State Board of Equalization v. Cheyenne Newspapers, Inc.

611 P.2d 805, 1980 Wyo. LEXIS 270

• Court: Wyoming Supreme Court
• Decided: May 15, 1980
• Docket: 5239
• Status: Published

Opinions

RAPER, Chief Justice.

Liability for use taxes on certain supplies used in the process of printing newspapers and on a printing press purchased by appel-lee, Cheyenne Newspapers, Inc., is the subject dealt with in this appeal. The district court reversed the appellant, State Board of Equalization, which had held the supplies and printing press taxable.

We will affirm the district court.

The issues as stated by appellant are:

“1. Was the District Court in error in holding that chemicals, paste-up pages, aluminum plates, photographic supplies, or other items consumed by Cheyenne Newspapers, Inc., in publishing its newspapers were exempt from the Wyoming Use Tax under W.S. 39-312(e) (1957) which exempts tangible personal property which directly enters into or becomes an ingredient or component part of any manufactured article?

“2. Was the District Court in error in holding that the press purchased by Cheyenne Newspapers, Inc., was not subject to the Wyoming Use Tax on the basis set forth by the Wyoming State Board of Equalization that Cheyenne Newspapers, Inc., was a contractor pursuant to W.S. 39-335.1(b) and (c)(ii) (1957)?”

The appellee is a Wyoming corporation publishing several newspapers, the Wyoming State Tribune, The Wyoming Eagle, the Sunday Wyoming Tribune-Eagle, the SUN/day Magazine (a supplement to the Sunday Wyoming Tribune-Eagle), and the Wyoming Stockman-Farmer. Appellee’s offices are maintained in Cheyenne. The Wyoming Department of Revenue and Taxation (Department) audited the appellee for the period January 1, 1973 through December 31, 1975 to determine whether appellee was liable for sales or use taxes. As a result of the audit, the Department issued a Deficiency Assessment, Notice and Demand to appellee claiming use taxes due the State of Wyoming in the sum of $13,539.71, including penalty and interest. On hearing before the State Board of Equalization, the action of the Department was approved. Section 39-43.8, et seq., W.S.1957, 1975 Cum.Supp. Appeal to the district court followed. Rule 12, W.R.A.P.

The facts pertinent to the first issue are these. Appellee, in printing its papers, uses what is known as a cold offset method. News copy in the form of words is typed on a keyboard similar to that of a typewriter and transformed into a perforated tape. A device called a photosetter, a type of camera, converts the tape back into words in columns for newspaper format onto photographic paper which is developed in a photographic chemical solution. The resulting photograph is placed on a grid sheet to form a paste-up page of the newspaper in the making. Pictures go through a different process which changes the photoprint into a dot pattern. This is also a chemical developing process. The halftone resulting from this process is pasted onto the grid sheet where desired along with the word copy.

The paste-up on the grid sheet is then photographed and the negative — like the negative in other type photography to which we are accustomed — is laid on a sensitized aluminum plate and exposed to a bright arc light called a plate burner. When developed in a chemical solution the aluminum plate has an etched image of the material appearing on the grid sheet. The plate is installed on a cylinder in the printing press where the image is mechanically transferred onto an inked blanket and thence rolled onto the newsprint paper which is also chemically treated to prevent smearing of the ink.

The printed pages go on through the press where they are eventually folded and come out a complete newspaper for distribution. The end product, the newspaper, is made up only of ink and paper. The Department assessed the appellee a use tax on the cost of chemicals, the photographic supplies, the aluminum plates and other supplies consumed completely — expended, destroyed or rendered useless — in the process, claiming that the only materials forming a part of the manufactured product, the newspaper, were the ink and paper.

The facts pertinent to the second issue follow. In 1975, appellee purchased a printing press for $51,715.00. It was installed by the vendor-manufacturer in a building which is leased by appellee. It was permanently attached to the floor and the appellant determined it to be a fixture. A use tax was assessed on the press.

EXPENDABLE SUPPLIES

Section 39-312(e), W.S.1957, 1975 Cum. Supp., in effect during the pertinent time period, provided:

“The storage, use or consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this act [§§ 39-309 to 39-335]:

* * * * sft *

“(e) Tangible personal property or product which directly enters into or becomes an ingredient or component part of any manufactured article or substance or commodity including any printed publication, and the furnished container, label or the shipping case thereof.” (Emphasis added.)¹

The appellant contends that the materials going into the preparation of the aluminum plates and the aluminum plates themselves are all not exempt from taxation and that the only tangible personal property “which directly enters into or becomes an ingredient * * * of * * * [the] printed publication” is the ink and newsprint.

This is not a new question to this court. In 1935 the legislature enacted the “Emergency Sales Tax Act of 1935.” Chapter 74, Session Laws of Wyoming, 1935. By its terms, it was self-repealing and expired on March 31, 1937. Section 2(f) of that Act exempted tangible personal property used in manufacturing:

“(f) Each purchase of tangible personal property or service made by a person engaged in the business of producing, furnishing, manufacturing, or compounding for sale, profit or use, any article, substance, service or commodity which is actually used in the production of, or enters into the processing of, or becomes an ingredient or component part of the article, substance, service, or commodity which he manufactures or compounds, produces or furnishes, or the container, label, or the shipping case thereof, shall be deemed a wholesale sale and shall be exempt from taxation under this act.”

This court had occasion to construe that section in State Board of Equalization of Wyoming v. Oil Wells Supply Co., 1937, 51 Wyo. 226, 65 P.2d 1093. The State in that case contended that certain supplies and equipment actually used and consumed in producing crude oil, natural gas and refining, processing and manufacturing of crude oil into gasoline and other petroleum products, were not “actually used in the production of” a commodity within § 2(f) unless it' enters into the commodity. This court said:

“* * * The construction contended for would in effect rewrite the section, and eliminate words that were evidently inserted with deliberation for the very purpose of making the exemption apply to sales of property that does not in a physical sense enter into the purchaser’s product. Section 2(f) of the bill (H.B. 124, Legislative Session 1935), as introduced in the Legislature, limited the exemption to sales of property ‘which enters into and becomes an ingredient or component part’ of the product manufactured or compounded by the purchaser. In the Senate the bill was amended by inserting after the word ‘which’ the words ‘is used in the production of or,’ by striking the word ‘and’ and inserting the words ‘the processing of or’ after the word ‘into.’ Senate Journal, 1935, p. 432. These amendments were retained in the section as rewritten by the conference committee and passed by the Legislature. House Journal, p. 622; Senate Journal, p. 517. The section cannot be given the meaning plaintiff contends for unless we substitute ‘and’ for ‘or’ before the words ‘becomes an ingredient or component part.’ We cannot assume the right thus to reverse the action of the Legislature.” 65 P.2d at 1094-1095. (Emphasis added.)

We, therefore, see that the case turned upon the significance of the word “or.” As pointed out by this court, the words “[1] enters into” are separated from “[2] becomes an ingredient or component part” by the word “or,” thus expressing the intention that the words “enters into” are not used to denote that they enter into the product “in a physical sense.” This court went on to say that though the section is broader than most,

“ * * * It has often been suggested, however, that sales as described in this section should not be subject to a tax intended to be imposed on retail sales. [Citing authorities.]” 65 P.2d at 1095.

See also as a matter of interest the companion case to State Board of Equalization of Wyoming v. Oil Wells Supply Co., supra; State Board of Equalization of Wyoming v. Stanolind Oil & Gas Co., 1937, 51 Wyo. 237, 65 P.2d 1095, where § 2(f), ch. 74, Session Laws of Wyoming, 1935, was again the subject of construction. In that case the State Board of Equalization took the position that the pipeline service of transporting the oil from the well to the refiner was subject to sales tax because the purchased service did not become a physical part of the commodity manufactured. This court observed that such an argument was even less tenable than in the companion case which involved sales of tangible property. It was again observed that the exemption is evidently allowed on the theory that in an economic sense the exempted service is resold by the purchaser when he sells the commodity which he produces or manufacturers and the court must give effect to the legislative intention.

This court reiterated that concept in State v. Capital Coal Co., 1939, 54 Wyo. 176, 88 P.2d 481, in construing § 2(f) of the 1935 Act. In that case the coal company refused to pay the sales tax to the Union Pacific Railroad Company on transportation of coal for resale. That 1935 section as we have seen and as set out by this court provided that,

“* * * Each purchase of * * * service (transportation) made by a person engaged in the business of * * * furnishing * * * for sale, profit or use any * * * commodity (coal) which * * * enters into the processing of, or becomes an ingredient or component part of the * * * commodity which he * * * furnishes, * * * shall be deemed a wholesale sale and shall be exempt from taxation under this act.” 88 P.2d at 483.

The court in the coal company case held that the transportation must be considered a part of the “process” of furnishing and in referring to State Board of Equalization of Wyoming v. Oil Wells Supply Co., supra, and State Board of Equalization of Wyoming v. Stanolind Oil & Gas Co., supra, pointed out that those decisions enlarged the class of sales deemed wholesale sales by making it include sales of both tangible property and services which, though actually used and consumed by the purchaser, “became in an economic sense a part of a commodity that was resold.” The court went on to point out that “the transportation in question in this case became a part of the coal resold to the coal company’s customers * * *.”

In the coal company case, the policy of the law toward exemptions of this sort was also laid out and the court said:

“* * * It may be thought that, to bring the purchases within the letter of the statute, we must give some of its words a rather broad meaning, but we think we are justified in so doing. In Equitable, etc., Society v. Thulemeyer, 49 Wyo. 63, 96, 52 P.2d 1223, 1234, 54 P.2d 896, we stated the general rule that revenue laws will, if ambiguous or doubtful, be construed in favor of the taxpayer. * * * ” 88 P.2d at 483.

The legislature at its next session, apparently reacting to the foregoing opinions, upon adoption of the Selective Sales Tax Act of 1937, ch. 102, Session Laws of Wyoming, 1937, a permanent version, amended § 2(f) to read:

“(f) Each purchase of tangible personal property or product made by a person engaged in the business of manufacturing, compounding for sale, profit or use, any article, substance or commodity which directly enters into and becomes an ingredient or component part of the tangible personal property or product which he manufactures or compounds, or the furnished container, label, or the shipping case thereof, shall be deemed a wholesale sale and shall be exempt from taxation under this Act.”

Note that the word “and” was substituted for “or,” thereby neutralizing State Board of Equalization of Wyoming v. Oil Wells Supply Co., supra, as far as the sales tax exempted by § 2(f) was concerned. In Woodson v. State, 1941, 57 Wyo. 305, 116 P.2d 852, decided subsequent to the amendment, Woodson, doing business as Capital Coal Company, resisted payment of the sales tax to Union Pacific incurred subsequent to the amendment. The court held that a change of wording specifically placing the sales tax on transportation under such circumstances required the coal company to pay the tax. See also, State v. Holly Sugar Corporation, 1941, 57 Wyo. 272, 116 P.2d 847, in which exemption for sales tax on transportation was claimed under the 1937 Act and also denied. These cases did not effect a reversal of the concepts expressed in the Oil Wells and first coal company cases.

During the same session of the legislature in 1939, there was enacted the “Use Tax Act of 1937,” ch. 118, Session Laws of Wyoming, 1937.² Section 4(e) was enacted:

“Section 4. The storage, use or other consumption in this State of the following tangible personal property is hereby specifically exempted from the tax imposed by this Act:

* * * * * *

“(e) Tangible personal property or product which directly enters into or becomes an ingredient or component part of any manufactured article or substance or commodity, and the furnished container, label or the shipping case thereof.” (Emphasis added.)

This language is identical in its pertinent part with § 2(f) of the 1935 Act. It is this section and subsection, with the additional phrase “including any printed publication” following “commodity,” which now comprise § 39-312(e), W.S.1957, 1975 Cum. Supp., under which the State makes its claim here. The concepts expressed in State Board of Equalization of Wyoming v. Oil Wells Supply Co., supra, do after all remain alive, as do the holdings of the first coal company case, supra, and the Stanolind Oil Company case, supra. Their vitality was merely transferred from sales to use taxes. The construction of the language “enters into” when separated from “becomes an ingredient or component part of any manufactured article” by the word “or” does not mean that the purchased property must in a physical sense enter into the purchaser’s product. Rather, it means it must enter in an economic sense. We might even say that in an artistic sense the images created by the various processes do actually appear on the published newsprint in the case before us.

Statutes should be given a reasonable, practical construction. McGuire v. McGuire, Wyo. 1980, 608 P.2d 1278; Kelley v. Rhoads, 1898, 7 Wyo. 237, 51 P. 593, 39 L.R.A. 594, 75 Am.St.Reports 904. It should be observed that the controlling statute separates exempt property into two categories: that “[1] which directly enters into or [2] becomes an ingredient or component part of * * * any printed publication * * The bracketed “[1]” and “[2]” are only inserted to emphasize that there are two significant phrases in the statute and not intended to be judicial amendments or additions. We must give meaning to every word, clause and sentence of the statute and the statute should be construed so that no part will be inoperative or superfluous. It is often helpful in the process of construing a statute to parse or diagram the statute’s sentences. This is not an exercise in “rewriting” but only one which results in finding the meaning of the word arrangement of the statute. State, ex rel. Benham v. Cheever, 1953, 71 Wyo. 303, 257 P.2d 337. The ink and the newsprint cannot exist as a publication without the direct use of preparatory supplies. The appellant has only recognized category two of the statute as we have numbered the clauses for illustrative purposes and overlooks category one. The appellant also overlooks the words “or” and “consumption,” found in the introductory sentence of § 39-312, supra. If we were to do so, we would render meaningless the clause “which directly enters into,” as mere surplusage. It cannot be reasonably expected that the legislature intended [1] and [2] to have identical meanings. We consider that language to mean property used up but not a component part of the publication.

Our question may well be, “when does manufacturing begin?” At least one court has gone back even further than we do in this case. While the statute considered ³ in McClure Newspapers, Inc. v. Vermont Dept. of Taxes, 1974, 132 Vt. 169, 315 A.2d 452, was somewhat more clear than the one before us, the court there observed that for newspapers the “manufacturing” process begins with gathering of the news. In that case films and flash bulbs used in photographing a news event were tangible property which went into the publication of the news and were as much a part of the process as “applying print to paper.” Perforated tapes, aluminum plates and other items such as we have here were also involved in McClure and declared exempt.

It has not been satisfactorily explained why the expendables in question should be treated any differently than ink and paper. They represent costs which must be passed along and absorbed in the expense of production. How and why they are entitled to a different classification has not been shown. The word “directly” should not be construed to require a division of the manufacturing process into theoretically distinct stages when in fact it is a continuous, indivisible process. The original copy and news photos pass through a continuous, uninterrupted process until transformed into the final product, a newspaper. As explained in State v. Capital Coal Company, supra, they do become “in an economic sense a part of a commodity that was resold.”

Prior to amendment of a similar statute⁴ the court in Courier Citizen Company v. Commissioner of Corporations and Taxation, 1971, 358 Mass. 563, 266 N.E.2d 284, held that when applied to film, chemicals, emulsions, plates, etc., used in the pre-press preparation, the term “directly” referred to supplies essential to production. As such, they are part of what is factually an integrated process of modern printing and cannot realistically and reasonably be reduced to fragments or segments for taxing purposes so as to disqualify them from the exemption. Under a statute similar to that of Massachusetts described in Courier, in United Aircraft Corp. v. Connelly, 1958, 145 Conn. 176, 140 A.2d 486, the word “directly” was held to apply to production materials such as x-ray films and testing chemicals which did not become a part of the finally fabricated airplanes, engines and propellors and the exemption was applicable. See also Niagara Mohawk Power Corporation v. Wanamaker, 1955, 286 App.Div. 446, 144 N.Y.S.2d 458, to the same effect.

No express language, such as “consumed or destroyed or loses its identity in the manufacture” or “in the process of manufacture,” appears in the Wyoming statute. The statute is, however, assembled from all the necessary words to express the same meaning. “Consumption,” according to Webster, means an act or process of consuming; waste; destruction; also, the using up of anything. Use of the term “manufactured article” reasonably ■ anticipates that there must have been an antecedent manufacturing process for tangible personal property to be transformed into that state. The foreign statutes we cite do not use the term “manufactured article.” There is, therefore, built into the statute all the words required to deliver the meaning we have expressed. “Consumption” of “tangible personal property * * * which directly enters into or becomes * * component part of * * * any printed publication” tells the whole story. There is, therefore, an identifiable similarity with statutes of other states to which we have referred. This economy of words may be commendable. There is no need to cloak clear language with imaginary shortcomings.

Both parties overlook the authority of State Board of Equalization of Wyoming v. Stanolind Oil & Gas Co., 1939, 54 Wyo. 521, 94 P.2d 147, for a construction of the word “directly” with which we are concerned here. In the 1937 Act, § 2(f), ch. 102, Session Laws of Wyoming, 1937, the exemption from sales tax was granted in different language than that now before us. The first paragraph is set out only as introductory:

“Each purchase of tangible personal property or product made by a person engaged in the business of manufacturing, compounding for sale, profit or use, any article, substance or commodity which directly enters into and becomes an ingredient or component part of the tangible personal property or product which he manufactures or compounds, or the furnished container, label, or the shipping case thereof, shall be deemed a wholesale sale and shall be exempt from taxation under this Act.” (Emphasis added.)

There then followed a provision in the original Act as part of § 2(f) a special paragraph pertaining to power:

“Each purchase of power and/or fuel or any substitute for the same, made by a person engaged in the business of manufacturing or agriculture and consumed directly in manufacturing or by a person engaged in the transportation business and consumed directly in generating motive power for actual transportation purposes, shall be deemed a wholesale sale and shall be exempt from taxation under this Act.”⁵ (Emphasis added.)

In that case, the State Board of Equalization conceded that electric power “consumed directly in manufacturing” used by Stanolind in the production of gasoline, lubricating oils and other petroleum products was exempt but claimed that power for lighting purposes is not consumed “directly” in “manufacturing.” This court agreed with the argument of Stanolind:

“* * * ‘Whether the energy mentioned was used for power to revolve mechanical devices used in manufacturing, or to light the operation and to assist the workmen in carrying out these processes, can make little difference. In either instance the energy was used as directly in manufacturing as the needs could possible afford. When light was needed it was just as impossible to do the work incident to manufacturing crude oil into gasoline at night without light as it was to provide the necessary power for this purpose.’ ” 94 P.2d at 157.

Certainly the electricity consumed for the light bulbs did not show up as a component of the petroleum products any more than the various supplies consumed in preparatory procedures in the case now before us shows up in newspapers. For our purposes, then the use of the word “directly” in the sales tax section and its application in the use tax section are identical in meaning and application.

However there are three companion cases to State Board of Equalization of Wyoming v. Stanolind Oil & Gas Company, supra: State Board of Equalization v. Argo Oil Corporation, 1939, 54 Wyo. 512, 94 P.2d 158; State Board of Equalization v. Mountain Producers Corporation, 1939, 55 Wyo. 3, 94 P.2d 160; and State Board of Equalization of Wyoming v. Midwest Oil Company, 1939, 55 Wyo. 1, 94 P.2d 160. These eases also cite and are concerned with that portion of § 2(f) of the 1937 Act which provided that each purchase of tangible personal property made by a person engaged in the business of manufacturing for sale, profit and use any article which “enters into and becomes an ingredient or component part of the” product manufactured was exempt. Even though the legislature removed the “or” and substituted “and,” this court held that dry residue gas sold by Argo to Stanoiind was put through a process of manufacturing from which the resultant manufactured products were casing head gasoline and a vaporous gas known as dry or residue gas. The dry or residue gas was used as fuel to operate an electric plant, camps, pipelines and to stimulate production in its own wells as a part of Stanolind’s field operation. In addition, fuel was sold in the Lance Creek Oil to occupants in the camps there, which camps were operated for the purpose of drilling for and producing oil for marketing, the price of the gas entering into and becoming a part of the cost and sale price of the crude oil produced and of the gasoline and other petroleum products manufactured therefrom in the ordinary course of their business. The court held in all cases without discussion that these sales were used in manufacturing and exempt from the sales tax.

We hold that the pre-printing supplies at issue here directly entered into the printed publications and were exempt from payment of a use tax.

With respect to the use tax assessed on the printing press, § 39-335.1(b) and (c)(ii), W.S.1957, 1975 Cum.Supp., were in effect during the pertinent time period and provided:

“For the purpose of this act [§§ 39-335.1 to 39 -335.7], unless otherwise clearly indicated, the following terms shall be construed to mean:

* * * * sf: sfc

“(b) ‘Contractor’ means and includes any general or prime contractors or subcontractors.

“(c) ‘General or prime contractor’ means and includes (i) any person who contracts, either orally, in writing or by purchase order, with the owner, lessee or other person having authority to enter into a contract involving the premises or property which is the subject matter of the contract, to perform services or furnish materials or both for the construction, alteration, improvement or repair of any real or personal property or project in this state, or (ii) any person who owns or leases real estate in this state for the purpose of developing such real estate other than for his own residency, and in the development thereof, contracts, alters or makes improvements thereon.” ⁶

The appellant contends that the appellee is a contractor making improvements of real estate under the provisions of § 39-335.2, W.S.1957, 1975 Cum.Supp.:

“Any contractor who furnishes tangible personal property under contract or in the development of real estate owned or leased by him for purposes other than his residency, shall be deemed to be the consumer or user of such tangible personal property within the meaning of the sales and use tax laws of this state. * * *”

The district judge opined and held in his decision letter that appellant correctly found as a matter of fact that the appellee leased the building in which the press was located. However, he considered the conclusion inescapable that the lease was for the purpose of developing the real estate in order to provide a business residence for the appellee. The district court continued:

“* * * It would seem more reasonable to the Court that when discussion in the statute by way of defining liability for tax talks in terms of development of real estate that the intent of the Legislature in enacting such provision is to encompass those situations where real estate is developed for the purpose of subdivision, sale or leasing to others as a business. Doubts as to the construction of the revenue statute must be resolved in favor of the tax payer and against the taxing power. The State Board of Equalization vs. Stanolind Oil and Gas company [54 Wyo. 521], 94 P.2d 147 (Wyo.). Here the purpose of the press is to assist the petitioner in publishing a newspaper, rather than in any purpose of developing real estate. Finally it should be noted that reasonably the press should be considered a fixture that’s indicated in a Memoranda submitted by the petitioner at page 14. The Court finds that the board’s conclusion that the petitioner was a contractor pursuant to § 39-335.1(b) W.S.1957 as amended is contrary to law and not supported by substantial evidence.”

We agree. The appellant’s view is unrealistic. Tax statutes should have a practical construction. We hold that the printing press was not subject to payment of a use tax.

The district court is affirmed.

1 . Now cited as § 39-6-505, W.S.1977, 1979 Cum.Supp., and since amended to read:

“(a) The following sales are exempt from the excise tax imposed by this article:

* * * * * *

“(viii) Sales which directly enter into or become an ingredient or component of any manufactured product including the furnished container, label or shipping case therefor or any printed publication;”

Because this case originated in 1975, it is governed by the earlier version of the statute. We express no views as to whether the amendments would have an effect on the reasoning used to determine this case.

2 . A use tax and a sales tax are complementary to each other. The use tax is intended to apply to sales of goods bought outside the state and brought into the state so as to put such goods on an equal footing with goods subject to sales tax. Morrison-Knudson Co. v. State Board of Equalization, 1943, 58 Wyo. 500, 135 P.2d 927.

3 . “Tangible personal property which becomes an ingredient or component part of, or is consumed or destroyed or loses its identity in the manufacture of tangible personal property for later sale * * * [is exempt from use tax].” 32 Vt.Stat.Ann. § 9741(14).

4 . “[Materials * * * which become an ingredient or component part of tangible personal property to be sold or which are consumed and used directly * * * in the process of manufacture * * * [are exempt from use tax].” Mass.Ann.Laws, ch. 64H, § 6(r). For case decided after amendment see Houghton Mifflin Co. v. State Tax Commission, 1977, 373 Mass. 772, 370 N.E.2d 441, footnote 5.

5 . The pertinent language remains substantially the same in § 39-6-405(a)(v), W.S.1977, 1979 Cum.Supp.

6 . Now § 39-6-60l(a)(i) and (a)(ii)(A) and (B), W.S.1977.