Carpenteri-Waddington, Inc. v. Commissioner of Revenue Services, CARPENTERI-WADDINGTO

Citation231 Conn. 355,650 A.2d 147
Decision Date22 November 1994
Docket NumberINC,No. 15007,CARPENTERI-WADDINGTO,15007
CourtSupreme Court of Connecticut
Partiesv. COMMISSIONER OF REVENUE SERVICES.

Thomas J. Londregan, New London, with whom, on the brief, was Marguerite C. Driscoll, Mystic, for appellant (plaintiff).

Paul M. Scimonelli, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (defendant).

Before BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

KATZ, Justice.

The issue in this appeal is whether a restaurant that provides dancing privileges and that employs a disc jockey to play prerecorded music and entertain its patrons is a cabaret, as defined by General Statutes § 12-540, 1 and is therefore liable for the cabaret tax imposed by General Statutes § 12-542. 2 Because we conclude that an establishment that offers dancing privileges is a cabaret under General Statutes § 12-540(4), we affirm the judgment of the trial court.

The record establishes the following undisputed facts. The plaintiff owned a bar and restaurant named the Graffiti Lounge that served alcoholic beverages and provided dancing privileges. The establishment employed a performer and disc jockey, Edwin Brown, known as the "Duke of Doo-Wop" (Duke), who gave dancing lessons to the patrons and danced with them on the dance floor to the prerecorded music. Using prerecorded music and various props and costumes, he also mimicked musical performances and entertained the audience by lipsynching. When he was not engaged in these various forms of entertainment, the Duke played the prerecorded music while the patrons danced.

The defendant, the commissioner of revenue services, conducted a sales and use tax audit of the Graffiti Lounge for the period from January 1, 1984, through August 31, 1989, pursuant to General Statutes § 12-548. 3 As a result of the audit, the defendant imposed a deficiency assessment on the plaintiff for unpaid cabaret taxes. 4 Following the defendant's denial of reassessment and the imposition of liability, the plaintiff appealed to the Superior Court, pursuant to General Statutes § 12-554, 5 claiming that the restaurant was not a "cabaret" under § 12-540(4) and, therefore, was not subject to the cabaret tax.

At trial, the plaintiff characterized the Duke's performance as "the music of a single performer alone." Consequently, the plaintiff argued, the Graffiti Lounge fell within the statutory exclusion to the definition of a "cabaret or other similar place" under § 12-540(4), and was, therefore, not subject to the cabaret tax under § 12-542. The trial court concluded, however, that the statute provided an exemption, not an exclusion, and that the plaintiff had not sustained its burden of proving that it was entitled to the exemption. 6 Accordingly, the court upheld the defendant's deficiency assessment. The plaintiff appealed from that decision to the Appellate Court, and this court transferred the appeal to itself pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

In this case, we must examine two statutes: §§ 12-540(4) and 12-542. Section 12-542 imposes a tax on amounts charged for admissions, refreshment, service or merchandise at any cabaret or similar place that furnishes music, dancing privileges or any entertainment for profit during the time that such music, dancing privileges or any other entertainment is provided. It is undisputed that the plaintiff received money while the Duke performed, and that the Graffiti Lounge was in business for profit. Consequently, the plaintiff's operation was taxable under § 12-542 if it was "a cabaret or similar place" as defined by § 12-540(4).

The parties agree that the establishment afforded its patrons "music, dancing privileges or other entertainment." They disagree, however, about how to interpret the phrase "except mechanical music alone or the music of a single performer alone" within the context of § 12-540(4). The plaintiff argues that the exceptions modify the entire preceding phrase. Therefore, the plaintiff contends, if patrons dance to mechanical music or to a single performer, the establishment is not subject to the tax. Because these are exceptions to the taxable class, the plaintiff maintains the establishment is removed from the class before tax liability is ever imposed. We disagree.

We begin our analysis by noting that it is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent. Lauer v. Zoning Commission, 220 Conn. 455, 459-60, 600 A.2d 310 (1991). In seeking to ascertain the legislature's intent when it crafted chapter 225 of the General Statutes, the admissions, cabaret and dues tax statutes, we follow well established principles of statutory construction and "look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." Id., at 460, 600 A.2d 310. No one invariable rule of statutory construction is controlling.

Section 12-542 provides authority to tax all establishments where music, dancing privileges or any other entertainment is furnished for profit, and § 12-540(4) limits the application of the tax by providing an exclusion for "mechanical music alone or the music of a single performer alone." "A court should accord a statutory enactment its plain meaning." State v. Jimenez, 228 Conn. 335, 341, 636 A.2d 782 (1994); Kilpatrick v. Board of Education, 206 Conn. 25, 28, 535 A.2d 1311 (1988). Therefore, to accord § 12-540(4) its plain meaning, we first focus on the word "alone." Webster's defines alone as "exclusive of anyone or anything else: only." Webster's Ninth New Collegiate Dictionary. We see no reason to torture the meaning of "alone." The exclusion at issue pertains to situations where only mechanical music or only the music of a single performer is provided, without anything else. Therefore, if the music is mechanical or that of a single performer, the tax may still be imposed if the establishment in question affords dancing privileges or other entertainment. Moreover, had the legislature intended to exclude establishments that afford their patrons the opportunity to dance to mechanical music or the music of a single performer, it could easily have done so. The provision of dancing privileges remains an indisputable fact of taxable significance that cannot be ignored. 7

The history of § 12-540(4) confirms that the legislature sought to exclude only those establishments where background music is incidental to dining. Following the 1969 enactment of the admission, cabaret and dues tax, the legislature created an exception to § 12-540(4) that applied only to "mechanical music alone." Public Acts 1971, No. 837, § 1. Even as amended, § 12-542 provoked a public protest, and associations representing restaurants and musicians petitioned the legislature to change the law because the tax created a significant rise in unemployment among entertainers who performed alone. Conn. Joint Standing Committee Hearings, Finance, 1971-1972 Sess., pp. 16-18, 43-44, 50-52. In response, the legislature added another exception to § 12-540(4) in 1972: "the music of a single instrumental performer alone." Public Acts 1972, No. 88, § 1. This was proposed specifically to address the problem that "over 140 or 50 musicians ... had lost their jobs as a result of a Cabaret Tax being applied to places where they were furnishing background music." 15 H.R.Proc., Pt. 4, 1972 Sess., p. 1448, remarks of Representative Darius J. Spain. The exception was intended to encourage restaurants to hire musicians who provide background music and was narrowly defined so that the state would suffer a minimal loss of revenue. Id. Following the 1972 amendment, however, the department of revenue services ruled that the performance of a vocalist created a cabaret status. Conn. Joint Standing Committee Hearings, Finance, Pt. 3, 1977 Sess., p. 875. Thereafter, the statute was again amended to exclude "music of a single performer alone" in order to permit an establishment employing a musician who sings to his or her own musical accompaniment to avoid the tax. Public Acts 1977, No. 77-434, § 1; Conn. Joint Standing Committee Hearings, Finance, Pt. 3, 1977 Sess., pp. 855-56, 874. This statutory history reflects the legislature's intent to provide a limited exception to establishments that hire single musicians to entertain their diners. Nowhere is there any indication, however, that the legislature intended to exclude from the definition of "cabaret" places affording dancing privileges to its patrons.

Our interpretation of § 12-540(4) is consistent with the federal government's application of its tax on cabarets. This is significant because the elimination of the federal cabaret tax prompted the enactment of our cabaret tax in order to capture some of the revenue freed up by that elimination.

From 1917 until 1965, the Internal Revenue Service imposed a federal admissions tax on performances and entertainment that exempted establishments providing "mechanical music alone." 26 U.S.C. § 4231(6) (repealed 1965). When, as in this instance, the language used in the federal tax statutes is nearly identical to that before us, we may look to federal law to guide our interpretation of the state statute. Commissioner of Revenue Services v. Peska, 220 Conn. 77, 83, 595 A.2d 348 (1991). We find the evolution of the federal law to be instructive.

The federal admissions tax, enacted during World War I as part of the War Revenue Act, C. 63, 40 Stat. 300, 318 (1917), imposed a tax on amounts paid "for admission to any public performance for profit at any cabaret or other similar...

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