Alamo Hardwoods, Inc. v. Bullock

614 S.W.2d 600, 1981 Tex. App. LEXIS 3427
Court of Appeals of Texas·Decided March 24, 1981·No. No. 8810·Published·Cited by 3 cases

Opinion

BLEIL, Justice.

Alamo Hardwoods, Inc. sued Bob Bullock, Comptroller of Public Accounts, to recover sales tax, penalty and interest, paid under protest. A take nothing judgment was entered after a trial to the court.

The broad issue on appeal is whether charges for lumber millwork operations performed by Alamo Hardwoods are taxable under the “Limited Sales, Excise and Use Tux Act.” Tex.Tax.-Gen.Ann. art. 20.01 (1969).

Alamo Hardwoods, appellant, is in the business of selling lumber and performing custom millwork on lumber to specifications of its customers. The Comptroller of Public Accounts, appellee, caused an audit to be performed concerning the millwork operations of appellant and assessed additional state and local sales tax for the period beginning October 1, 1971, and ending September 30, 1975. The Comptroller concluded that $6,148.82 tax should have been collected on milling charges performed by Alamo Hardwoods.

Appellant purchased lumber in unfinished and finished form. Some of the lumber was sold without making any changes to it while other was sold with only slight changes made, such as cutting it to a given length or width. Sometimes charges were made for this service, but on occasion Alamo Hardwoods did not charge for courtesy services such as cutting off the ends of boards. On other lumber orders more extensive milling operations were performed. These procedures included the making of grooves or dadoes to decorate wood surfaces, the cutting of rabbets for joints, the cutting of shiplaps, tongue and grooves, the making of V-shaped joints and the alteration of wood by the making of curves or decorative cuts and designs. Appellant’s millwork capabilities range from the making of custom molding and'paneling to planing and resawing to desired sizes, to ripping wood for glue joints, and to the lamination of countertops and other lumber in sizes desired by customers. The customers were billed a mill charge for the operations. In some instances mill operations were performed on material supplied by customers. They, too, were billed a mill charge.

Witnesses for both sides of this controversy testified concerning the types of equipment used in performing milling operations performed by Alamo Hardwoods. Testimony also covered the uses of the lumber products after the millwork. These uses included decorative and functional molding, drawer sides, flooring, siding, roof decking, ceiling molding, sheet mold, base mold and decorative work in cabinets, picture frames, or on the surface of large pieces of lumber.

Appellant collected sales tax from their customers on the sales price of the lumber, but did not collect sales tax on charges for the milling operations performed. The Comptroller assessed sales tax on these charges for milling operations. It is the [602] taxability of these items which is in issue in this cause.

Upon request of the appellant, the trial court made the following fact findings:

“I.
That State and Local Sales tax, penalty and interest were assessed against Plaintiff by the Comptroller of Public Accounts as the result of Audit No. 47761.
II.
That Plaintiff exhausted its administrative remedies, paid Seven Thousand Two Hundred Seventy-Three and 41/100 Dollars ($7,273.41), filed a claim for refund and, after denial of such claim, timely filed this action to recover the taxes.
III.
That State and Local Sales tax, penalty and interest assessed on millwork charges was Six Thousand One Hundred Forty-Eight and 82/100 Dollars ($6,148.82) which is the amount in issue in this cause, of which amount Four Thousand Nine Hundred Nineteen and 15/100 Dollars ($4,919.15) is State Sales tax, penalty and interest, and One Thousand Two Hundred Twenty-Nine and 67/100 Dollars ($1,229.67) is Local Sales tax, penalty and interest.
IV.
That during the audit period Plaintiff performed custom millwork operations on lumber sold by Plaintiff and on lumber supplied by Plaintiff’s customers.
V.
That during the audit period the mill-work operations in issue were performed to customer specification.
VI.
That the millwork operations in issue are first and/or subsequent production operations in the creation of an item of tangible personal property for ultimate consumption.
VII.
That the millwork operations in issue are processing and/or fabricating type operations as defined by Article 20.-01(E)(2)(a) and Article 20.01(K)(2)(e).
VIII.
That first acts of production and subsequent operations in the manufacture, creation or production of items of tangible personal property for ultimate consumption are taxable labor and services as defined by Article 20.01(D)(1)(b), Article 20.01(L)(l)(b) and Article 20.01(LX2)(a).”

The court concluded that charges for mill-work operations by Alamo Hardwoods ought to be included in the total sales price on which state and local sales tax is due, that the Comptroller of Public Accounts had authority to implement limited sales, excise and use tax regulations No. 95-0.49 and No. 95-0.16 and that Alamo Hardwoods is not entitled to recover the taxes, penalty and interest previously paid to the State of Texas.

The appellant assigns seventeen points of error on which it bases its two-fold argument on appeal. Initially, appellant contends that the mill operations performed by Alamo Hardwoods fit into the remodeling exclusion and are non-taxable. Appellant also says that the court erred in determining that the operations in question were taxable as production or processing operations.

In matters involving a particular statute, that statute itself must be examined. The “Limited Sales, Excise and Use Tax Act”, Tex.Tax.-Gen.Ann. art. 20.02 (1971), simply imposes a limited sales tax on the receipts from the sale at retail of all taxable items within this State. In Article 20.01, certain definitions appear which are [603] relevant to the case.1 The contentions of both parties to this appeal are grounded on these statutory provisions and definitions.

Alamo Hardwoods argues that the definitions and their exclusions as found in the Act are to be given effect. Gifford-Hill and Company v. State, 442 S.W.2d 320 (Tex.1969). It properly argues that Article 20.02 must be read in light of the definitions, and that in the definitions of “Receipts” and “Sales Price” appears an identical exclusion of, “The amount charged for labor or services rendered in installing, applying, remodeling, or repairing the tangible personal property sold.”

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Alamo Hardwoods, Inc. v. Bullock, 614 S.W.2d 600, 1981 Tex. App. LEXIS 3427 (Tex. Ct. App. 1981).

614 S.W.2d 600 (Alamo Hardwoods, Inc. v. Bullock) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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