7th ed.2000) (stating that “an entity is a domestic corporation if it is treated as a corporation for U.S. tax purposes and has a charter or similar document creating it from either the United States, one of the fifty states, or the District of Columbia; all others are 'foreign' corporations”). The United States Supreme Court has also suggested that whether a corporation is foreign or domestic is dependent on its "charter.” See, e.g., Can. Southern R. Co. v. Gebhard, 109 U.S. 527, 537, 3 S.Ct. 363, 27 L.Ed. 1020 (1883) ("A corporation 'must dwell in the place of its creation, and cannot migrate to another sovereignty,’ though it may do business in all places where its charter allows * * *. But wherever it goes for business it carries its charter, as that is the law of its existence * * *."). We have expressed a similar view on nationality. See, e.g., State ex rel. Ohsman & Sons, Co. v. Starkweather, 214 Minn. 232, 237, 7 N.W.2d 747, 749 (1943) (holding that while a state statute granted a foreign corporation the "rights and privileges” enjoyed by domestic corporations, it did not "transform such corporations into domestic or resident corporations”).

      . Our conclusion is confirmed by Treas. Reg. § 301.7701-5(a) (2004) ("The determination of whether an entity is domestic or foreign is made independently from the determination of its corporate or non-corporate classification.”). Although the Commissioner argues that this regulation should not be applied retroactively, it can be argued that the regulation is only a codification of the pre-existing rule. See, e.g., 69 Fed.Reg. 49809 (Aug. 12, 2004):

        Under the existing rules, the characterization of a business entity for Federal tax purposes is established in two separate and independent steps. The first involves a determination of whether the entity is a corporation or a non-corporate entity (e.g., a partnership). The second involves a determination of whether the entity is foreign or domestic.
      (Emphasis added.) The Commissioner agrees that this regulation precludes Minnesota from treating MPF as a domestic entity after the regulation's effective date of January 30, 2006, but argues that the regulation is not retroactive. We view the regulation as a correct description of the effect of MPF’s election when made in 1999.