NE Supreme Court slap at LB775 participant: interest still due on taxes the State eventually refunded to IBP because IBP did not initially pay taxes on time; NDR lacks discretion to waive interest WORLD-HERALD BUREAU Tyson Fresh Meats v. State, 270 Neb. 535 Filed October 21, 2005. No. S-04-1294. The Nebraska Supreme Court ordered the former IBP Inc. to pay more than $400,000 in interest on back taxes, even though 75 percent of the delinquent amount later was refunded to the company. Now part of Tyson Fresh Meats Inc., IBP qualified for sales and use tax refunds under Nebraska's economic development incentive law, commonly known as LB 775 for its 1987 legislative bill number. An audit by the Revenue Department discovered that IBP had not paid more than $916,266 in use taxes on equipment purchased out of state between Sept. 1, 1993, and Aug. 31, 1996. The use tax is the tax purchasers are required to self-report and pay when the seller does not collect Nebraska sales tax. The Revenue Department ordered Tyson to pay $1.4 million - the owed taxes plus $401,284 in interest and $91,627 in penalties. The company then was refunded $670,280 under LB 775. The company's lawyer argued that IBP should not have to pay interest on the refunded amount. The high court disagreed in a six-page ruling issued Friday and written by Chief Justice John Hendry. "We conclude that IBP's argument is without merit. The State argues, and we agree, that with respect to the statutory framework set forth in §§ 77-2708 and 77-2709, there can be no "overpayment" to offset against an "underpayment" unless payment was made when due. Though the use tax in this case was eventually paid, that is not the relevant inquiry. The pertinent question is when the tax was paid, and in this case, it is undisputed that the tax was not paid when due." "IBP failed to pay the use tax owed when due," he wrote. "The tax was eventually paid and refunded, but it was not paid more than once and there was no error or illegality in the collection or computation of the tax." The Supreme court further disagreed with the District Court that had said the NDR could have waived interest, "§ 77-2711(11)provides that "[t]he Tax Commissioner in his or her discretion may waive all or part of any penalties provided by the provisions of such act, but may not waive the minimum interest on delinquent taxes . . . except interest on use taxes voluntarily reported by an individual. ...Under the plain terms of § 77-2711(11), the Department was precluded from waiving the assessment of interest. Furthermore, the one exception, "interest on use taxes voluntarily reported," does not apply in this case. IBP's use tax was not "voluntarily reported," but assessed after an audit which resulted in a deficiency determination.We therefore agree with the State on its cross-appeal and conclude that the district court erred in finding the Department had the discretion to waive the assessment of interest. Although we disagree with the district court's reasoning, where the record demonstrates that the decision of the trial court is ultimately correct, although such correctness is based on a ground or reason different from that assigned by the trial court, an appellate court will affirm. See Semler v. Sears, Roebuck & Co., 268 Neb. 857, 689 N.W.2d 327 (2004). "