Browning-Ferris Industries v. Wi Dept. of Revenue, 00-3091

• Court: Court of Appeals of Wisconsin
• Writing for the Court: PER CURIAM
• Citation: 246 Wis.2d 990,632 N.W.2d 123
• Parties: This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62. Browning-Ferris Industries of Wisconsin, Inc., Petitioner-Appellant, v. Wisconsin Department of Revenue, Respondent-Respondent.STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV
• Docket Number: 00-3091
• Decision Date: 28 June 2001

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. §808.10 and Rule 809.62.

Browning-Ferris Industries of Wisconsin, Inc., Petitioner-Appellant,
v.
Wisconsin Department of Revenue, Respondent-Respondent.

No. 00-3091

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

June 28, 2001

APPEAL from an order of the circuit court for Dane County: MARYANN SUMI, Judge. Affirmed.

Before Dykman, P.J., Vergeront and Roggensack, JJ.

¶1. VERGERONT, J.

This appeal concerns the interpretation of Wis. Stat. §77.54(26m) (1999-2000),(FN1)which exempts from Wisconsin sales and use tax certain waste reduction and recycling machinery and equipment. The Tax Appeals Commission decided that Browning-Ferris Industries, Inc.'s compactors, bins, and containers, which the company purchased and which were used by its customers to reduce the size of or to collect disposed items, and motor vehicles and related items used to transport waste and recyclables were not exempt under subsec.(26m).(FN2) The circuit court affirmed that decision. Browning-Ferris appeals, contending that these items are exclusively and directly used in waste reduction activities and are therefore exempt. We conclude the commission's interpretation is entitled to at least due deference, and, applying that standard of we review, we conclude the commission's interpretation is reasonable and Browning-Ferris has not offered one that is more reasonable. Therefore, we affirm.

BACKGROUND

¶2. The commission made the following factual findings based on stipulated facts. Browning-Ferris was primarily engaged in the business of collecting discarded materials from its Wisconsin residential and commercial customers and transporting those discarded materials to landfills, recycling centers or material recycling facilities. The types of items collected and hauled included trash, garbage, and recyclables. Browning-Ferris hauled waste products with no value to landfill sites for disposal. Browning-Ferris hauled recyclables that could be reused in some capacity to recycling centers and material recycling facilities, not to landfills. Separate bins and trucks were used to collect and transport recyclable items from those used to collect and transport non-recyclables.

¶3. Browning-Ferris leased or sold compactors to some of its customers. It also provided its customers, without additional charge, with bins, dumpsters, and containers. The customers deposited their recyclable items in bins, dumpsters, and containers that were specifically labeled to collect recyclable items, and their non-recyclable waste items in dumpsters that were specifically labeled to collect waste materials. Browning-Ferris picked up and transported the recyclable items to either recycling centers or material recycling facilities and the non-recyclable items to landfills.

¶4. The tangible personal property items at issue are these compactors, bins, and containers, and motor vehicles(FN3) used to transport recyclables to processing facilities, as well as various related items. Browning-Ferris paid no sales or use tax when purchasing this tangible personal property.

¶5. The Wisconsin Department of Revenue (DOR) issued a Notice of Field Audit Action and a Notice of Amount Due against Browning-Ferris, assessing sales and use tax, plus interest, on the disputed items for the period October 1, 1989 through September 30, 1993. Browning-Ferris filed a petition for redetermination objecting to the assessment, and when that was denied, it filed a petition for review with the commission.

¶6. In its decision affirming the assessment, the commission referred toDOR v. Parks-Pioneer Corp., 170 Wis. 2d 44, 487 N.W.2d 63 (Ct. App. 1992), in which we focused on the language in Wis. Stat. §77.54(26m) that the waste reduction and recycling machinery or equipment be "exclusively and directly used for recycling activities." We held that the lugger and roll-off boxes Parks-Pioneer used to collect scrap metal from its suppliers' premises, to transport it to its premises, and...