Gallacher v. Commissioner of Revenue Services

• Decision Date: 11 February 1992
• Docket Number: No. 14194,14194
• Citation: 221 Conn. 166,602 A.2d 996
• Parties: , 19 Media L. Rep. 2140 Peter GALLACHER et al. v. COMMISSIONER OF REVENUE SERVICES.
• Court: Connecticut Supreme Court

Page 996

602 A.2d 996

221 Conn. 166, 19 Media L. Rep. 2140

Peter GALLACHER et al. v. COMMISSIONER OF REVENUE SERVICES.

No. 14194.

Supreme Court of Connecticut.

Argued Oct. 29, 1991.

Decided Feb. 11, 1992.

Thomas P. Heslin, with whom was Frederick L. Cadman, for appellants (plaintiffs).

Robert L. Klein, Asst. Atty. Gen., with whom, on the brief, was Richard Blumenthal, Atty. Gen., for appellee (defendant).

Before SHEA, CALLAHAN, GLASS, COVELLO, BORDEN, BERDON and SANTANIELLO, JJ.

CALLAHAN, Justice.

This is an appeal from the action of the defendant, the commissioner of revenue services (commissioner), denying the plaintiffs' publications an exemption from the Connecticut use tax as "newspapers" pursuant to General Statutes (Rev. to 1981) § 12-412(f) ¹ and levying use tax assessments. ² The commissioner's assessments were sustained by a state trial referee.

In the Superior Court the parties stipulated to the following pertinent facts. The plaintiffs are the owners and publishers of a weekly publication known as "TV Facts." ³ "TV Facts" contains television listings for the coming week and also contains features found in " 'shoppers' publications,' " including an entertainment world gossip column, a crossword puzzle and an astrology column. "TV Facts" contains no articles of opinion, such as editorials, advocates no opinions, and does not carry items of general news interest. The Middlesex News Corporation of Framingham, Massachusetts, prints "TV Facts" under contract with the various plaintiffs, who, in turn, distribute the publications. "TV Facts" is distributed weekly to places of business in Connecticut such as grocery stores and drug stores where it is available to the general public. No charge is made either to the stores or to the public for copies of "TV Facts." The publications are delivered to the plaintiffs by contract or common carrier and are distributed by the plaintiffs entirely within Connecticut. If "TV Facts" were mailed through the United States Postal Service, it would be accorded second class postal rates, which are applicable to all newspapers, magazines and periodicals.

The commissioner of revenue services assessed use taxes against the plaintiffs pursuant to General Statutes §§ 12-416(1) and 12-411(1). ⁴ The assessments were based on the estimated amount paid by the plaintiffs when they purchased the "TV Facts" publications in Massachusetts for distribution in Connecticut.

The plaintiffs timely petitioned the commissioner for a reassessment pursuant to General Statutes § 12-418(1) and (2) ⁵ and requested an oral hearing. Thereafter, the deputy commissioner, who heard the matter on April 10, 1981, concluded that: (a) the plaintiffs' purchase of the publications in question from the printer was a purchase of tangible personal property, from a retailer for storage, acceptance, consumption or use in this state as those words are used in § 12-411(1) which imposes the use tax; (b) the publications in question do not qualify as "newspapers" within the meaning of § 12-412(f) and, therefore, are not exempt from the use tax; and (c) the imposition of the use tax did not violate the first amendment or the commerce or equal protection clauses of the United States constitution. The deputy commissioner affirmed the assessment.

The plaintiffs filed a timely appeal from the deputy commissioner's ruling to the Superior Court pursuant to General Statutes § 12-422. ⁶ In their appeal, the plaintiffs claimed that their publications were newspapers and that, consequently, they and their publications were exempt from the Connecticut use tax because they were engaged in the "storage, use or other consumption of newspapers circulated among the public." They asserted, therefore, that they were entitled to an exemption from the use tax pursuant to § 12-412(f), and a reversal of the deputy commissioner's decision.

The Superior Court by stipulation referred the plaintiffs' appeal to Hon. Charles S. House, state trial referee, who heard the matter as the trial court. After trial, the trial court reached the following conclusions. "I. The 'TV Facts' publications were ... purchased by the plaintiffs from a retailer in Massachusetts for storage and use in Connecticut and were so stored and used. II. The publications were not 'newspapers' within the meaning of that term as used in General Statutes § 12-412(f).... III. The imposition of the Connecticut use tax on 'TV Facts' publications [did] not violate the plaintiffs' constitutional rights.... IV. The burden of proving any claimed exemption to a tax [was] on the [plaintiffs]." The court affirmed the commissioner's use tax assessments. The plaintiffs subsequently filed a motion for reargument and to open judgment. After reargument, the trial court denied the motion to open judgment. The plaintiffs appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We affirm.

I

On appeal, the plaintiffs have not contested the fact that their publications were "used" in Connecticut within the meaning of § 12-411(1). The plaintiffs do, however, dispute the court's conclusion that their publications were not "newspapers" entitled to a use tax exemption pursuant to § 12-412(f). The plaintiffs argue that the court, in concluding that their "TV Facts" publications were not newspapers, misconstrued this court's decision in Caldor, Inc. v. Heffernan, 183 Conn. 566, 440 A.2d 767 (1981). We disagree.

In Caldor, Inc., the question addressed was whether advertising inserts were "newspapers." This court, after finding that there was no statutory, regulatory or Connecticut case law definition of the word "newspaper," determined that the word should be given its plain, ordinary meaning and should be construed according to its commonly approved usage. Id., at 570, 440 A.2d 767; see Bolt Technology Corporation v. Commissioner of Revenue Services, 213 Conn. 220, 228, 567 A.2d 371 (1989); Rosnick v. Aetna, 172 Conn. 416, 422, 374 A.2d 1076 (1977); Carlson v. Kozlowski, 172 Conn. 263, 269, 374 A.2d 207 (1977). We therefore examined dictionaries and case law from other jurisdictions to ascertain that meaning and usage. Caldor, Inc. v. Heffernan, supra, 183 Conn. at 570-72, 440 A.2d 767; see State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 717, 546 A.2d 830 (1988); Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 813, 88 L.Ed.2d 787 (1986); Wisconsin Department of Revenue v. J.C. Penney Co., 108 Wis.2d 662, 669-71, 323 N.W.2d 168 (1982). We cited two dictionary sources, that defined "newspaper" in similar fashion as " 'a paper that is printed and distributed daily, weekly, or at some other regular and usu. short interval and that contains news, articles of opinion (as editorials), features, advertising or other matters regarded as of current interest....' Webster, Third New International Dictionary; see Black's Law Dictionary (5th Ed.) for a similar definition." Caldor, Inc. v. Heffernan, supra, 183 Conn. at 571, 440 A.2d 767. We also noted that a federal court; Christopher v. American News Co., 171 F.2d 275, 281 (7th Cir.1948); in defining the term "newspaper" had indicated that among the ingredients of a newspaper were "news" and "opinions." Caldor, Inc. v. Heffernan, supra, 183 Conn. at 571, 440 A.2d 767. We further cited several other state and federal cases, all of which included "news" as a component of a newspaper. ⁷ Id., at 571-72, 440 A.2d 767.

In determining whether the advertising inserts at issue in Caldor, Inc., qualified as "newspapers," however, we found it necessary to consider only two "common characteristics" of a newspaper that we said were contained in all the definitions. Id., at 572, 440 A.2d 767. Those characteristics were: "(1) It is published at short, regular intervals, usually not exceeding a week, and (2) it routinely reports a myriad of topics so that it appeals, at least in part, to a wide spectrum of the general public." Id. Because in Caldor, Inc., there was no stipulation or evidence that the advertising inserts in question appeared at short, regular intervals and because the inserts contained only information regarding Caldor sale items, it was not necessary to discuss other facets of the definition of a newspaper. We did not, however, eschew the dictionary definitions of the word "newspaper" or those articulated by the courts cited in the opinion, all of which included news as an essential ingredient of what is commonly understood to be a newspaper.

In fact, not surprisingly, the cases and authorities generally indicate that news is commonly thought to be a necessary component of a newspaper. ⁸ The Supreme Court of Tennessee, faced with the issue of what constitutes a "newspaper," agreed that the criteria in the regulations promulgated by that state's commissioner of revenue comported with the customarily accepted meaning of the term and determined that, in order to qualify for exemption from the sales and use tax as a "newspaper," a publication must contain " 'general news of the day, information of current events, [or] news of importance and of current interest to the general public.' " Shoppers Guide Publishing Co. v. Woods, 547 S.W.2d 561, 563 (Tenn.1977); Memphis Shoppers News, Inc. v. Woods, 584 S.W.2d 196, 199 (Tenn.1979). Other courts confronted with the question, "What is a newspaper?" have formulated comparable common sense answers. "[P]ublications and pennysavers such as the petitioner's which do not contain news articles or expressions of opinion are generally not newspapers within the meaning of the Tax Law...." Scotsmen Press v. Tax Appeals Tribunal, 165 A.D.2d 630, 634, 569 N.Y.S.2d 991 (1991). The applicable test to determine whether a publication is a newspaper is one of " 'common understanding.' " If "[t]here are no news articles or expressions of opinion," a publication is not a newspaper. Twin...