A.D. Store Co. v. Executive Director of DePartment of Revenue

19 P.3d 680, 2001 Colo. J. C.A.R. 557, 2001 Colo. LEXIS 65, 2001 WL 66230

• Court: Supreme Court of Colorado
• Decided: January 29, 2001
• Docket: 99SC861
• Status: Published

Opinions

Justice KOURLIS

delivered the Opinion of the Court.

We accepted certiorari in this case to address the imposition of sales tax on alteration services performed by a retail clothing store. We conclude that the alterations are not © taxable under the applicable statute, and therefore reverse the court of appeals.

I.

A.D. Store Company, Inc. d/b/a Auer's operates a specialty retail women's clothing store in the Cherry Creek North area of Denver, Colorado. Auer's sells only fully manufactured, not custom-tailored, clothing, and also offers alteration services on those garments. Auer's had a practice of separately noting the price of the alteration services on the clothing invoice, and assessing sales tax only on the price of the garment and not on the cost of the alteration services. In October of 1994, Auer's received a Notice of Deficiency from the Colorado Department of Revenue for the tax period of October 1991 to August 1994, which assessed sales tax on the alteration services when they were part of the initial purchase.

Auner's filed a timely Protest and Request for Hearing. An administrative hearing took place on April 25, 1996 before Renny Fagan, Executive Director of the Department. The Executive Director issued a Final Determination on February 4, 1997, affirming the Notice of Deficiency. The Director found that there were four situations in which alteration charges could be at issue. The first was when the fitting occurred at the time of the sale and the alteration labor was therefore reflected on the original sales ticket. The second situation was when the customer purchased the garment, left it at the store and returned at a later date for a fitting and eventual alterations. The third was when a customer returned a previously purchased item for alterations, and the fourth was when someone purchased an item as a gift and the recipient returned at a later date for alterations. The Director concluded as a matter of law that only alterations done in connection with the sale of a garment should be subject to sales tax.¹ He found that no sales tax would be appropriate for alterations arranged in cireumstances separate from the initial purchase. He grounded his conclusions in an interpretation of the sales tax statute, and also in the Uniform Commercial Code. As to the latter, he reasoned that the "title" to the garment did not pass until the customer was satisfied with the altered garment.

Auer's appealed that ruling to the Denver district court under section 39-21-105, 11 C.R.S. (2000). The parties stipulated to the relevant facts, and submitted the matter for a determination of law. The district court judge deferred to the Department's conclusion that the cost of the new clothing was equal to the price of the item plus the alteration charge, and therefore affirmed the assessment embodied in the Notice of Deficiency.

Auer's next appealed to the court of appeals. The court of appeals also affirmed the Department's determination. See A.D. Store Co., Inc. v. Executive Dir. of the Dep't of Revenue, 997 P2d 1241 (Colo.App.1999). The court of appeals read the applicable statute to support the assessment of sales tax on some services to the extent those services are performed in connection with the sale. The court distinguished on a factual basis certain Department of Revenue regulations cited by Auer's for the proposition that labor or services rendered in connection with the sale of tangible personal property is not taxable if separately stated on the seller's invoices.

' Lastly, the court of appeals declined to address the question of whether the Uniform Commercial Code (UCC) impacts the analysis of the issues on the grounds that both parties conceded that they were not basing their position on the UCC.

We granted certiorari² and now reverse the court of appeals.

IL

The sales tax statute reads as follows:

[Tlhe sales tax is imposed on the full purchase price of articles sold after manufacture or after having been made to order and includes the full purchase price for material used and the service performed in connection therewith, .... the sales price is the gross value of all materials, labor, and service, and the profit thereon, included in the price charged to the user or consumer.

§ 39-26-102(12), 11 CRS. (2000). "Purchase price" means the price to the consumer. § 89-26-102(7)(a).

Colorado applies its sales tax provisions broadly, with taxation the rule and exemption the exception. See Life & Accident Co. v. Heckers, 177 Colo. 455, 458, 495 P.2d 225, 226 (1972). However, when interpreting a statute, the court must honor the plain meaning of the words when they are clear. § 24-101, 1 CRS. (2000). Accordingly, we must begin with the proposition that the purchase of personal services is generally not subject to taxation in Colorado. Rather, Colorado taxes the purchase of tangible personal property, valued by its sales price.

A.

We find support for this position in the statute itself and in the Department's Regulations. First, the statute does specifically permit the taxation of certain services, such as telephone and telegraph services and gas and electric service. § 89-26-104(1)(c),(d.1), 11 C.R.S. (2000). The inclusion of specific services implies the exclusion of other services. See Black's Law Dictionary 602 (Tth ed.1999) (defining the canon of construction "expressio unius est excelusio alterius ").

Second, the Colorado Code of Regulations supports the conclusion that services are generally not subject to sales tax. Regulation 26-102.12 provides in its first paragraph:

Sales and use tax applies to charges for manufacturing, producing, fabricating and processing tangible personal property which has been made-to-order or tailor-made for the. customer. Manufacturing, producing, fabricating or processing is usually deemed to have occurred when tangible personal property is created, transformed or reduced to a different state, quality, form, property or thing. Transformation may occur by hand, machine, art, chemical action or natural means.

1 Colo.Code Regs. § 201-4, Reg. 26-102.12 (1986). Similarly, the third paragraph reads:

The amount charged the purchaser for labor or services rendered in installing and applying purchased tangible personal property is not subject to tax; provided, that such amount is separately stated and such statement is not to avoid the tax upon the actual sales price of tangible personal property.

Id.

Sales tax is accordingly assessed "[oln the purchase price paid or charged upon all sales and purchases of tangible personal property at retail." § 89-26-104(1)(a). The Department of Revenue Regulation defines "tangible personal property" as embracing "all goods, wares, merchandise, products and commodities, and all tangible or corporeal things and substances which are dealt in, capable of being possessed and exchanged, except newspapers excluded by the law." 1 Colo.Code Regs. § 201-4, Reg. 26-102.15 (1986).

For example, the Department does not impose sales tax on services incidental to the sale, such as delivery services of sand and gravel. 1 Colo.Code Regs. § 201-5 (1986). Similarly, the Department does not tax the personal services of an upholsterer in recovering an item of furniture, but rather taxes the material the upholsterer uses in the process. Id. The regulations do provide for imposition of sales tax on an item of furniture when the upholsterer purchases the furniture himself or herself, reupholsters it and then sells it to the customer. In that cireum-stance, the customer purchases an item that comprises various services as well as various products: the furniture itself, the labor required to manufacture the fabric, and the labor required to apply the fabric to the furniture. The customer purchases the final product from the upholsterer in that cireum-stance, and the customer has had no involvement in the transaction prior to the completion of the final product. Here, the customer purchased the item "off the rack." Like the upholstery example, the customer also contracted for alterations services to tailor the garment to her specifications. That contract represents services incidental to the sale of the garment.

We read the sales tax statute and applicable regulations to provide that no service is taxable, except those services specifically listed in the statute itself; and services rendered in "installing" or "applying" personal property are not taxable. Indeed, in 1943, when called upon to interpret a strikingly similar version of the sales tax statutes, we concluded that "the term{s] 'service' or 'services ... furnished' are inclusive only of services specifically listed as being subject to taxation and taxable under the sales tax law." Carpenter v. Carman, 111 Colo. 566, 573, 144 P.2d 770, 773 (1943).

B.

The Department argues that the alteration services agreed to at the time of the purchase of the garment were not really services but were a part of the purchase transaction. In other words, the Department argues that the purchase of the item was in an "as altered" state, and that, therefore, the alteration services comprised a portion of the purchase price.

Thus, we must examine whether the alteration services undertaken at the time of purchase of the garment are indeed part of the purchase price of the garment, or are personal services separately contracted for.

First, we conclude that the services referenced in the sales tax statute as "service performed in connection" with the sale refers to all of the services that went into the creation or construction of the article. The sales price necessarily includes some value attributable to those services and comprehends all services that predated the point at which the item is offered for sale. The services mentioned in the statute are not separate, additional services on which tax is to be assessed.

Massachusetts has adopted a test that we find useful in determining the taxable nature of personal services in a cireumstance such as the one before us today. The test inquires whether the services and product are separable. If they are separable, then the service is not taxable. If the service and product are inseparable, then the services are taxable as a part of the purchase price. Houghton Mifflin Co. v. State Tax Comm'n, 373 Mass. 772, 370 N.E.2d 441, 442 (1977) (concluding that the purchase of galley proofs was taxable, even though services comprised a significant portion of the transaction); Info. Servs., Inc. v. Comm'n of Revenue, 48 Mass.App.Ct. 197, 718 N.E.2d 1256, 1258 (1999) (concluding that the optional services associated with microfilming such as shredding and alphabetizing were not taxable because they were separable from the ultimate sale of the microfilmed materials). Similarly, without referencing the Massachusetts test, but based on the same rationale, the South Carolina Supreme Court has concluded that gift wrapping services are not part of the sale as the services are separable from the purchase. Meyers Arnold, Inc. v. South Carolina Tax Comm'n, 285 S.C. 303, 328 S.E.2d 920, 922-23 (1985), see also Sharp v. Park 'N Fly of Tex., Inc., 969 S.W.2d 572, 575 (Tex.Ct.App.1998) (holding that the cost of a shuttle service provided by an off-site parking lot business near an airport from the lot to the terminal was not exempt from sales tax because the transportation was incidental to the actual business of supplying parking places).

Here, we conclude that the alteration services were separable from the sale of the garment. Indeed, even the Department agreed that it would not tax the alteration services unless they were contracted for at the time of the initial purchase. If the customer left the store and came back for a later fitting, then the Department would not tax the services. What is clear, then, is that the customer is buying the garment, and the alteration services are separable from the transaction. Whether contemplated at the time of the sale, or some time thereafter, the services themselves would remain exactly the same. The alteration services were separable from the purchase transaction and, as such, were not independently taxable.

IIL

Accordingly, we conclude that the sales tax statute does not permit taxation on this particular services.³ We reverse the judgment of the court of appeals and remand the case for proceedings consistent with this opinion.

Chief Justice MULLARKEY dissents, and Justice HOBBS and Justice MARTINEZ join in the dissent.

1 . He also found significant the fact that Auer's gave customers full credit for returned merchandise, including a refund for alteration charges.

2 . We granted certiorari on the following issue: Whether the court of appeals erred in upholding the imposition of a sales tax on alterations to a ready-to-wear garment when the alterations are ordered at the time of purchase.

3 . Having so concluded, we need not reach any issue raised under the Uniform Commercial Code.