Northwestern Public Service Co. v. Housing & Redevelopment Commission

320 N.W.2d 515, 1982 S.D. LEXIS 336

• Court: South Dakota Supreme Court
• Decided: June 9, 1982
• Docket: 13469
• Status: Published

Opinions

MORGAN, Justice.

This appeal arises from a declaratory judgment which required appellant, Housing and Redevelopment Commission of Aberdeen (HRC), to pay a gross receipts tax on its purchase of electricity from Northwestern Public Service (NWPS). HRC appeals, arguing that it is exempt from payment of such a gross receipts tax by SDCL 10-45-10 and 11-7-72. We affirm the trial court’s ruling that HRC is not exempt from payment of the tax by these provisions.¹

HRC, which qualifies as a municipal corporation, owns a 75-unit apartment building and several single-family dwellings in Aberdeen. These units are obtained, operated and rented under the provisions of SDCL ch. 11-7 to provide housing to low-income families. Under SDCL 11-7-73, HRC makes payments in lieu of property and sales taxes owed to local governmental units. These payments, however, are not made in lieu of HRC’s obligation for the State’s gross receipts tax.

NWPS sells electrical energy to HRC. The State informed NWPS that HRC was not exempt from the imposition of a gross receipts tax on this transaction. Although NWPS added the tax to its charges, HRC refused to remit these amounts for the period from July 1979 until the present. NWPS, however, remitted the payments to the State.

Apparently, the amount of electricity used by HRC at the 74-unit apartment building is measured by a single meter. Thus, there is no way to determine how much electricity is used in the common areas as opposed to the individual apartments. Tenants, however, pay charges for the presence of certain electrical appliances in each of its dwellings. Each apartment tenant using a car plug-in is assessed an additional $25.00 per year; if the tenant uses a freezer $2.00 per month is added to the rent, and an air conditioner costs the apartment tenant $25.00 per year. Family dwellings are assessed slightly different rates; car plug-in privileges cost $25.00 per year, freezers $2.00 per month, each refrigerator costs $5.00 per month, and an air conditioner results in an additional assessment of $40.00 per year..

Absent a specific exemption, HRC is liable for the economic incidence of the gross receipts tax on NWPS’ sale of electricity to HRC.² See South Dakota State Medical Association v. Jones, 82 S.D. 374, 146 N.W.2d 725 (1966). HRC argues that SDCL 10-45-10 grants it tax-exempt status as a municipal corporation. Since the State concedes that HRC is a municipal corporation, our analysis of SDCL 10-45-6 depends on whether “tangible personal property” includes the sale of electricity.

Because SDCL 10-45-10 is a tax exemption, the words “tangible personal property” are strictly and narrowly construed in favor of the taxing power and given a reasonable, natural and practical meaning to effectuate the purpose for which the exemption was granted. Application of Veith, 261 N.W.2d 424 (S.D.1978); C. A. Wagner Const. Co. v. City of Sioux Falls, 71 S.D. 587, 27 N.W.2d 916 (1947); State v. Knudtson, 65 S.D. 547, 276 N.W. 150 (1937). Cf. Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981) (tax imposition statutes construed liberally to benefit the taxpayer). For the purposes of the use tax, tangible personal property includes gas and electricity. SDCL 10-46-1(5). Unless the legislature intended a different meaning, we are bound by this definition. SDCL 2-14-4. The plain intent to supply a different meaning is evidenced by the legislature’s 1979 amendment to SDCL 10 — 45-10 and its dichotomous treatment concerning exemption of and liability for different types of business transactions.

Exemptions are based on public policy and should be construed to effectuate this policy. East River Legal Services v. State, Etc., 303 N.W.2d 375 (S.D.1981). The applicable public policy is determined by what the legislature said, not what they might have said. National College of Business v. Pennington County, 82 S.D. 391, 146 N.W.2d 731 (1966). In 1979 the legislature enacted an amendment to SDCL 10-45-10 which added the words “tangible personal property.” Before 1979, these words of qualification did not appear in the statute. Additionally, the act which amended SDCL 10-45-10 expressly declared that its public purpose was to “broaden the base of the sales tax.” S.D.Sess.L. ch. 84 at 106 (1979). To read “tangible personal property” as appellant urges is to narrow the tax base and annul the legislature’s express intent.

Moreover, the provisions of SDCL ch. 10-45 demonstrate that the legislature treats the sale of tangible personal property, services and electricity as different taxable transactions. SDCL 10-45-2 applies to the sale of tangible personal property. SDCL 10-45-4 taxes business services. SDCL 10 — 45-6 places a tax on the sales, furnishing or service of electricity. Although each type of transaction corresponds with specifically worded provisions imposing the gross receipts tax, only the sale of business services and tangible personal property are referred to in the exemption provisions. The legislature has never used the words “sales, furnishing or service of . . . electricity” in any provision granting an exemption. With regard to the sales of tangible personal property and business services, however, the legislature has enacted correlative exemption provisions. SDCL 10-45-10, -20. Since the legislature has seen fit to deal with these transactions severally, we reject HRC’s attempt to extend the SDCL 10-45-10 exemption for sales of tangible personal property to include sales, furnishing or service of electricity.

This same reasoning disposes of HRC’s argument that SDCL 11-7-72 exempts HRC from the gross receipts tax on the sale of electricity. This statute provides, in pertinent part, that,

The properties of a [housing] commission are declared to be public properties ... and such properties and the commission shall be exempt from all taxes and special assessments of the city, the county, the state or any political subdivision .... (emphasis supplied)

This provision grants an exemption from property taxes. A gross receipts tax is assessed against the transaction as a condition of doing business. The business and property involved in the sale are clearly those of NWPS. SDCL 11-7-72 will not support HRC’s argument that this provision exempts HRC from a gross receipts tax.

Today, we hold that SDCL 10-45-6 imposes a tax on the sale, furnishing or service of electrical energy and that the inclusion of “tangible personal property” in SDCL 10-45-10 was designed to narrow that exemption. SDCL ch. 10-45 does not contain a specific exemption paralleling the language in SDCL 10-45-6. Each exemption relied on by HRC applies only to “tangible personal property” or other property taxes. Even though HRC’s situation may be analogous to the situation in East River Legal Services v. State, supra, the statutes exempt only the sale of tangible personal property or services.³ If the legislature intended to exempt the sale, furnishing or service of electricity, it could have provided so in a specific provision. Since we find no such provision, we affirm the trial court’s ruling that HRC is not exempt from SDCL 10-45-6. This holding disposes of the other issues raised on appeal and decided by the trial court.

WOLLMAN, C. J., and DUNN and FOSHEIM, JJ., concur. HENDERSON, J., dissents.

1 . Although HRC contests the absence of findings of fact and conclusions of law, it entered a stipulation of facts. HRC fails to demonstrate that this stipulation did not cover all matters considered by the trial court. SDCL 15-6-52(b) provides that findings and conclusions are waived by entering into a stipulation of facts. HRC’s argument lacks merit.

2 . NWPS bears the legal incidence of the tax under SDCL 10-45-6. The tax, however, is passed through to the consumer under SDCL 10-45-22.

3 . East River Legal Services v. State, 303 N.W.2d 375 (S.D.1981), is inapposite, since HRC fails to argue that it is a nonprofit charitable organization. Moreover, the trial court’s memorandum decision makes no reference to this type of argument.