Blackmon v. Atlantic Steel Co.

203 S.E.2d 710, 130 Ga. App. 492, 1973 Ga. App. LEXIS 1353

• Court: Court of Appeals of Georgia
• Decided: December 5, 1973
• Docket: 48168
• Status: Published

Opinions

Eberhardt, Presiding Judge.

John A. Blackmon, as State Revenue Commissioner, appellant, on July 27, 1971, made an assessment for sales and use tax deficiencies against Atlantic Steel Company, appellee, for the taxable period from July, 1967, through December 31, 1970, for tax, penalty and interest. The taxpayer entered its appeal to the Superior Court of Fulton County where, upon stipulated facts, the case was submitted to the trial judge for decision. The trial judge decided in favor of the taxpayer and the commissioner appealed. The assessment of the commissioner was based upon his finding that certain molds, stools, and electrodes, used by the taxpayer were taxable. The stipulated facts, in brief, follow.

Atlantic Steel is engaged in the business of making and selling steel and steel products. It makes steel in electric-arc furnaces. Charge materials, consisting of scrap metal and other ingredients, are placed into the melting vessels, and a powerful charge of electricity is transmitted through graphite (crystallized carbon) electrodes in such a manner that an electric-arc is formed between the electrodes and the scrap metal in the vessel. The arc creates tremendous- heat, causing the scrap metal and other ingredients in the vessel to turn into molten metal. Undesirable elements are drawn off the molten metal and other elements are added as needed to produce the desired grade of steel. The molten metal is then poured into formed receptacles, called "molds” and "stools,” where the metal hardens into the form of a steel ingot. After the steel ingot is hardened in the mold, the ingot is punched out of the mold for further processing. The carbon content of steel produced by taxpayer, depending on the customer’s particular order and other factors relating to the process itself, varies from .05 percent to an excess of 1 percent, but less than 2 percent of the total metal produced in the melting vessel. Each process with respect to one vessel of raw materials produces approximately 85 tons of steel. Metal containing an excess of 2 percent carbon is generally designated as iron.

Electrodes are cylindrical in shape, approximately five feet in length, with a threaded tip at one end and a threaded hole at the other, and, except as hereinafter stated, are used to conduct electricity. Several electrodes fitted together are placed in and attached to an electrode holder, or clamp, which permits continuous lowering of the electrodes as they are consumed. Three series of electrodes are employed by taxpayer for each operating process with respect to a vessel. Electrodes weigh approximately 13,000 pounds each and are composed solely of graphite (crystallized carbon) which serves as a conductor of electricity.

In Atlantic Steel’s process, the melting vessel is filled with various types of scrap metal and placed under the electrode holder. Prior to the melting process, the taxpayer estimates the carbon content of scrap metal employed, and includes in the charge materials placed in the vessel metals with high carbon content, including cracked molds and stools and retrieved but unsalvageable broken electrodes, to bring the estimated carbon content of the mixture within the desired range. The tips of the electrodes are lowered to within four to six inches of the surface of the scrap metal and electricity is discharged through the electrodes so that an arc forms between the tip of the electrode and the scrap metal. The heat thus produced melts the scrap metal.

After the charge is melted, the resulting molten bath is tested for carbon content. If excess carbon is detected, oxygen is blown into the bath to remove the excess carbon by forming carbon dioxide gas. If a carbon deficiency is determined, taxpayer adds carbon, using coke if the amount of carbon needed is small, and if the amount of carbon to be added is large, the electrodes are dipped into the bath, this being the only instance where the electrodes are intentionally dipped into the bath. Taxpayer’s consumption of electrodes by "dipping” represents approximately six percent of its total consumption of electrodes, which causes the ends of the electrodes to melt into the molten metal and increases the carbon content of the molten metal.

In the course of an operation, a piece of electrode may and does break off and fall into the bath. A large piece which has broken is retrieved by a clamp. A small piece is allowed to remain in the bath to melt therein. If the piece retrieved is of salvageable size, it is rethreaded and employed again as an electrode. If the piece retrieved is not salvageable, it is used as a source of carbon by adding it to the charge material. The consumption of irretrievable or retrieved but unsalvageable broken electrodes as part of the bath is approximately nine to ten percent of taxpayer’s consumption of electrodes, and this is done in order to bring the estimated carbon content of the molten metal within the desired range.

Consumption of electrodes results partly from breakage, partly from dipping in the bath, from oxidation (combining with oxygen) or volatilization (changing solid carbon to carbon gas) occurring while the electrode is employed in conducting electricity. Taxpayer estimates that 42 percent of the carbon in the electrodes, after volatilizing into carbon gas, enters temporarily into the bath before re-emerging and being dissipated into the atmosphere. The entry of carbon gas into the bath is caused by the force of the flow of electricity drawing the carbon gas into the bath. The impregnation of carbon into the molten metal is an integral part of the electrochemical process that takes place in the electric furnaces and is indispensable to the steel making operation.

When electrodes are purchased by Atlantic Steel, it is planned and intended by Atlantic Steel that they will be used in the manner described above. If Atlantic Steel did not use electrodes to add carbon to the molten steel in the electric furnaces, it would have to purchase and use other materials for that purpose.

The useful life of an electrode, as an electrode, is approximately 48 hours. During the course of that life, the electrode will be used during approximately 15 operations producing 15 vessels of steel of approximately 85 tons each.

Molds and stools are composed of cast pig iron. A mold is an oblong shaped, hollow form open at both ends. It rests on a stool, which serves the function of capping one end. A stool is a piece of pig iron cast in such shape that it can be fitted onto one end of the mold.

The bath of molten metal is poured from the melting vessel into a ladle and then poured into molds which are fitted with stools. There it is allowed to solidify. Once the steel has solidified, it is punched from the mold for further processing. One vessel of steel fills approximately 16 molds.

A mold or stool may and does crack during the course of its use by taxpayer due to the stress incurred in use. A cracked mold or stool is no longer usable as such and when, but only when, a mold or stool does crack, taxpayer employs it as raw material in the steel making process.

The average useful life of a mold or stool as such is approximately two months. During a two-month period taxpayer produces approximately 780 vessels of steel consisting of approximately 85 tons each.

Taxpayer used molds and stools as raw materials, as described above, during the periods included in the assessment, except that during the calendar year 1970 approximately 28 percent of the cracked molds and stools were sold by it as pig iron.

Atlantic Steel purchases molds and stools with the intention of using them as molds and stools until they are no longer usable as such. It is also taxpayer’s intention, when purchasing the molds and stools, to use them as raw materials in the electric furnaces operated by it when they are no longer usable for their original purposes. If the molds and stools were not used as scrap materials after they become unusable as molds and stools, taxpayer would have to purchase other raw materials.

In the present state of the electric arc steel making science, pig iron is, in every sense of the word, the best material for making receptacles for molding molten steel. There is no existing substitute. Taxpayer would use molds and stools made of pig iron even if a secondary use of pig iron as a raw material was not available to it.

Taxpayer purchases electrodes with the intent that such electrodes will be used in the manner set out above. If it did not use the electrodes to add carbon to the bath, as noted above, taxpayer would have to purchase and use other materials to add such carbon.

In the present state of the electric arc steel making science, graphite is, in every sense of the word, the best material for conducting electricity to form the electric arc. There is no existing substitute. Taxpayer would use graphite electrodes even if they could not be used to provide carbon to the bath through dipping and breakage, or otherwise.

Atlantic Steel claimed an exemption from liability based upon Section 3 (c) 2 of the Georgia Retailers’ and Consumers’ Sales and Use Tax Act (Ga. L. 1951, p. 360; Code Ann. § 92-3403aC (2)).

The portion of the tax statute (Georgia Retailers and Consumers Sales & Use Tax Act, Ga. L. 1951, p. 360 et seq., as amended), which sets forth certain exemptions, being Section 3 (c) 2 of the Act as amended (Code Ann. § 92-3403aC (2)), reads as follows: "The terms 'sale at retail,’ 'use,’ 'storage,’ and 'consumption’ shall not include the sale, use, storage or consumption of industrial materials for future processing, manufacture or conversion into articles of tangible personal property for resale where such industrial materials become a component part of the finished product nor shall such terms include industrial materials, other than machinery and machinery repair parts, that are coated upon or impregnated into the product at any stage of its processing, manufacture or conversion, nor shall such terms include materials, containers, labels, sacks or bags used for packaging tangible personal property for shipment or sale. To qualify for the packaging exemption, such items shall be used solely for packaging and shall not be purchased for reuse: Provided, however, the term 'industrial materials’ shall not include natural or artificial gas, oil, gasoline, electricity, solid fuel, ice or other materials used for heat, light, power or refrigeration in any phase of the manufacturing, processing or converting process.” The taxpayer contends that the molds, stools and electrodes are exempt as industrial materials under this portion of the statute.

The exemption applies only to "industrial material.” State of Ga. v. Cherokee Brick &c. Co., 89 Ga. App. 235 (79 SE2d 322); Blackmon v. J. D. Jewell, Inc., 126 Ga. App. 679 (191 SE2d 621). We will consider first the questions relating to the molds and stools. These items were bought as molds and stools, not as scrap iron. That the purchaser, at the time of purchase, intended to use these molds and stools as an industrial material when they became unusable for the purpose originally purchased; that is, when because of breakage they became scrap iron instead of molds and stools does not show molds and stools were industrial materials. We are not at this point concerned with a situation where tangible personal property is bought and used partly for two purposes, one of which is as an exempt, industrial material. See in this connection, Michigan Allied Dairy Assn. v. State Board, 302 Mich. 643 (5 NW2d 516); State v. Southern Kraft Corp., 243 Ala. 223 (8 S2d 886); State v. U. S. Steel Corp., 281 Ala. 553 (206 S2d 358); Morley v. Brown & Root, Inc., 219 Ark. 82 (239 SW2d 1012); and Dain Manufacturing Co. v. Iowa State Tax Commr., 237 Iowa 531 (22 NW2d 786).

The stools and molds involved in the present case were not industrial materials when purchased, neither were they used as industrial materials in the state or condition in which they were first purchased, nor were they, as a part of the manufacturing process, converted by the taxpayer into industrial materials from the state in which originally purchased. It is only when the molds and stools became broken and unfit for use as molds and stools that they became scrap iron, and industrial material, and a part of the ultimate product manufactured by the taxpayer. If the argument of the taxpayer has validity, then the tax ordinarily paid for the purchase of expensive topis bought at a higher price might be avoided by using the broken tools as "scrap iron” in the process of manufacturing steel.

We hold, therefore, that the trial court erred in its ruling that the sales tax was not applicable to the molds and stools. See Union Portland Cement Co. v. State Tax Commission, 110 Utah 135 (170 P2d 164), which, while not completely on all fours with the present case, its rationale does apply to what has been said above.

The question relating to the electrodes involves, in part, a different and somewhat more difficult question. If the decision depended solely upon whether the broken pieces of the electrode put into the metal bath were sufficient to prevent the electrodes from being taxable, the ruling above as to the molds and stools would apply. We have two differences as far as the electrodes are concerned, (a) Carbon gas, created by the intense heat of the electric arc, goes into the molten metal, leaving some carbon in it, but is largely dissipated or oxidized, (b) For supplying the proper carbon content of the steel the electrodes are dipped into the molten mass. Sometimes they break off, falling into it, and if tests should indicate that the content is insufficient, broken and used electrodes are added to increase it. If the content is too high, it is removed by oxidation. The electrodes are totally consumed in the steel making process, and are the principal source from which the required carbon content is supplied.

The ruling in Hawes v. Bibb Manufacturing Co., 224 Ga. 141 (160 SE2d 355) that an oil impregnated in a fibre as a necessary part of the manufacuturing process and then removed is not taxable has application to the situation here.

The taxing statute, after defining the exempt "industrial materials” then reads: "Provided, however, the term 'industrial materials’ shall not include natural or artificial gas, oil, gasoline, electricity, solid fuel, ice or other materials used for heat, light, power or refrigeration in any phase of the manufacturing, processing or converting process.”

At the hearing before the trial judge, counsel for the commissioner and the taxpayer stipulated that the electrodes do not constitute a fuel within the meaning of this portion of the statute. This we construe to be a stipulation of fact, and hence the parties are bound by it. Consequently, the electrodes, exempt as industrial materials by the portion of the statute preceding the proviso, are not brought back under it as a taxable item by the proviso on the theory that the electrodes are something in the category of "natural or artificial gas, oil, gasoline, electricity, solid fuel,” etc.

Our conclusion that the electrodes are exempt is consistent with the administrative rulings made by the commissioner for many years past, enjoying legislative acquiescence, and to which we give great weight in our consideration of the matter. Thompson v. Eastern Air Lines, 200 Ga. 216, 224 (39 SE2d 225); Undercofler v. Eastern Air Lines, 221 Ga. 824, 831 (147 SE2d 436).

The trial court was correct in its ruling that the electrodes are exempt from the sales and use tax.

Judgment affirmed in part; reversed in part.

Bell, C. J., Hall, P. J., Deen, Quillian, Evans and Clark, JJ., concur. Pannell and Stolz, JJ., dissent.