Advo-Systems, Inc v. Department of Treasury

465 N.W.2d 349, 186 Mich. App. 419

• Court: Michigan Court of Appeals
• Decided: December 5, 1990
• Docket: Docket 120519
• Status: Published

Opinions

Murphy, J.

Petitioner appeals from a judgment of the Michigan Tax Tribunal affirming a use tax assessment against petitioner in the amount of $153,525 plus penalties and interest. We affirm.

Petitioner is a foreign corporation, with its principal executive offices located in Connecticut, which operates a nationwide direct mail business from nineteen production facilities, including a branch facility located in Livonia, Michigan. Petitioner mails advertising material for national and local businesses by third-class bulk mail using a concept known as a "Marriage Mail” package. Under this method, individual pieces of advertising material are combined loosely inside a larger "wrap” piece, which also typically contains advertising. Petitioner’s identification and the date of publication of the particular piece are printed in the margin. Additionally at the top of the wrap piece appears a masthead of sorts identifying the piece by its name of "Mailbox Values.” In short, Mailbox Values is a collection of the type of advertising supplements one might find in the Sunday newspaper contained under the outside wrap piece.

Mailbox Values is accompanied by a mailing card, apparently required by the post office. On the back side of the card appears additional advertísing. On the front, the return address, the bulk-rate postage paid notice, and a space to affix a mailing label are printed. In the right-hand portion of the front side, an announcement and photograph of a missing child appear, along with a phone number for the recipient to contact if they have any information relating to that child.

Petitioner’s customers use its service to save the postage costs of mailing separately their advertisements. The entire collection constitutes one mailing piece and, thus, is subject to one postage charge. Petitioner does not print the individual advertising pieces contained within Mailbox Values. Instead, it either utilizes preprinted advertising materials supplied by a customer or arranges for an independent printer to print the customer’s advertising piece and deliver the finished product to petitioner for inclusion in Mailbox Values.

Mailbox Values is distributed free of charge on a weekly basis to approximately three million residential mail customers in Michigan and forty-five million households nationwide. Presumably, each week’s edition varies in the content of retailers’ advertising materials.

At issue in this case is the use tax which respondent claims is due on the printed materials provided to petitioner for inclusion in its mailer on which no sales or use tax was paid. Petitioner claims that it is exempt from the use tax on these materials under MCL 205.94(n); MSA 7.555(4)(n), which exempts newspapers and other periodicals and materials consumed in producing such newspapers and periodicals from liability for the use tax. The amount of tax due, along with penalty and interest, is not in dispute, if we determine that petitioner owes the tax. Rather, petitioner and respondent disagree over whether petitioner is subject to the tax. The Tax Tribunal ruled in respondent’s favor. The hearing officer concluded "that a 'periodical’ is intended to refer to a publication more akin to a magazine or a publication having articles or literary content and being a part of a serial or series and probably has some subscribers rather than the AD VO 'Marriage Mail’ advertising package.” The Tax Tribunal agreed, finding that the Legislature’s use of the word periodical in two of the four use tax exemptions indicated an intent that the term have a consistent meaning throughout § 4(n). "While we agree that a periodical need not necessarily contain a series of articles, we conclude that it is something more than a loose collection of unsolicited advertisements delivered to households by direct mail.” On appeal, petitioner argues that Mailbox Values qualifies as a "periodical” within the scope of the exemption set forth in § 4(n), which provides:

A newspaper or periodical classified under federal postal laws and regulations effective September 1, 1985 as second class mail matter or as a controlled circulation publication or qualified to accept legal notices for publication in this state, as defined by law, or any other newspaper or periodical of general circulation, established at least 2 years, and published at least once a week, and a copyrighted motion picture film. Tangible personal property used or consumed, and not becoming a component part of a newspaper or periodical, except that portion or percentage of tangible personal property used or consumed in producing an advertising supplement that becomes a component part of a newspaper or periodical, and a copyrighted motion picture film is subject to tax. For purposes of this subdivision, tangible personal property that becomes a component part of a newspaper or periodical, and thereby not subject to tax, shall include an advertising supplement inserted into and circulated with a newspaper or periodical which is otherwise exempt from tax under this subdivision, if the advertising supplement is delivered directly to the newspaper or periodical by a person other than the advertiser, or the advertising supplement is printed by the newspaper or periodical.

The statute exempts four classifications of publications, as well as tangible personal property used or consumed in producing an advertising supplement to such newspaper or periodical. Petitioner does not claim that it comes under the first three provisions: as a periodical classified as second-class mail matter, as a controlled circulation publication, or as a publication qualified to accept legal notices. Rather, petitioner maintains that it constitutes "any other newspaper or periodical of general circulation, established at least 2 years, and published at least once a week.” Respondent admits that Mailbox Values has been established at least two years and is published at least once a week, but argues that it is not a "periodical of general circulation.” We agree.

Tax exemptions are the antithesis of tax equality. Therefore, they are strictly construed against the taxpayer. Town & Country Dodge, Inc v Dep’t of Treasury, 420 Mich 226, 243; 362 NW2d 618 (1984); Ladies Literary Club v Grand Rapids, 409 Mich 748, 753-754; 298 NW2d 422 (1980). Exemption statutes are, nevertheless, interpreted according to ordinary rules of statutory construction. Ass’n of Little Friends, Inc v Escanaba, 138 Mich App 302, 307; 360 NW2d 602 (1984).

Common sense should be applied when construing a statute. Panich v Iron Wood Products Corp, 179 Mich App 136, 141; 445 NW2d 795 (1989). When a statute is unambiguous, it must be applied as written. Achtenberg v East Lansing, 421 Mich 765, 770; 364 NW2d 277 (1985). To that end, words and phrases in a statute are construed and understood according to their common and approved usage, unless they are otherwise defined in a statute or the construction is inconsistent with the manifest intent of the Legislature. MCL 8.3a; MSA 2.212(1); Town & Country, supra, 241-242.

The use of dictionary definitions is appropriate in interpreting undefined statutory terms. Swift v Kent Co, 171 Mich App 390, 393; 429 NW2d 605 (1988). However, recourse to the dictionary is unnecessary when the legislative intent may be readily discerned from reading the statute itself. Renown Stove Co v Unemployment Compensation Comm, 328 Mich 436, 440; 44 NW2d 1 (1950). Under petitioner’s reasoning, we must accept, without question, the dictionary definition to be the plain and ordinary meaning of the term "periodical” as used in § 4(n). The Random House College Dictionary (rev ed, 1984), p 987, defines "periodical” as follows:

n. 1. a magazine or other publication that is issued at regularly recurring intervals. —adj. 2. published at régularly recurring intervals. 3. of or pertaining to such publications. 4. periodic.

Additionally, Random House, supra at 1069, defines "publication” and "publish” as follows:

publication . . . n. 1. the act of publishing. 2. the act of bringing to public notice. 3. the state or fact of being published. 4. something that is published, esp. a periodical. . . .

publish . . . v.t. 1. to issue (printed or otherwise reproduced textual or graphic material) for sale or distribution to the public. 2. to issue publicly the work of (an author, artist, etc.). 3. to announce formally or officially. 4. to make publicly or generally known. —v.i. 5. to engage in the publishing to textual or graphic material. 6. (of an author) to have work published.

After reviewing these definitions, we conclude that adoption of the dictionary definition of periodical unnecessarily broadens the scope of the exemption granted by the Legislature. Dictionary definitions, while instructive, are not conclusive authority regarding the meaning of statutory terms; they are merely useful tools which may be used as guidance. Under the established rules of statutory construction, the "plain and ordinary” meaning of a statutory term controls. By its very nature, a dictionary definition, which seeks to provide the most complete description possible of a particular word’s meaning, may be broader in scope than the "plain and ordinary” meaning of the word as it is commonly used and understood.

" 'It is only as custom and usage and agreement attach a particular meaning to a particular word that it has any significance in relation to either a tangible or an intangible object.’ ” Satterley v City of Flint, 373 Mich 102, 110; 128 NW2d 508 (1964), quoting 2 Sutherland’s Statutory Construction, §4502, pp 316, 317. The plain-meaning rule of statutory construction presumes that words in a statute had the . same meaning for those who authored it as it has for those who read it. People v Gilbert, 414 Mich 191, 199; 324 NW2d 834 (1982). As it is commonly used and understood, the term "periodical” has a somewhat narrower meaning than the dictionary definition. In reality, as the term is commonly used and understood, a periodical is synonymous with a publication similar to a magazine. We may assume that the Legislature also attached this same connotation to the word it chose or at least was aware that it would have this meaning for most people reading the statute. Moreover, we recognize that administrative interpretations of a statute by the agency responsible for the statute’s execution are to be accorded deference and reviewed with respectful consideration. Oakland Schools Bd of Ed v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73 (1977); Odette v Liquor Control Comm, 171 Mich App 137, 142; 429 NW2d 814 (1988). Thus, we agree with the Tax Tribunal that the plain and ordinary meaning of the term periodical may be more appropriately stated as a magazine or similar publication that is issued at regularly recurring intervals but which, although similar in character, does not qualify as second-class mail under the very specific requirements of 39 CFR 3001 (1989). We conclude that Mailbox Values, which essentially is nothing more than a loose-leaf collection of advertising materials, does not fall under this definition.¹

Moreover, we conclude that adoption of a broad definition of the term periodical results in a construction of MCL 205.94(h); MSA 7.555(4)(n) that is contrary to legislative intent. Under the exemption granted in § 4(n), the individual advertising materials collected in Mailbox Values would be tax exempt when they are actually printed on the pages of a qualifying newspaper or periodical or are inserted as supplements of such a publication. However, advertising materials remain taxable when distributed in any manner other than those exempted. In other words, if the individual advertisers of any publication, including petitioner, choose to distribute these same advertisements at their place of business, by hand delivery, or by other than second-class mail, their advertising materials are subject to the use tax. See House Legislative Analysis, HB 5291, January 23, 1986.²

The underlying purpose for exempting certain types of publications from the burden of sales and use taxes is to protect and promote the exercise of a free press as guaranteed under the First Amendment. This goal is furthered by including supplemental advertising materials, from which the exempt publications derive income, within the scope of this exemption. See Sears, Roebuck & Co v State Tax Comm, 370 Mass 127, 130-131; 345 NE2d 893 (1976). Common sense leads us to conclude that allowing petitioner to attain tax exempt status by simply joining otherwise taxable materials under a single cover and mailing them out on a weekly basis does nothing to further the legislative purpose behind the use tax exemption set forth in MCL 205.94(n); MSA 7.555(4).

Affirmed.

Michael J. Kelly, J., concurred.

1 Petitioner relies on a Minnesota case, United Hardware Distributing Co v Comm’r of Revenue, 284 NW2d 820 (Minn, 1979), to support its argument that the Tribunal’s construction imposes a content-based limitation on the exemption that is not expressed in the statute. In that case, the Minnesota Supreme Court held that reading a request that a publication contain some news, information, articles, or commentary of interest to the public into a use-tax exemption similar to § 4(n) was an unwarranted limitation of the exemption which was not justified by the statutory language. Id., 822. However, we distinguish United Hardware from the present case because the statute there at issue exempted "any publication regularly issued at average intervals not exceeding three months.” Id., 821, n 1. (Emphasis supplied.) The court rejected the respondent’s argument that the "normal and common meaning” of a publication is a periodical. Id., 822. Clearly, the term "publication” encompasses a broader concept than "periodical.”

Moreover, courts in other jurisdictions have reached the opposite result. See G & B Publishing Co v Dep’t of Taxation & Finance, 57 AD 18, 20-21; 392 NYS2d 938 (1977); Shoppers Guide Publishing Co, Inc v Woods, 547 SW2d 561, 563-564 (Tenn, 1977); Green v Home News Publishing Co, Inc, 90 So 2d 295, 296 (Fla, 1956). See also 25 ALR4th 750.

2 The bills would grant tax exempt status to those supplements which were printed by a newspaper or delivered directly to the newspaper from the printer. Supplements distributed in another manner, whether in the advertiser’s store or mailed as other than second class mail, would continue to be taxable. However, the bills would not prevent an advertiser from having all the copies of a supplement delivered to the newspaper and then picking up the extra copies for another method of distribution after the tax exemption has been obtained. [Emphasis supplied.]