Ballard's Farm Sausage, Inc. v. Dailey

246 S.E.2d 265, 162 W. Va. 10, 1978 W. Va. LEXIS 322

• Court: West Virginia Supreme Court
• Decided: July 11, 1978
• Docket: 14025, 14026
• Status: Published

Opinions

Neely, Justice:

The issue presented in these cases is the proper Business and Occupation Tax rate applicable to the production of sausage and salads made by the taxpayers, ap-pellees, Ballard’s Farm Sausage, Inc. and West Virginia Sausage Company. Until April 1, 1971 both taxpayers reported under the manufacturing classification but have since reported under wholesaling. The State Tax Commissioner assessed deficiencies due to the changes in reporting. The taxpayers petitioned for reassessment; hearings before the State Tax Commissioner were held; administrative decisions of the Tax Commissioner were issued affirming the assessments; both taxpayers appealed to circuit court (Ballard’s Farm Sausage to Wayne County Circuit Court and West Virginia Sausage Company to Mason County Circuit Court); and both circuit courts reversed the decision of the Tax Commissioner. We affirm.

The controversy centers around the proper construction of W.Va. Code, ll-13-2b [1974] which establishes the manufacturing rate classification. As originally enacted in 1935, Code, ll-13-2b applied “Upon every person engaging or continuing within this State in the business of manufacturing, compounding or preparing for sale, profit, or commercial use ...” In 1951, the Legislature added a proviso; “However, the dressing and processing of poultry and turkeys by a person, firm or corporation ... shall not be considered as manufacturing or compounding, but the sale of these products on a wholesale basis shall be subject to ..the wholesaling rate classification. Acts of the Leg., Reg. Sess., 1951, C. 179. In 1971, the Legislature amended Code, ll-13-2b again, effective April 1, 1971, substituting “food” for “poultry and turkeys.” Acts of the Leg., Reg. Sess., 1971, C. 169. The statute currently reads as follows:

Upon every person engaging or continuing within this State in the business of manufacturing, compounding or preparing for sale, profit, or commercial use, either directly or through the activity of others in whole or part, any article or articles, substance or substances, commodity or commodities, .. the amount of the tax to be equal to the value of the article,... multiplied by a rate of eighty-eight one hundredths of one percent. ... However, the dressing and processing of food by a person, firm or corporation, which food is to be sold on a wholesale basis by such person, firm or corporation shall not be considered as manufacturing or compounding, but the sale of these products on a wholesale basis shall be subject to the same tax as is imposed on the business of selling at wholesale as provided in section two-c [§ ll-13-2c].

Taxpayers contend they fall within the “dressing and processing” proviso and can report under the wholesaling rate while the Tax Commissioner contends that taxpayers’ operations are manufacturing. In 1974, the Tax Commissioner promulgated regulations under W.Va. Code, ll-13-2b [1974] which provide that:

Persons who dress and process food which is to be sold on a wholesale basis by such person shall not be considered as manufacturing or compounding for the purposes of the business and occupation tax law. The sale of these food products on a wholesale basis shall be subject to the tax imposed under the wholesale classification only.

The term “dressing and processing” shall mean slaughtering, butchering and breaking down of poultry, meat, fish, fowl and other foods into composite parts but does not include the preparation of these parts into new or different products or substances. To illustrate: slaughtering and butchering swine into pork chops, pork roast, pork liver, pork brains, etc. will qualify as dressing and processing of food. If composite parts of swine are mixed, ground or cooked and have other ingredients, such as condiments, added thereto, to make a new or different product, such as pork sausage, such procedure is more than merely dressing and processing of food and the income therefrom is subject to the manufacturing classification. Therefore, preparation of luncheon meats, such as, bologna, salami, ham salad spread, liverwurst, etc., must be reported under the manufacturing classification when sold by the person who prepared the same.

Any food item which is dressed and processed and is sold at retail is treated as a manufactured product, and the income therefrom must be reported under the retail classification and the manufacturing classification. Persons who dress and process food are relieved from reporting the sale of such food under the manufacturing classification only if such food is sold on a wholesale basis.

W. Va. Business and Occupation Tax Regulations § 1.2b ¶ 76-506(D) (1974). [emphasis added]

We find the Commissioner’s regulation to be inconsistent with the statute. The Commissioner argues that taxpayers are manufacturing, but we find that even assuming that they are, if they are also dressing and processing food to be sold at wholesale, they come under the wholesaling proviso. If the dressing and processing' of food were not also manufacturing the proviso would not be necessary. The proper inquiry is whether the appel-lees’ operations in the preparation of sausage and salads are “dressing and processing of food.” We find that they are.

The Commissioner’s error has been that he has considered “dressing and processing” and “manufacturing” mutually exclusive. We need not resort to dictionaries or complex semantics to recognize that many operations are styled in common speech as either “manufacturing” or “processing” interchangeably. Obviously, the more capital intensive and industrial a transformation operation is, the more likely it is to be called “manufacturing,” while the more labor intensive or pastoral a transformation operation is, the more likely it is to be called “processing.” Thus, one almost always speaks of the “manufacturing” of steel while conversely one almost always speaks of the “processing” of cheese. In normal speech, however, many transformation operations, such as converting trees into usable lumber, are referred to interchangeably as either “processing” or “manufacturing.” Thus, while at the extreme ends of the industrial-agricultural spectrum either one or the other word is almost uniformly used to describe the particular operation in question, in the middle there are numerous operations which can be considered both.¹

The making of plastic from soybeans is clearly not the “dressing and processing of food” but the pasteurization of milk clearly is. It is impossible to articulate at what point an operation becomes more than dressing and processing. As stipulated by counsel, the Tax Commissioner treats the perparation of turkeys injected with butter and the cutting of chickens into parts which are dipped in batter and frozen as dressing and processing. We fail to see any reasons to distinguish the making of sausage and salads from those similar operations involving poultry.²

Given the impossible task of clearly distinguishing the “dressing and processing of food” from the “manufacturing” of food, we look to the time-honored maxim that taxing statutes will be strictly construed against the State and in favor of the taxpayer,³ Baton Coal Company v. Battle, 151 W. Va. 519, 153 S.E.2d 522 (1967); State ex. rel. Battle v. B. & O. R.R. Co., 149 W. Va. 810, 143 S.E.2d 331 (1965); State v. Carman, 145 W. Va. 635, 116 S.E.2d 265 (1960), and find that appellees’ operations are within the dressing and processing proviso. Simply stated, if a taxpayer begins with what is usually considered a food substance and ends with a food product, he is dressing and processing food for the purposes of W.Va. Code, 11-13-2b [1974].

Affirmed.

1 The following cases attempting to make a distinction between “processing” vis a vis “manufacturing” demonstrate the inherently result-oriented nature of legal definition, as well as the lack of any but an artificial distinction between the two:

East Texas Lines v. Frozen Food Exp., 351 U.S. 49 (1955) (Killing and dressing chickens is “processing,” not “manufacturing” under the Interstate Commerce Act); Corn Products Refining Co. v. Federal Trade Commission, 324 U.S. 726 (1945) (Conversion of dextrose into candy is “processing” under the Clayton Act); Cochrane v. Deener, 94 U.S. 780 (1876) (Certain treatment of flour is a “process” that can be patented); Mitchell v. Oregon Frozen Food Company, 264 F.2d 599 (9th Cir. 1958) (under Fair Labor Standards Act no “processing” takes place until a change takes place); Bowie v. Gonzales, 117 F.2d 11 (1st Cir. 1947) (Grinding and preparing sugar cane is the “processing,” not the production of, an agricultural product); United States v. Bodine Produce Co., 206 F. Supp. 201 (D. Ariz. 1962) (dicta) (Changing apples into applesauce or pork into sausage is “processing” under the Federal Food Act); Prentice v. City of Richmond, 197 Va. 724, 90 S.E.2d 839 (1956) (Killing, cleaning and chilling chickens is not “manufacturing” exempt from license tax on merchants); Commissioner of Corporations and Taxation v. Assessors of Boston, 321 Mass. 90, 71 N.E.2d 874 (1947) (Production of sausage is “manufacturing” and exempt from municipal tax on machinery); Commonwealth v. Weiland Packing Co., 292 Pa. 447, 141 A. 148 (1928) (Producer of pickled and smoked meats not a “manufacturer” exempt from merchants’ license tax.)

2 Taxpayers’ sausage operations consist of purchasing, slaughtering, skinning, viscerating, boning, cooling and butchering swine. The meat used in sausage is then ground and blended with spices to be packaged.

The preparation of salads is simple: the ingredients are purchased, prepared, mixed and packaged.

3 The exception to the general rule of strict construction against tax imposition where the taxpayer is claiming an exemption from taxation, Owens-Illinois Glass Co. v. Battle, 151 W. Va. 655, 154 S.E.2d 854 (1967) does not apply here since the taxpayers are not claiming an exemption but are merely contesting the rate classification.