International Business Machines Corp. v. Vermont Dept. of Taxes, 66-74

• Citation: 133 Vt. 269,336 A.2d 158
• Decision Date: 01 April 1975
• Docket Number: No. 66-74,66-74
• Parties: INTERNATIONAL BUSINESS MACHINES CORPORATION v. VERMONT DEPARTMENT OF TAXES.
• Court: United States State Supreme Court of Vermont

Page 158

336 A.2d 158

133 Vt. 269

INTERNATIONAL BUSINESS MACHINES CORPORATION v. VERMONT DEPARTMENT OF TAXES.

No. 66-74.

Supreme Court of Vermont.

April 1, 1975.

Gravel, Shea & Wright, Burlington, for plaintiff.

M. Jerome Diamond, Atty. Gen., and Georgiana O. Miranda, Asst. Atty. Gen., Montpelier, for defendant.

Before BARNEY, C. J., SMITH, KEYSER and DALEY, JJ., and SHANGRAW, C. J. (Ret)., Assigned.

KEYSER, Justice.

This appeal presents for our determination several questions concerning the application of the Vermont Sales and Use Tax, Chapter 233 of Title 32 of the Vermont Statutes Annotated. The central provision throughout is 32 V.S.A. § 9773(2), which reads as follows:

Unless property has already been or will be subject to the sales tax under this chapter, there is hereby imposed on every person a use tax at the rate of 3 per cent for the use within this state on and after June 1, 1969, except as otherwise exempted under this chapter:

(2) Of any tangible personal property manufactured, processed or assembled by the user, if items of the same kind of tangible personal property are offered for sale by him in the regular course of business, but the mere storage, keeping, retention or withdrawal from storage of tangible personal property or the use for demonstrational or instructional purposes of tangible personal property by the person who manufactured, processed or assembled such property shall not be deemed a taxable use by him.

Appellant International Business Machines Corporation, a corporation doing business in the State of Vermont, manufactured certain tangible personal property outside of the State and subsequently brought the property into Vermont to be used here for the first time after June 1, 1969. Since this property was of the kind offered for sale by IBM in the regular course of its business, a use tax was imposed pursuant to the above-cited provision. The tax was computed under 32 V.S.A. § 9774(d) at the rate of 'three per cent of the price at which items of the same kind of tangible personal property are offered for sale by the user.' Having unsuccessfully challenged the assessment before the Vermont Commissioner of Taxes and the Washington Superior Court, IBM now seeks relief relief here. Several arguments have been advanced in support of its position; we shall treat each separately.

I.

Although all of the property under consideration was first brought into Vermont and used after June 1, 1969, some of this property was manufactured before that date and some after. With respect to the equipment manufactured outside of Vermont before June 1, 1969, it is IBM's position that no use tax is due. This argument is premised first upon the theory that the sales and use tax provisions are complementary in nature and that, since no sales tax could be imposed under 32 V.S.A. § 9771 for sales occurring prior to June 1, 1969, it is inconsistent with the legislative purpose to impose a use tax on equipment manufactured before that date. Emphasizing the language of 32 V.S.A § 9773 that no use tax is due where 'property has been or will be subject to the sales tax', IBM maintains that the prospective features of the sales tax, as delineated in the transitory provisions of 32 V.S.A. § 9771, should apply to the imposition of the use tax as well.

Such a theory presumes an identity between the sales and use tax which we are not constrained to recognize. While sales and use taxes often produce a complementary effect, the United States Supreme Court has clearly articulated the conceptual distinction between the two:

A sales tax and a use tax in many instances may bring about the same result. But they are different in conception . . .. A sales tax is a tax upon the freedom of purchase . . .. A use tax is a tax on the enjoyment of that which was purchased. McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330, 64 S.Ct. 1023, 1026, 88 L.Ed. 1304 (1944).

Mr. Justice Douglas, dissenting on other grounds, stated the proposition in more practical terms: 'A use tax may of course have a wider range of application than a sales tax.' Id. at 333, 64 S.Ct. at 1027. See also Union Oil Co. of California v. State Board of Equalization, 60 Cal.2d 441, 34 Cal.Rptr. 872, 386 P.2d 496 (1963); Connecticut Light and Power Co. v. Walsh, 134 Conn. 295, 57 A.2d 128 (1948).

We thus agree with the Supreme Court of Connecticut that whether or not the sales and use tax shall have precisely the same scope and application is for the determination of the Legislature. Connecticut Light and Power Co. v. Walsh, supra 57 A.2d at 131. And on this issue our statutes are clear. A sales tax is imposed where the Vermont sale has occurred on or after June 1, 1969, and a use tax is imposed where the first use of property in Vermont has occurred on or after the same date. In view of the aforementioned conceptual distinction between the two taxes, we find no inconsistency in the imposition of a tax on the use of property manufactued before June 1, 1969, even though the sale of the same piece of property in Vermont before that date would not have resulted in a sales tax assessment.

But IBM argues alternatively that such a statutory scheme results in a discrimination against out-of-state manufacturers in violation of the interstate commerce clause. With this, we simply do not agree. Such an impermissible discrimination could only be found if the out-of-state manufacturer were put in a different position than the in-state manufacturer. Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963). But under the applicable statutory provisions, the two are placed on an equal footing. Both are liable for a use tax if they manufacture equipment before June 1, 1969, but do not use it in Vermont until on or after that date.

The key to taxability is temporal, not geographical-what counts is the time that the property is first used in Vermont. Under 32 V.S.A. § 9773(2), property of the type under consideration here is not deemed 'used' by its mere 'storage, keeping, retention or withdrawal from storage'; thus the in-state manufacturer who manufactures before June 1, 1969, but holds the property in storage until that date or after will be subject to a tax for subsequent use in precisely the same manner as IBM, the out-of-state manufacturer, has been assessed here. Similarly, the in-state and out-of-state manufacturers both escape use tax liability if the property is actually put to use here before June 1, 1969. 32 V.S.A. § 9744(a)(1).

No violation of the interstate commerce clause has been demonstrated. Property manufactured by IBM befofe June 1, 1969, and first used in this State on or after that date, if of the kind offered for sale by IBM in the regular course of its business, is properly subject to the Vermont use tax.

II.

IBM argues that its liability for a use tax under 32 V.S.A. § 9773(2) results in a violation of the interstate commerce clause for another entirely different reason. It maintains that the use tax imposed on property manufactured out-of-state and brought into Vermont for use on or after June 1, 1969, is higher than the tax which an in-state manufacturer must pay. If this were the case, a serious constitutional question would indeed be raised, for 'equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.' Halliburton Oil Well Cementing Co. v. Reily, supra, 373, U.S. at 70, 83 S.Ct. at 1204. See also Gray v. Oklahoma Tax Commission, 379 P.2d 843 (Okla.1963). But the application of this principle begs the preliminary question of whether the Vermont statutory scheme does, in fact, permit such an inequality.

Taxpayer's affirmative response to this inquiry is premised upon the language of 32 V.S.A. § 9773 which provides that no use tax is due where '(the) property has already been or will be subject to the sales tax under this chapter.' Since the in-state manufacturer will have already paid a three per cent sales tax on the component parts under 32 V.S.A. § 9771, it is argued that no use tax can be imposed upon the finished product. The end result is that the in-state manufacturer is taxed only on the component parts used, while the out-of-state manufacturer, who has paid no sales tax on component parts, is taxed under 32 V.S.A. § 9774(d) on the retail selling price of the product which includes not only the cost of the component parts, but also labor and overhead.

This interpretation of the statute is based upon a factual situation in which the in-state manufacturer has purchased all of his parts within the State after June 1, 1969, for any parts purchased before that date or purchased out-of-state would not be subject to the sales tax which taxpayer sees as a basis for use tax exemption. This observation raises serious questions as to how the statute, as construed by IBM, would apply in different factual settings. Without digressing into protracted analyses of various hypothetical situations, we think that it is sufficient to note that under a logical extension of taxpayer's interpretation of the statute an out-of-state manufacturer could buy a single component part in Vermont, such as an electric plug, pay a sales tax on it, and thereby avoid a subsequent use tax here on a million dollars piece of equipment of which that plug is a 'component part'.

A statute is to be construed so as to carry out the intent of the Legislature, and we must presume that no unjust or unreasonable result was intended. In re Preseault, 130 Vt. 343, 348, 292 A.2d 832 (1972). Taxpayer's theory of construction fails under either test. The fundamental difficulty with the IBM interpretation is that it refuses to recognize a manufactured...