739 A.2d 385 (Me. 1999), Estate of DiMillo v. State Tax Assessor

• Citation: 739 A.2d 385, 1999 ME 154
• Opinion Judge: ALEXANDER, J.
• Party Name: Estate of Antonio DiMILLO v. STATE TAX ASSESSOR.
• Attorney: Kurt E. Olafsen, (orally), Olafsen & Butterworth, Portland, for plaintiff., Andrew Ketterer, Attorney General, Crombie J.D. Garrett, Asst. Atty. General, (orally), Augusta, for defendant. Kurt E. Olafsen, (orally), Olafsen & Butterworth, Portland, for plaintiff. Andrew Ketterer, Attorney General...
• Judge Panel: Before WATHEN, C.J., and CLIFFORD, SAUFLEY, and ALEXANDER, JJ.
• Case Date: October 28, 1999
• Court: Supreme Judicial Court of Maine

Page 385

739 A.2d 385 (Me. 1999)

1999 ME 154

Estate of Antonio DiMILLO

v.

STATE TAX ASSESSOR.

Supreme Judicial Court of Maine.

October 28, 1999.

Argued Oct. 6, 1999.

Page 386

Kurt E. Olafsen, (orally), Olafsen & Butterworth, Portland, for plaintiff.

Andrew Ketterer, Attorney General, Crombie J.D. Garrett, Asst. Atty. General, (orally), Augusta, for defendant.

Before WATHEN, C.J., and CLIFFORD, SAUFLEY, and ALEXANDER, JJ.

ALEXANDER, J.

[¶ 1] The Estate of Antonio DiMillo ¹ appeals from a summary judgment entered in the Superior Court (Cumberland County, Crowley, J.) which determined that a "new hull structure" fabricated at Bath Iron Works (BIW) and attached to DiMillo's Restaurant was tangible personal property subject to use tax pursuant to 36 M.R.S.A. § 1861. The DiMillo Estate contends that labor required to fabricate the hull structure at BIW was not tangible personal property subject to taxation.

[¶ 2] Imposition of the tax was challenged pursuant to 36 M.R.S.A. § 151 which requires the trial court to decide taxability issues " de novo. " See Apex Custom Lease Corp. v. State Tax Assessor, 677 A.2d 530, 532 (Me.1996). As there are no disputes as to material facts in this case, the matter was appropriately presented and decided on summary judgment. Id. We affirm the judgment.

[¶ 3] DiMillo's is a floating restaurant on the Portland Waterfront created from a former ferry boat. In 1993, Antonio DiMillo determined that repair of the hull of his restaurant was necessary. In cooperation with a marine architect and BIW, DiMillo determined that the most efficient method of repair would be prefabrication of a "new hull structure" and attachment of that structure to the restaurant's existing hull. That repair was accomplished. Subsequently, a dispute developed between DiMillo and the State Tax Assessor over whether the $256,168 cost of prefabricating the new hull structure was taxable as part of the tangible personal property cost of the structure. Although originally disputed, the State Tax Assessor does not now contend that the separate $233,832 cost of attaching the new hull structure to the existing hull was taxable.

[¶ 4] Tangible personal property is taxable pursuant to 36 M.R.S .A. § 1861 which makes any item of "tangible personal property" taxable if it would be subject to tax under 36 M.R.S.A. § 1764 (casual sales) or § 1811 (sales). There is no real dispute that the hull structure is...