AMERICAN BANKERS INSURANCE GROUP, PLAINTIFF-APPELLANT,

v.

UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

DUBINA, Circuit Judge: American Bankers Insurance Group, Inc. (“ABIG”) appeals the district court’s grant of summary judgment to the United States, finding the long distance telephone services ABIG purchased.from AT&T subject to an excise tax under Internal Revenue Code § 4252(b)(1).

For the reasons that follow, we reverse the district court’s judgment and hold that the long distance telephone services at issue are not subject to taxation under § 4252(b)(1) or § 4252(b)(2). I.

BACKGROUND A.

Facts Between October¹, 1998, and March 31, 2002, taxpayer, ABIG, purchased interstate, international, and (in five states) intrastate long distance service from AT&T: ABIG paid a uniform toll rate for all interstate calls made within the United States, uniform toll rates for all intrastate long distance calls made within the five states in which it purchased service, and toll rates for international calls (other than calls to and from Mexico) that varied only according to which country the calls were being placed.

AT&T collected federal' excise taxes from ABIG on the services pursuant to § 4252(b)(1) of the Internal Revenue Code (“LR.C.”), and remitted the taxes collected to the Internal Revenue Service (“IRS”).

Subsequently, ABIG filed claims with the IRS for a refund of $288,496.10, representing the federal excise taxes collected on services rendered between October¹, 1998, and September 30, 2001.

ABIG later filed claims for an additional refund in the amount of $73,267.14 for the taxes on telephone calls placed between October¹, 2001, and March 31, 2002.

ABIG sought the refunds, contending that the federal excise tax on long distance telephone calls does not apply to calls for which the rate does not vary based upon the distance of the call. B.

Procedural History The IRS did not respond to either of ABIG’s refund claims.

ABIG then brought suit in the Southern District of Florida seeking a refund in the amount of $361,763.24 in communications excise taxes and interest.

The parties filed cross-motions for summary judgment, and the district court ruled in favor of the government finding that the word “and” as used in § 4252(b)(1) is ambiguous and in the context of the statute means “or.”

According to the district court, the excise tax at issue applies to toll telephone service varying by distance or elapsed transmission time.

ABIG then perfected this appeal.

II.ISSUE Whether Internal Revenue Code § 4252(b)(1), defining “toll telephone service” as a service for which there is a “toll charge which varies in amount with the distance and elapsed transmission time” of each call, is applicable to a toll charge varying with elapsed transmission time, but not distance.

III.STANDARD OF REVIEW This court reviews the district court’s disposition of cross-motions for summary judgment de novo, applying the same legal standards used by the district court, viewing the evidence and all factual inferences therefrom in the light most favorable to the non-movant, and resolving all reasonable doubts about the facts in favor of the non-moving party.

Gerling Global Reinsurance Corp. of America v. Gallagher, 267 F. 3d 1228, 1233-34 (11th Cir.2001).

Statutory interpretation is a question of law that we also review de novo.

Smith v. BellSouth Telecomm., Inc., 273 F. 3d 1303, 1305 (11th Cir.2001).

IV.DISCUSSION A.

The plain meaning of § 1252(b)(l)’s requirement that rates vary by “distance and elapsed transmission time” uses “and” conjunctively 1.

The phrase is unambiguous The IRS collects taxes for toll telephone service, defined as “(1) a telephonic quality communication for which (A) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication.”²⁶ U.S.C. § 4252(b)(1)(A) (emphasis added).

ABIG contends that the statutory language quoted above is unambiguous, requiring the word “and” in the phrase “distance and elapsed transmission time” to be interpreted according to its ordinary, natural meaning.

Accordingly, ABIG asserts “and” is used conjunctively.

ABIG urges that to be taxable toll telephone service under this provision, the toll service must vary by both distance and elapsed transmission time.

The government contends that the statute is ambiguous and does not plainly require variation by both time and distance.

Contending that the word “and” can be read conjunctively or disjunctively, the government argues that the district court was correct in determining that Congress did not intend to use the conjunctive meaning of “and” in requiring under § 4252(b)(1) that taxable toll telephone service “var[y] in amount with the distance and elapsed transmission time.”

In construing a statute, “[t]he preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 1593, 158 L.Ed.2d 338 (2004) (second alteration in original) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)).

This inquiry requires the court to “begin[ ] with the statutory text, and end[ ] there as well if the text is unambiguous.”

Id.

Furthermore, words are given their ordinary, plain meaning unless defined otherwise.

Id. at 183, 124 S.Ct. at 1593-94; see also In re Paschen, 296 F. 3d 1203, 1207 (11th Cir.2002).

More specifically, unless the context dictates otherwise, the word “and” is presumed to be used in its ordinary sense, that is, conjunc-tively.

Crooks v. Harrelson, 282 U.S. 55, 58, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930) (construing taxing statute and concluding that “nothing in the context or in other provisions of the statute ... warrants the conclusion that the word ‘and’ was used otherwise than in its ordinary sense [, con-junctively]; and to construe the clause [disjunctively,] would be to add a material element[,] and thereby to create, not to expound, a provision of law”); see also Bruce v. First Fed.

Sav. and Loan Ass’n of Conroe Inc., 887 F. 2d 712, 715 (5th Cir.1988) (“The word ‘and’ is therefore to be accepted for its conjunctive connotation rather than as a word interchangeable with ‘or’ except where strict grammatical construction will frustrate clear legislative intent.”) (citing, inter alia, Peacock v. Lubbock Compress Co., 252 F. 2d 892, 893-95 (5th Cir.1958) (construing “and” in the phrase “an employer engaged in ... the ginning and compressing of cotton” as meaning “or” because “it is an acknowledged undisputed fact ... that compressing is an operation entirely removed from ginning and that the two are never carried on together.”) (emphasis added)).

Here, there is nothing in the statutory context to suggest that “and” is used in the provision as meaning “or.”

The phrase is unambiguous.

The plain meaning is clear: “and” is used conjunctively.

See also America Online, Inc. v. United States, 64 Fed.Cl. 571, 577-78 (2005) (“Section 4252(b)(1) unambiguously requires that a toll charge vary in amount according to both the distance and duration of calls.”); accord Honeywell Int’l, Inc. v. United States, 64 Fed.Cl. 188, 199 (Fed.Cl. 2005); Office Max, Inc. v. United States, 309 F. Supp. 2d 984, 993 (N.D.Ohio 2004); Nat’l R.R. Passenger Corp. v. United States, 338 F. Supp. 2d 22, 27 (D.D.C.2004); Fortis, Inc. v. United States, No. 03 Civ. 5137(JGK), 2004 WL 2085528, at *6 (S.D.N.Y. Sept. 16, 2004); Reese Bros., Inc. v. United States, No. 03-CV-745, 2004 WL 2901579, at *7 (W.D.Pa. November 30, 2004).

The district court stated that even if it were to find the statute unambiguous, “this is one of the rare cases where the legislative intent is sufficiently clear that ... the [c]ourt would still be entitled to rely on extrinsic evidence of Congressional intent.”

American Bankers Ins.

Group, Inc. v. United States, 308 F. Supp. 2d 1360, 1367 n. 7 (S.D.Fla.2004).

We respectfully disagree with the district court’s analysis.

Where the statutory text is unambiguous the inquiry ends.

BedRoc Ltd., LLC, 541 U.S. at 183, 124 S.Ct. at 1593.

In fact, the statutory context supports the conjunctive use of “and” in § 4252(b)(l)’s requirement that the rate must vary “by distance and elapsed transmission time.”

Though resort to the legislative history is unnecessary, as we conclude the statute is unambiguous, we note the legislative history supports our conclusion.

In defining taxable “toll telephone service,” both parties agree that Congress, through the Excise Tax Reduction Act of 1965, Pub. L.

No. 89-44, § 302, 79 Stat. 136 (“1965 Act”), sought to define the method of service provided by AT&T, the company, at the time of enactment, holding a monopoly on all long-distance telephone services.

Prior to the 1965 Act, “toll telephone service” was defined as “a telephone or radio telephone message or conversation for which (1) there is a toll charge, and (2) the charge is paid within the United States.”

Pub. L.

No. 85-859, § 133(a), 72 Stat. 1275, 1290 (1958).

In 1965, it appears Congress amended the definition to its current language in an effort to modify and update it “in order to reflect and to meet the changing technology and market conditions of the industry.”

Trans-Lux Corp. v. United States, 696 F. 2d 963, 967 (Fed.Cir.1982).

AT&T’s long distance service at that time charged long distance telephone services on the basis of the elapsed time of each individual call, multiplied-by a rate determined through the use of distance mileage bands or for “Wide Area Telephone Service,” commonly referred to as WATS, with a periodic charge for unlimited access within a specified area outside of local service.

Thus, at the time of the 1965 Act, AT&T’s service, which Congress sought to define as taxable toll service, did in fact utilize rates that varied by both elapsed transmission time and distance.

Moreover, at the time of the 1965 Act, it was likely inconceivable that charges would be made without reference to distance as now exists.

In addition, Congress was seeking to modify and narrow the definition and to phase this excise tax out entirely by 1969.

See America Online, 64 Fed.Cl. at 578 (citing Trans-Lux Corp., 696 F. 2d at 966).

Congress could have amended the language in 1965 to include broad terms able to adapt to technological changes; instead, Congress specifically defined “toll telephone service” with an eye toward the tax expiring four years later. See id.

Consequently, now, forty years later, “if the statutory language no longer fits the infrastructure of the industry, the IRS needs to ask for congressional action to bring the statute in line with today’s reality.

It cannot create an ambiguity that does not exist or misinterpret the plain meaning of statutory language to bend an old law toward a new direction.”

America Online, 64 Fed.Cl. at 578 (quoting Nat’l R.R., 338 F. Supp. 2d at 27-28).

Based on the foregoing, we agree with the numerous courts that have concluded the language in the phrase at issue is clear and unambiguous.

See America Online, 64 Fed.Cl. at 577-78 (“Section 4252(b)(1) unambiguously requires that a toll charge vary in amount according to both the distance and duration of calls.”); Honeywell Int’l, Inc. v. United States, 64 Fed.Cl. at 199 (finding § 4252(b)(l)’s phrase “distance and elapsed transmission time” unambiguous and noting that “and” can be construed in certain contexts cumulatively, but finding the clearly conjunctive use in § 4252(b)(1) “ ‘supported by the fact that both distance and time were ... factors in determining charges for toll telephone service at the time of the 1965 amendments!];] in this context, it is only logical to conclude that when Congress wrote the phrase, ... it meant for the word “and” to be read conjunctively.’ ”) (quoting Office Max, 309 F. Supp. 2d at 995); Nat’l R.R. Passenger Corp., 338 F. Supp. 2d at 27-28 (finding phrase unambiguous; “and” intended con-junctively); Fortis, Inc. 2004 WL 2085528, at *6 (same), Reese Bros., Inc. v. United States, 2004 WL 2901579, slip op. at *7 (same).

Although “and” may be used cumulatively in some contexts, here, the statutory language is plain and unambiguous-the provision requires that to come within the definition, of “toll telephone service” the rate must vary by both “distance and elapsed transmission time.”

While true that the plain meaning rule is not to be blindly applied if application leads to an absurd or futile result, Hughey v. JMS Development Corp., 78 F. 3d 1523, 1529 (11th Cir.1996), here the plain meaning of the statute does not lead to such a result.

See America Online, 64 Fed.Cl. at 578-79. “[T]o justify a departure from the letter of the law upon that ground, the absurdity must be so gross as to shock the general moral or common sense.”

Crooks, 282 U.S. at 60, 51 S.Ct. at 50.

Here, no gross absurdity results from a plain meaning interpretation of the provision.

The plain meaning is not an “unreasonable [interpretation] plainly at variance with the policy of the legislation as a whole.”

See United States v. American Trucking Assoc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940) (internal quotation marks omitted).

Instead, using the plain meaning furthers the Congressional intent at the time it was adopted.

Moreover, we note “that in statutes levying taxes the literal meaning of the words employed is most important for such statutes are not to be extended by implication beyond the clear import of the language used.”

Crooks, 282 U.S. at 61, 51 S.Ct. at 51 (internal quotation omitted). “The Court must presume that Congress meant what it said when it tailored the definition of taxable ‘toll telephone service’ to include distance and time requirements, particularly in light of the overall goal of the Act to reduce and restrict the application of federal excise taxes.”

Office Max, 309 F. Supp. 2d at 1000; see also Honeywell Int’l, Inc., 64 Fed.Cl. at 199-200; America Online, 64 Fed.Cl. at 578. “While it may have been short-sighted of Congress to define ‘toll telephone service’ to specifically address the charging scheme used by AT&T in 1965, ... ‘[i]t is beyond [the court’s] province to rescue Congress from its drafting errors.”

Honeywell Int’l, Inc., 64 Fed.Cl. at 199 (first alteration in original) (quoting Lamie v. United States Tr., 540 U.S. 526, 542,124 S.Ct. 1023, 1034,157 L.Ed.2d 1024 (2004) (internal marks and citation omitted)). 2.

Revenue Ruling 79-404 does not provide support for abandoning § 4252(b)(l)’s plain meaning The government also argues that in interpreting § 4252(b)(1) the district court properly attributed “great weight” to Revenue Ruling 79-404.

Revenue Ruling 79-404 deals with whether communications services between onshore facilities and offshore ships fall within § 4252(b)(l)’s definition of “toll telephone service.”

While acknowledging that “[l]iterally, the service provided in [the] case does not come within the definition of ... toll telephone service because the charge for such services does not vary with distance and therefore does not meet the requirement of section 1252(b)(1),” 1979 WL 51192, Rev. Rul. 79-404, 1979-2 C.B. 382 (1979) (emphasis added), the IRS nonetheless concluded that “a statute may be given an interpretation other than that which follows from its literal language where such interpretation is required in order to comport with the legislative intent.”

Id.; see e.g.

America Online, 64 Fed.Cl. at 579-80.

The government argues that the court should give Revenue Ruling 79-404 Chevron deference.

See Chevron U.S.A., Inc. v. Natural Res.

Def.

Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Under Chevron, the court must first determine whether the congressional intent is clear. Chevron U.S.A., Inc., 467 U.S. at 843-44, 104 S.Ct. at 2781-82.

If the intent is clear, the inquiry ends; the court and agency “must give effect to the unambiguously expressed intent of Congress.”

Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2781-82; see also Ala. Power Co. v. United States Dep’t of Energy, 307 F. 3d 1300, 1312-13 (11th Cir.2002) (holding agency interpretation did not overcome clear intent of statute even if given Chevron deference).

Accordingly, because we hold that § 4252(b)(1) is clear and directly answers the question here, the inquiry ends; we need not give deference to Revenue Ruling 79-404.

Moreover, we need not determine the proper level of deference to be given Revenue Ruling 79-404.

See Wilderness Watch v. Mainella, 375 F. 3d 1085, 1091 n. 7 (11th Cir.2004) (noting “[bjecause [the court] hold[s] that the Wilderness Act speaks directly to the question at issue, we need not resolve the question of the precise level of deference due the agency action under the second prong of Chevron’’). 3.

Re-enactment Doctrine is not applicable The government contends. that even if Revenue Ruling 79-404 is not entitled to deference, under the re-enactment doctrine, Congress should be deemed to have approved the Revenue Ruling because the-federal communications excise tax imposed under § 4251 has been amended and re-enacted since the publication of Revenue Ruling 79-404.

However, the re-enactment doctrine will serve to give weight or approval to an agency interpretation only “[w]here an agency’s statutory construction has been fully brought to the attention of the public and the Congress, and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been discerned.”

North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 535, 102 S.Ct. 1912, 1925, 72 L.Ed.2d 299 (1982) (quotations omitted).

Here, not only is the statutory language clear under § 4252(b)(1), but there is nothing to indicate that Congress was aware of Revenue Ruling 79-404 when it subsequently amended and re-enacted this taxing statute.

The legislative history reveals no mention of Revenue Ruling 79-404 nor does the record reveal consideration of the issue raised in the Ruling.

See, e.g., Office Max, 309 F. Supp. 2d at 1004-1005.

Thus, there is nothing to indicate Congress was aware of Revenue Ruling 79-404 when the taxing provisions were re-enacted.

See id. “When the ‘congressional discussion preceding re-enactment makes no reference to the ... regulation, and there is no other evidence to suggest that Congress was even aware of the ... interpretive position!,] ‘we consider the ... reenactment to be without significance.’ ” America Online, 64 Fed.Cl. at 580-81 (quoting Brown v. Gardner, 513 U.S. 115, 121, 115 S.Ct. 552, 556, 130 L.Ed.2d 462 (1994) (quoting United States v. Calamaro, 354 U.S. 351, 359, 77 S.Ct. 1138, 1 L.Ed.2d 1394 (1957))).

Accordingly, Congressional approval cannot be inferred from re-enactment of this statute.

See America Online, 64 Fed.Cl. at 580-81; Honeywell Int’l, Inc., 64 Fed.Cl. at 201; Office Max, 309 F. Supp. 2d at 1004-1005; Fortis, 2004 WL 2085528, at *12; Reese, 2004 WL 2901579, at *12. B.

The services at issue are not within the statute