Bonnar-Vawter, Inc. v. Johnson

• Decision Date: 25 July 1961
• Docket Number: INC,BONNAR-VAWTE
• Parties: v. Ernest H. JOHNSON, State Tax Assessor.
• Court: Maine Supreme Court

Page 141

173 A.2d 141

157 Me. 380

BONNAR-VAWTER, INC. v. Ernest H. JOHNSON, State Tax Assessor.

Supreme Judicial Court of Maine.

July 25, 1961.

Samuel W. Collins, Jr., Rockland, Boyd L. Bailey, Bath, for appellant.

Ralph W. Farris, Sr., Richard A. Foley, John W. Benoit, Augusta, for appellee.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

SIDDALL, Justice.

On Report. This is an appeal by complaint from an assessment by the State Tax Assessor, hereafter called the appellee, against Bonnar-Vawter, Inc., hereafter called the appellant, of a use tax, interest, and penalty arising out of the use within the State of Maine of certain printing plates. The case is reported from the Superior Court for decision upon the complaint, answers, and agreed statement of facts. The total tax assessment, including interest and penalty, amounts to $5,253.33.

The stipulations disclose that the appellant is a Delaware corporation having offices in Rockland, Maine, and Keene, New Hampshire. It is engaged in the business of printing in Rockland. In its plant are rotary presses, which consist of rotating drums on which type is mounted. The printing plates, for the use of which a tax has been assessed, constitute the type. These plates are sheets of rubber type with brass fillings designed to mount them to rotary presses. The metal backing is curved and fitted for the appellant's presses. Opposite the drum is a steel impression cylinder. Paper is fed, in a continuous strip, between the rotating drum and the impression cylinder, permitting a continuous repeated imprint upon the paper by the type mounted on the drum. The plates are manufactured in New Hampshire by Photoplate, Incorporated, hereafter called Photoplate, a wholly-owned subsidiary of the appellant. The President, Board of Directors, and other officers are the same in the two companies. The two corporations maintain separate books of account and separate corporate balance statements, and also file separate Federal Income Tax returns. The employees engaged in the manufacture of the plates are employed by Photoplate.

When the appellant receives a printing order, it orders the necessary plates from Photoplate. Photoplate then orders from various supply houses the raw materials, i. e., rubber and brass, to make the plates. The raw materials are shipped by the supplier consigned to Photoplate. No agency agreement exists between the appellant and Photoplate in respect to the order for raw materials, and they are not purchased by Photoplate as the disclosed agent of the appellant. When received, these materials are carried as items of inventory on the books of Photoplate. The invoice when received is approved and forwarded by Photoplate to the appellant who enters an 'account payable--Trade' on its books and makes payment to the vendor, and then enfers an 'account receivable--Photoplate' on its books. Photoplate enters an 'account payable--Bonnar-Vawter' on its books. The raw materials are then fabricated by Photoplate into printing plates. The appellant pays the employees of Photoplate, and the labor charge is entered on Photoplate's books as an 'account payable--Bonnar Vawter' and the labor charge is entered on the appellant's books as an 'account receivable-Photoplate.' The completed plates are shipped to the appellant in Rockland upon completion. Photoplate bills the appellant monthly for the plates so shipped. The monthly invoice shows the total amount of the charges for the particular month covered by the invoice, and contains the words 'Sold to Bonnar Vawter, Incorporated, 93 Dunbar Street, Keene, New Hampshire.' The invoice figure is not determined in advance, and varies as expenses and overhead vary. During a portion of the taxable period the monthly charge for the plates was determined by adding 300% to 500% of the labor costs to the actual cost of labor. It was stipulated that the 300% to 500% of labor costs was to cover materials, overhead, depreciation, taxes, etc. During the remainder of the taxable period 25% of labor and material costs were added to the actual costs of labor and material. The 25% of labor and material costs was charged to cover overhead, depreciation, taxes, etc. The price formula was set up in such a manner as to permit Photoplate to break even and not make a profit on the transaction.

When the printed plates are received by the appellant, the entry of 'account receivable--Photoplate' is cancelled on the appellant's books, and the entry of 'account payable--Bonnar Vawter' is cancelled on the books of Photoplate.

After the plates have been used to make up the customer's order, they are detached from the press and returned to New Hampshire for storage against a possible re-order by the same customer. About 34% of the plates are never used again. About 30% are used with some slight alteration. About 30% are used with major alterations and about 5% are used again with no alteration.

One of the contentions of the appellant is that the transactions between it and Photoplate, as disclosed by the specifications, did not constitute taxable sales, because the plates were not sold to the appellant in the ordinary course of the seller's business within the meaning of the tax statute. As bearing on its contention the appellant argues (1) that Photoplate was not maintained with any object of gain, benefit, or advantage, either direct or indirect; (2) that Photoplate did not have the general property in the plates, and that the transfer of the plates was in the nature of the termination of a bailment; (3) that the purchase of the plates was the purchase of services and not of tangible personal property; (4) that the nature of the transactions between the two companies was such that Photoplate was operated as a department of the appellant.

The pertinent statutory provisions applicable to appellant's contentions are as follows:

'Use tax.--A tax is imposed on the storage, use or other consumption in this state of tangible personal property, purchased at retail sale * * * at the rate of 3% of the sale price.' R.S.1954, Chap. 17, Sec. 4, as amended.

"Retail sale' or 'sale at retail' means any sale of tangible personal property, in the ordinary course of business, for consumption or use, or for any purpose other than for resale, except resale as a casual sale, in the form of tangible personal property, * * *.' R.S.1954, Chap. 17, Sec. 2 as amended.

"Business' includes any activity engaged in by any person or caused to be engaged in by him with the object of gain, benefit or advantage, either direct or indirect.' R.S.1954, Chap. 17, Sec. 2

"Use' includes the exercise in this state of any right or power over tangible personal property incident to its ownership when purchased by the user at retail sale.' R.S.1954, Chap. 17, Sec. 2 We now discuss appellant's claim that Photoplate was not engaged in an activity with the object of gain, benefit, or advantage, either direct or indirect.

It will be noted that the statute does not use the word 'profit.' The statute used the words 'gain, benefit or advantage, either direct or indirect.' These words have a broader meaning than that of the word 'profit.' One may engage in a business activity with an object of 'gain, benefit or advantage' and not necessarily for profit. State ex rel. City Loan & Savings Co. of Wapakoneta v. Zellner, 133 Ohio St. 263, 13 N.E.2d 235, 238; Union League Club v. Johnson, 18 Cal.2d 275, 115 P.2d 425, 426.

The appellant cites the case of Valier Coal Company v. Department of Revenue, 11 Ill.2d 402, 143 N.E.2d 35, 64 A.L.R.2d 763. In that case an attempt was made to assess a retailer's occupation tax against a wholly owned subsidiary of the Chicago, Burlington and Quincy Railroad Company. By an order of the Illinois Public Utilities Commission the subsidiary was prohibited from selling its product to the general public, and could sell to the parent company only at a price not exceeding the actual cost of production, plus an amount sufficient to pay interest on the investment and to provide a sinking fund. The court held that the subsidiary was in effect forbidden to engage in business, and that the right to sell to the general trade and to make a profit or realize a gain are ordinary incidents of being engaged in retail business, although the imposition of a tax does not depend upon whether a profit is actually realized. In the instant case Photoplate was not prohibited from making a profit or gain, or from selling to the general public. The failure to realize a profit from its transactions, or to deal with the general public, was not by prohibition but by choice.

The gain, benefit or advantage may be large or small, direct or indirect. Although no profit was made by Photoplate from its transactions with the appellant, it is not difficult to discover a direct or indirect gain, benefit, or advantage therefrom to Photoplate. The charges made by Photoplate were made to cover, in addition to the cost of labor and materials, 'overhead, depreciation, taxes, etc.' We must assume from the nature of the plates that Photoplate was the owner of equipment necessary in their production. This equipment was subject to depreciation. There was necessarily some overhead in the maintenance of the corporation. Apparently there was a tax liability of some sort. The charges made to the appellant, and paid for by it, provided revenue to Photoplate sufficient to cover its overhead, taxes, and depreciation, and thereby, to that extent at least, Photoplate benefited from its transactions with the appellant. We must conclude that Photoplate was engaged in an activity with the object of gain, benefit, or advantage, within the meaning of the word 'business' as defined in the statute.

The appellant claims that the property interest of Photoplate in the plates was not substantial enough so that the transfer to the appellant constituted a 'sale,' and that the transfer of the...