Consolidated Freightways Corp. v. State, Department of Revenue & Taxation

735 P.2d 963, 112 Idaho 652, 1987 Ida. LEXIS 279

• Court: Idaho Supreme Court
• Decided: February 19, 1987
• Docket: 16198
• Status: Published

Opinions

HUNTLEY, Justice.

Consolidated Freightways Corporation (Consolidated) is a Delaware corporation which performs intrastate and interstate transportation services within the continental United States and Alaska. Consolidated operates a Boise rate center which computes charges for the transportation services that it performs, both on its own and in conjunction with other common carriers with which it interlines its customers’ shipments. These charges for transportation and related services are found in tariff schedules which are required to be filed with various regulatory agencies. In order to conduct its business, Consolidated acquires tariff schedules from various companies throughout the country. These schedules are mass-produced by tariff bureaus which specialize in compiling and preparing tariff schedules. In addition, compiled tariff schedules are provided to carriers who subscribe to the service. The printed tariff schedules are published in bound and loose-leaf form, and they may be updated daily. The information acquired from the tariff schedules is entered into computers. Consolidated also acquires computer tapes which contain rate information.

Consolidated received periodic billings from the tariff bureaus. Upon paying the itemized amounts due, Consolidated charged the payment to two different Consolidated expense accounts. A portion of the amount paid was charged to account number 4627-10, entitled Tariffs and Schedules, which was intended to include charges made for the publications and supplements. A larger portion of the billing was charged to account number 4627-20, which was an account to which payments were charged for services that were in addition to providing the rate and tariff schedules. This later account included such charges as participation, dues and monthly general services provided by the tariff bureaus. These monthly services include rate sampling, costing, and revenue analysis services to be used in justifying general rate increases and restructures before the ICC.

The tax commission held the charges made to account number 4627-10 subject to use tax, because the account reflected the amount paid for printed publications shipped to and used in the Boise rate center. The amounts charged to account number 4627-20 were treated as excluded from tax, because the charges were for services that were distinct and separate from providing the tariff schedules.

The first question we address is whether the use tax under I.C. § 63-3621 is applicable to Consolidated’s acquisition of the tariff rate schedules. The use tax statute provides:

63-3621. Imposition and rate of the use tax. — An excise tax is hereby imposed on the storage, use, or other consumption in this state of tangible personal property acquired on or after July 1, 1965, for storage, use, or other consumption in this state at the rate of four per cent (4%) of the value of the property, and a recent sales price shall be presumptive evidence of the value of the property.

“Storage” and “use” are defined in I.C. § 63-3615(a) and (b):

63-3615. Storage — Use.—(a) The term “storage” includes any keeping or retention in this state for any purpose except sale in the regular course of business or subsequent use solely outside this state of tangible personal property purchased from a retailer.

(b) The term “use” includes the exercise of any right or power over tangible personal property incident to the ownership or the leasing of that property or the exercise of any right or power over tangible personal property by any person in the performance of a contract, or to fulfill contract or subcontract obligations, whether the title of such property be in the subcontractor, contractor, contractee, subcontractee, or any other person, or whether the titleholder of such property would be subject to the sales or use tax, unless such property would be exempt to the titleholder under section 63-3622(d), Idaho Code, except that the term “use” does not include the sale of that property in the regular course of business.

In interpreting the language of a use tax statute, the court should use legislative intent as a primary guide. Morrison-Knudson Company, Inc. v. State Board of Equalization, 58 Wyo. 500, 135 P.2d 927, 931 (1943). Further, legislative intent is evident by the language of the statute. General Trading Co. v. State Tax Com., 322 U.S. 335, 64 S.Ct. 1028, 88 L.Ed. 1309 (1944).

The Sales Tax Act imposes an excise tax on the “sale price” of every “sale at retail” of tangible personal property. I.C. § 63-3621. Tangible personal property is defined as “personal property which may be seen, weighed, measured, felt or touched, or which is in any manner perceptible to the senses. The term “tangible personal property” includes any computer software which is not a custom computer program.” I.C. § 63-3616(a), (b).

Although the statutory definition of “tangible personal property” does not include services, services are not in all aspects exempt from taxation, as is evidenced by the definition of “sales price”:

63-3613. Sales price. — (a) The term “sales price” means the total amount for which tangible personal property, including services agreed to be rendered as a part of the sale, is sold, rented or leased, valued in money whether paid in money or otherwise, without any deduction on account of any of the following:

2. The cost of materials used, labor or service cost, losses, or any other expense.

To appropriately apply the use tax statutes to the sale of the subject tariff schedules, three requirements must be fulfilled: First, it must be established that the printed tariff schedules are tangible personal property; second, the tariff schedules must have been obtained through a retail sale; and third, it must be shown that the printed tariffs were under the control and ownership of Consolidated Freightways in Idaho. Old West Realty, Inc. v. Idaho State Tax Com., 110 Idaho 546, 548, 716 P.2d 1318, 1320 (1986).

The first requirement is met in that the tariffs easily fit within the statute’s definition of tangible personal property “which may be seen, weighed, measured, felt or touched, or which is in any other manner perceptible to the senses.” The printed tariffs are a physical product. In fact, the record provides a detailed description of the tariff schedule’s physical characteristics:

The printed tariff schedules are published in bound and in loose-leaf form and may be updated as frequently as daily. After receiving the tariff schedules, some of the information is entered into computers, and thereafter Consolidated may not have to refer to the printed, published schedules. Consolidated also acquires computer tapes which contain rate information and uses the tapes to store information for future reference.

The pivotal issue in this controversy is whether the tariff schedules were purchased as part of a retail sale of tangible personal property. The sales tax does not apply to transactions where the rendering of a service is the object of the transaction, even though tangible personal property is exchanged incidentally; but to state that truism does not shed light on the proper resolution of this case.¹ Hence, the issue is further defined as to whether the object of the transaction is a purchase of services or the purchase of tariff schedules. To reach a conclusion as to whether this is a sale of services or a retail sale of tangible personal property, the balancing test established in the Idaho Sales and Use Tax Regulations, Reg. 9, l.b.i, should be applied.

The test to determine whether the purchase of the tariff schedules was a retail sale is to establish the real object of the transaction. This approach to judicial interpretation of use taxation was used in Lindner Bros., Inc. v. Kosydar, 46 Ohio St.2d 162, 346 N.E.2d 690 (1976), where the court viewed the sale of cards and printouts of data processing results as a transfer of tangible property and the real object of the transaction. In Miami Citizens Natl. Bank & Trust Co. v. Lindley, 50 Ohio St.2d 249, 364 N.E.2d 25 (1977), the court viewed the providing of printouts of bank transactions as a transfer of tangible property and the real object of the transaction. In Citizens Financial Corp. v. Kosydar, 43 Ohio St.2d 148, 331 N.E.2d 435 (1975), the court viewed the providing of printouts of daily banking transactions as the transfer of tangible property and the real object of the transaction. In other Ohio State Supreme Court cases, the court held that the transfer of tangible personal property was an inconsequential element of the underlying transaction and that the true object sought was a service.

In Accountants Computer Services, Inc. v. Kosydar, 35 Ohio St.2d 120, 298 N.E.2d 519, 523 (1973), the court gave an example of an indicator that the tangible personal property which was transferred was an inconsequential element of the transaction. There, the fact that no separate charge was made for the tangible property obtained was held to be an indication that the transfer was incidental to the service obtained. In the instant case, Consolidated Freightways was charged in a separate account for a variety of services. In another separate account, Consolidated Freight-ways was charged for the printed tariff schedules. Therefore, the separate charge for the printed tariff schedules is clear evidence that the tangible personal property was not incidental to the service, but was the real object of the transaction.

In Bullock v. Statistical Tabulating Corp., 549 S.W.2d 166, 168 (Tex.1977), the Texas Supreme Court noted that:

The true object of this transaction is not the data processing card as contended by the comptroller, but the purchase of coded or processed data, an intangible.

The customer brings in raw data which is conceded by both parties to be an intangible item, but perceptible to humans. The customer then buys Plaintiff’s capabilities in effecting a translation of the data such that it becomes perceptible to a computer. The essence of the transaction for the customer is an intangible product, coded data and Plaintiff’s capabilities in making the translation or coding.

The court recognized that the element of service was the essence of the transaction. In the Bullet case, the customer had the raw data, but needed to have it processed and translated into a computer format. However, in the instant action, the customer did not have the raw data, but was in need of the information. Therefore, in addition to providing the physical printout of the information, the tariff bureau is providing Consolidated Freightways with the sought-after information, which is the real object of the transaction.

In Columbia Pictures Industries, Inc. v. Tax Comr., 176 Conn. 604, 410 A.2d 457, 461 (1979), the court concluded that when consequential services are intertwined with tangible personal property the critical factor determining whether the buyer intended to buy an individual’s skills or the tangible end product of those skills is the buyer’s end use of the tangible product. In Columbia, it was clear that the exhibitor’s object was to obtain possession of the salable end product, the film. Therefore, the court concluded that the rental or license to exhibit the motion picture was a taxable sale. Further, since the film was a salable end product, the personal service exemption was held to be inapplicable. The facts of the instant action show similar parallels to the facts presented in Columbia. Consolidated exercised control and power over the tariff books. In addition, tariffs and tariff supplements were acquired on many different occasions. It is evident that Consolidated was not interested in just the rate information, but the rate information displayed in a tangible format.

The third and last step in this analysis is whether the use of the tariffs by Consolidated in Boise is subject to use tax. When tangible personal property is purchased outside Idaho for use in Idaho, an excise tax is imposed on its use or consumption in this state. I.C. § 63-3621. It has been established that the tariff schedules are tangible personal property. Further, it is evident that Consolidated Freightways exercised power and control over the tariff schedules incident to their ownership of the tariffs. The tariff schedules were used by Consolidated Freightways in Idaho to further promote their business. Therefore, the use tax is applicable.

We next address the issue of the appropriateness of penalty. Consolidated argues that it was not negligent because its failure to pay the contested taxes was based on consultation with its tax accountant, and therefore, no penalty should be imposed. The record, however, provides no indication as to when the consultation took place, i.e., before or after the tax was due. Therefore, the trial court correctly held Consolidated had not presented evidence sufficient to refute the inference of negligence.

I.C. § 63-3046(a), incorporated into the Sales Tax Act by I.C. § 63-3634, states:

63-3046. Additions to the tax in case of deficiency. — (a) If any part of any deficiency is due to negligence or disregard of rules and regulations but without intent to defraud, five per cent (5%) of the total amount of the deficiency (in addition to such deficiency) shall be assessed, collected and paid in the same manner as if it were a deficiency except that no interest shall accrue upon the five per cent (5%) amount hereby imposed.

Courts interpreting statutes similar to I.C. § 63-3046(a) have upheld penalties imposed for deficiencies in sales taxes despite the taxpayer’s claim that the deficiency was the result of a good faith controversy as to entitlement to a particular exemption. In Duval v. Brown, 31 Conn.Supp. 373, 333 A.2d 63 (1974), the court upheld a penalty imposed upon the taxpayer even though the taxpayer had completely relied upon the advice of a professional accountant.

In C & D Trailer Sales v. Taxation and Revenue Dept., 93 N.M. 697, 604 P.2d 835 (1979), the court held that a taxpayer’s mere belief that it was not liable for taxes is tantamount to negligence, and the imposed penalty was appropriate. In Independent Iron Works, Inc. v. State Board of Equalization, 167 Cal.App.2d 318, 334 P.2d 236 (1959), the taxpayer argued that a negligence penalty was unjustified because there was an honest dispute over the legality of such a tax. The court, however, did not find that the taxpayer had a reasonable basis for such a belief. Therefore, the court held that the taxpayer knew, or should have known, that the contested transaction was taxable.

In Robert H. Hinckley, Inc. v. State Tax Com., 17 Utah 2d 70, 404 P.2d 662 (1965), the court held that a penalty was discretionary on the part of the tax commission. The court also held that the penalty would be reversed only if evidence were presented that the taxpayer was not negligent. In Rowe-Genereux, Inc. v. Vermont Dept. of Taxes, 138 Vt. 130, 411 A.2d 1345 (1980), the court held that penalties imposed by statute on tax deficiencies were purely discretionary and would not be overturned absent abuse of discretion. Here, the record sustains the trial court’s finding of negligence and appellant has not demonstrated any abuse of discretion.

In addition, of the $49,379 total deficiency, $6,069 was attributable to the tax due on the use of fixed assets other than the tariffs. Consolidated did not dispute the tax on those assets. The statute provides that “if any part of any deficiency is due to negligence or disregard,” a five per cent penalty attaches to the total amount of the deficiency. Since Consolidated has not attempted to challenge the $6,069 deficiency, the penalty would have been appropriate on the total amount of the deficiency even had there been no negligence as to the $42,310 contested portion of the assessment.

Accordingly, the judgment is affirmed. Costs to respondent, no attorney fees awarded.

DONALDSON and BISTLINE, JJ., concur.

1 . Here we are dealing with a mixed transaction, that is, one which is in part a sale of both services and tangible personal property, and the regulations provide a method of classifying those mixed transactions consistently with legislative intent:

b. RETAIL SALES OF TANGIBLE PERSONAL PROPERTY TOGETHER WITH SERVICES:

i. The sales tax applies to retail sales of tangible personal property. It does not — except to the extent stated above — apply to the sale of services. However, when a sale of tangible personal property includes incidental services, the measure of the tax is the total amount charged including the amount charged for any incidental services, except separately stated transportation and installation charges. The fact that the charge for the tangible personal property sold is principally derived from labor and/or creativity of the maker of the property does not transform a sale of tangible personal property into a sale of services. The cost of any commodity includes labor and skill or manufacture. In determining whether a transaction is a retail sale of tangible personal property or a sale of services, the following tests are to be applied:

(a)In determining whether a transfer of tangible personal property is a taxable retail sale or a transfer merely incidental to a service transaction, the proper test is to determine whether the transaction involves a consequential or inconsequential professional or personal service. If the service rendered is inconsequential, then the entire transaction is taxable. If a consequential service is rendered, then it must be ascertained whether the transfer of the tangible personal property was an inconsequential element of the transaction. If so, then none of the consideration paid is taxable.

(b) In determining whether a mixed transaction constitutes a consequential service transaction, a distinction must be made as to the object of the transaction — i.e., is the object sought by the buyer the service per se or the property produced by the service.

(c) Where a transaction is mixed in such a manner that the tangible personal property transferred and the service rendered are distinct consequential elements having a fixed and ascertainable relationship between the value of the property and the value of the service rendered so that both may be separately stated, there exists two separate transactions and the one attributable to the sale of tangible personal property is subject to sales taxation while the other is not. I.D.A.P.A. 35.02.09, l.b.i.