Topeka ? The Kansas Board of Tax Appeals has rejected Shawnee County’s bid to recover about $3.9 million in back taxes from Westar Energy on airplanes the Topeka-based utility leased, said Rich Eckert, county counselor.

Eckert told Shawnee County commissioners Monday about the tax board’s decision. Eckert said he felt BOTA reached its decision by incorrectly applying a state law passed in 2004. The commission then voted 3-0 to authorize Eckert to appeal BOTA’s ruling to a Kansas district court.

Shawnee County began trying to recover the back taxes after Westar concluded in an internal audit in April 2003 that the planes were used extensively for personal travel by former company executives David Wittig and Douglas Lake.

The tax appeals board initially granted Westar a tax exemption for four leased planes based on a state law allowing companies to receive a tax break on aircraft used exclusively for business purposes.

In 2004, the Legislature amended state law to allow companies exemptions for aircraft used “predominantly” to earn income. That law defined “predominantly” as at least 80 percent of the total use of the aircraft or use that would allow all of the aircraft costs to be deducted for federal income tax purposes.

BOTA noted the amended statute and earlier court cases in its decision to rule against the county in the tax case.

But Eckert said Monday that Westar shouldn’t receive tax exemptions on the planes for the years 2000 through 2002 because the law granting such exemptions wasn’t passed until 2004.

“If the Legislature in 2004 meant for the statute to be used retroactively, it is required by the law that the statute expressly say that it will be construed retroactively,” Eckert said. “This law does not say that, so we do not understand BOTA’s rulings.”

Wittig and Lake were convicted in September 2005 of conspiracy, wire fraud, money laundering and circumvention of internal controls in a series of schemes aimed at “looting” millions of dollars in additional salary and benefits from Westar. A federal appeals court overturned the convictions on Jan. 5.

The appeals court ruled that the two couldn’t be retried on the wire fraud and money laundering charges, but could still face one count each of conspiracy.