Gressel Produce Co., Inc. v. Kosydar

Decision Date06 June 1973
Docket NumberNo. 72-917,72-917
Citation297 N.E.2d 532,34 Ohio St.2d 206
Parties, 63 O.O.2d 314 GRESSEL PRODUCE CO., INC., et al., Appellees, v. KOSYDAR, Tax Commr., Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. The terms 'manufacturing' or 'processing,' as used in R.C 5739.01(E) (2), mean the transformation or conversion of material or things into a different state or form that in which they originally existed.

2. An operation by which the value of materials or things is enhanced, without an accompanying change in the state or form of such property, does not constitute 'processing,' as that term is used in R.C 5739.01(E)(2). (Northwestern Ohio Poultry Ass'n v. Schneider, 2 Ohio St.2d 34, 205 N.E.2d 905, overruled.)

Gressel Produce Co., Inc., and Phillip Gressel, Gressel Produce Co., appellees herein, 1 were engaged in the business of cleaning, candling, grading, oiling and packaging eggs for sale to retailers. During this operation, appellees utilize material handling equipment and packaging material, which items have been the subject of a sales and use tax assessment by the Tax Commissioner.

Appellees acquire their eggs from poultry-farm producers using their own trucks to transport the eggs, in cases, to their place of operation. The egg cases are then placed in a cooler, where they generally remain until the next day. They are then placed on a conveyor, where an operator manually removes the eggs from the cases and places them on an automatic loader. The eggs proceed through an automatic washer, which utilizes an aqueous solution of soap, water softener, salt, chlorine and defoamer. A coating of mineral oil is then applied to replace the natural oil which was removed from the eggs during the washing process. The interior and exterior quality of each egg is then examined by subjecting the eggs to a 'candling' process.

Only those eggs considered 'Grade A' or better pass beyond this point, each being sorted automatically as to size. A United States government grader spot-checks the eggs for grading. The eggs are then packaged in one-dozen cartons or three-dozen cradle packs. These packages are finally placed into 30-dozen egg cases for shipment to retailers.

Appellees appealed from the Tax Commissioner's assessment to the Board of Tax Appeals. Feeling bound to follow the decision in Northwestern Ohio Poultry Ass'n v. Schneider (1965), 2 Ohio St.2d 34, 205 N.E.2d 905, the board held that appellees were engaged in 'processing,' and reversed the assessment order of the Tax Commissioner.

The causes are now before this court upon an appeal by the Tax Commissioner, pursuant to R.C. 5717.04.

Mayer, Tingley, Hurd & Emens, Dwight I. Hurd, and John S. Lowe, Columbus, for appellees.

William J. Brown, Atty. Gen., Dwight C. Pettay, Jr., and John C. Duffy, Jr., Columbus, for appellant.

STERN, Justice.

The issue before us is whether the operation performed by appellees constitutes 'processing,' as that term is used in R.C. 5739.01(E)(2). 2 We hold that it does not.

At the outset, it must be noted that at the time of this court's decision in Northwestern Ohio Poultry Ass'n v. Schneider (1965), 2 Ohio St.2d 34, 205 N.E.2d 905, R.C. Chapter 5739 did not provide a definition of the word 'processing' as used in R.C. 5739.01(E)(2). Accordingly, this court upon authority of Kroger Grocery & Baking Co. v. Glander (1948), 149 Ohio St. 120, 77 N.E.2d 921, 3 and France Co. v. Evatt (1944), 143 Ohio St. 455, 55 N.E.2d 652, held that the operation in that case constituted 'processing,' within the meaning of R.C. 5739.01, entitling the taxpayer to an exception from taxation for items used or consumed in such operation.

It is conceded by all parties herein that the operation in Northwestern Poultry, supra, was, for purposes of this appeal, identical to the operation of appellees herein. However, subsequent to the Northwestern decision, the General Assembly enacted R.C 5739.01(S), which provides:

"Manufacuring' or 'processing' means the transformation or conversion of material or things into a different state or form from that in which they originally existed * * *.' (Emphasis added.) Accordingly, it is this definition which must now be applied in resolving the issue before us.

It is appellees' contention that the codification of this definition of 'processing' does not constitute a change in the law subsequent to its enactment, since, in effect, it is identical to the definition set forth by this court in National Tube Co. v. Glander (1952), 157 Ohio St. 407, 105 N.E.2d 648, which pronouncement preceded the decision in Northwestern Poultry, supra.

Paragraph four of the syllabus in National Tube Co. v. Glander provides, as follows:

'The terms, 'manufacturing' and 'processing,' as used in Sections 5546-1 and 5546-25, General Code (R.C. 5739.01 and 5741.01), imply essentially a transformation or conversion of materials or things into a different state or form from that in which they originally existed-the actual operation incident to changing them into marketable products.'

The emphasis, both in that paragraph of the syllabus and in R.C. 5739.01(S), focuses upon whether there has been a 'transformation or conversion' into a different 'state or form.' The additional language of that quoted paragraph, pertaining to changing the items into 'marketable products,' did not serve to broaden the definition of 'processing.' It merely specified that the change in 'state or form' must occur during, and not before or after, the actual operation being performed. Accordingly, we agree with appellees that no change in the definition of 'processing,' as used in R.C. 5739.01(E)(2), has occurred since Northwestern Poultry, supra.

However, Northwestern Poultry did not rely upon National Tube, supra, for its holding, and although we must presume that the court did consider the syllabus set forth therein, we must also examine the case of France Co. v. Evatt, supra, 143 Ohio St. 455, 55 N.E.2d 652. The issue therein was whether 'processing' was taking place during the handling of stone, after it had been quarried, removed from the quarry, crushed, and screened. The specific operation in question involved the removal of the screened product to appellee's yard and the reassembling of the product in form and proportions as required by purchasers, preparatory to and including loading for shipment.

The court in a four-to-three decision, held that that specific factual situation indicated that during the period of operation in question the products were subjected to 'draining, cleaning, blending and reassembling * * * to comply with the required specifications of the purchasing trade before they are available and ready for market and sale.' The majority concluded that the question involved was one of mixed law and fact, and that therefore they would not disturb the decision of the Board of Tax Appeals.

The dissenting opinion by Judge Edward S. Mathias emphasized the existing dispute as to whether 'processing' should be limited solely to a change in state or form, or whether it should include any property which enhances the value of the property so as to produce multiplied tax revenues. In his dissent, at page 460, 55 N.E.2d 652, Judge Mathias concluded that if there had been any processing it would have been accomplished by the stone-crushing machinery, which process was not involved in the consideration therein of tax exemption.

Justice Zimmerman, who joined in the dissent in France Co., supra, later authored the opinion in National Tube Co., supra, 157 Ohio St. 407, 105 N.E.2d 648, in which this court defined the term 'processing.' In view of the dissent in France Co., supra, 4 it must be concluded that the language used in National Tube Co., supra, was not intended to imply that an operation which merely enhanced the value of the product without producing a change in state or form constituted processing. Indeed, that case, like France Co., involved the movement of minerals, and Justice Zimmerman concluded, at page 410, 105 N.E.2d at page 650, that 'no apparent change takes place in the original materials, and by the described operations, no actual manufacturing or rocessing of the materials into finished form ready for sale begins.' (Emphasis added.) In that case, there was no factual dispute as to whether processing had yet begun, and the emphasis was clearly placed upon whether a change in state or form had occurred.

From the above analysis, we conclude that ...

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  • Collingwood Grain, Inc., Matter of
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    ...and preparatory to the manufacturing or processing of the materials. 157 Ohio St. at 410-11, 105 N.E.2d 648. Gressel Produce Co. v. Kosydar, 34 Ohio St.2d 206, 297 N.E.2d 532 (1973), reached a similar result. The Produce Co. court stated, "[M]ere enhancement of value of a product, absent a ......
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