K Mart Corp., Inc. v. South Dakota Dept. of Revenue

• Decision Date: 07 March 1984
• Docket Number: No. 14283,14283
• Citation: 345 N.W.2d 55
• Parties: K MART CORPORATION, INCORPORATED, Appellant, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Appellee.
• Court: South Dakota Supreme Court

Page 55

345 N.W.2d 55

K MART CORPORATION, INCORPORATED, Appellant, v. SOUTH DAKOTA DEPARTMENT OF REVENUE, Appellee.

No. 14283.

Supreme Court of South Dakota.

Argued Jan. 17, 1984.

Decided March 7, 1984.

John S. Lovald of Duncan, Olinger, Srstka, Lovald & Robbennolt, P.C., Pierre, for appellant.

Gene R. Woodle, Asst. Atty. Gen., Pierre, for appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

WOLLMAN, Justice.

K Mart appeals from a judgment affirming an order of the South Dakota Department of Revenue (Department) requiring payment of use tax on advertising supplements for the period April 1974, through December 1977. We affirm.

The corporate and general office for K Mart is located at Troy, Michigan. K Mart was audited by an auditor for the Multistate Tax Commission for sales and use tax for the audit period of April 1, 1974, through December 31, 1977. During that time period there were K Mart outlets in Aberdeen, Rapid City, and Sioux Falls, South Dakota.

K Mart is involved in two different types of advertising programs that relate to newspaper supplements. One program, the national roto program, is participated in by all the K Mart outlets. Mat printouts are produced in Troy, Michigan, ¹ and sent to a publisher with whom K Mart contracts for twenty-six or twenty-seven weeks out of the year to produce the four-color supplement used in the national roto program. The publisher, which is located in a state other than Michigan or South Dakota, receives a distribution list from K Mart which sets forth newspapers to which the publisher is to send particular national rotos.

The other program, the regional roto program, involves a two-color supplement that is printed locally. These rotos are distributed a maximum of between twenty-six or twenty-seven times a year and are intended to take up the slack when the national roto is not printed. The contract to print these regional rotos is between K Mart and the printer. The K Mart stores are free to elect not to use the regional rotos.

During the period of the audit, K Mart had advertising contracts with the Sioux Falls Argus Leader, the Rapid City Journal, and the Aberdeen American News for the delivery of the national and regional rotos as a part of their newspapers on an agreed day of each week. The Argus Leader discounted costs incurred by K Mart for printing and shipping the advertising supplements from the rate it charged for advertisements appearing within the sections printed by the newspaper. The newspapers had editing rights over the advertising.

The advertising and market director for the Sioux Falls Argus Leader testified that after the supplements are shipped by the printer to his newspaper's docks, the mail room personnel incorporate the supplements within the newspaper. He also testified that "by and large" the K Mart advertising supplements are distributed with the Argus Leader on Wednesdays and Sundays. The Argus Leader distributes advertising supplements for other firms on these days, and the single copy sales are substantially greater on these days as compared to other days of the week. Exhibits of representative national and regional rotos bear a newspaper logo preceded by the words "supplement to."

In addition to the rotos shipped to be inserted into newspapers, 500 rotos are shipped by the printer directly to each full-size K Mart store and 250 rotos are shipped to each smaller K Mart store. K Mart does not contend that these advertisements should not have been taxed.

Following a hearing, Department found a deficiency of $12,774, which was assessed against K Mart as a use tax pursuant to SDCL 10-46-2 which provides:

An excise tax is hereby imposed on the privilege of the use, storage, and consumption in this state of tangible personal property purchased on or after July 1, 1939, for use in this state at the same rate of percent of the purchase price of said property as is imposed by Secs. 10-45-2 and 10-45-3 or amendment which may hereafter be made thereto.

Of the amount assessed, $8,525 represented the tax for out-of-state production of national roto advertising materials and $4,249 represented the tax for in-state production of regional advertising rotos.

K Mart contends that it is entitled to exemption from sales or use tax pursuant to the exemption for newspaper sales, SDCL 10-45-12.1, and the exemption for the use of newspaper print, SDCL 10-45-9. We do not agree.

Some jurisdictions have held that advertising supplements are an integral part of a newspaper and as such are entitled to the same exemption from sales or use tax as is the remainder of the newspaper. See, e.g., Eagerton v. Dixie Color Printing Corp., 421 So.2d 1251 (Ala.1982); Sears, Roebuck and Co. v. State Tax Comm'n, 370 Mass. 127, 345 N.E.2d 893 (1976); Daily Record Co. v. James, 629 S.W.2d 348 (Mo.1982); see also Friedman's Express, Inc., v. Mirror Transp. Co., Inc., 71 F.Supp. 991 (D.N.J.1947), aff'd, 169 F.2d 504 (3d Cir.1948) (comic supplement is "newspaper" within the exemption clause of the Interstate Commerce Act). Other courts have held that advertising supplements do not fall within the newspaper exemption from sales or use tax. See, e.g., Ragland v. K Mart Corp., 274 Ark. 297, 624 S.W.2d 430 (1981); Caldor, Inc. v. Heffernan, 183 Conn. 566, 440 A.2d 767 (1981); Wisconsin Dep't of Revenue v. J.C. Penney Co., 108 Wis.2d 662, 323 N.W.2d 168 (1982).

Statutes exempting property from taxation should be strictly construed in favor of the taxing power. Application of Veith, 261 N.W.2d 424 (S.D.1978). The words in such statutes should be given a reasonable, natural, and practical meaning to effectuate the purpose of the exemption. Northwestern Pub. Serv. Co. v. Housing and Redev. Comm'n, 320 N.W.2d 515 (S.D.1982).

Although the taxation statutes do not define "newspaper," ² several definitions can be found in the case law of other jurisdictions. After reviewing several definitions, the Supreme Court of Connecticut determined:

All the definitions identify two common characteristics of a newspaper: (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.

Caldor, supra, 440 A.2d at 770-71...