Kennedy v. State Board of Assessment and Review

• Citation: 276 N.W. 205,224 Iowa 405
• Decision Date: 23 November 1937
• Docket Number: 44068.
• Parties: KENNEDY v. STATE BOARD OF ASSESSMENT AND REVIEW.
• Court: United States State Supreme Court of Iowa

276 N.W. 205

224 Iowa 405

KENNEDY v. STATE BOARD OF ASSESSMENT AND REVIEW.

No. 44068.

Supreme Court of Iowa.

November 23, 1937

Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.

This case was in the district court on appeal from ruling of Board of Assessment and Review. Plaintiff purchased fertilizers, on which he was charged sales tax prior to the enactment of chapter 196 of the 47 General Assembly. The Board of Assessment and Review held the plaintiff liable on the sales tax, and refused to order it returned to plaintiff. In the district court the appeal was dismissed.

Affirmed.

E. B Stillman, of Clear Lake, for appellant.

John H. Mitchell, Atty. Gen., and Clair E. Hamilton, Sp. Asst Atty. Gen., for appellee.

PARSONS, Justice.

Plaintiff in this case filed a petition in the district court of Cerro Gordo county, Iowa, setting forth that on the 19th day of May, 1936, he filed with the State Board of Assessment and Review his application asking for refund of sales tax paid for fertilizer, as set out in his application; that this application was presented to the board, and on the 28th of May, 1936, an order was entered by said board, in which the application was denied, and on the same date plaintiff appealed from the decision and order of the State Board of Assessment and Review; that he urges before the court the same reasons for refund of the tax, $91.89, which was illegally demanded of him, and which he, through error and mistake, paid as sales tax, and for all these reasons he asked that he be given refund of the taxes so paid; then followed prayer for decree.

The facts are that Kennedy, the appellant, purchased from the local representative of Swift Company Fertilizer Works 88,000 pounds of Swift's Red Steer Fertilizer, at the price of $59.20 per ton, or a total of $2,604.80; and on April 6, 1935, he purchased of the same company 74,000 pounds of the same fertilizer at $42.60 per ton, or a total of $1,576.20; and on April 6, 1935, he purchased from the same company 10,000 pounds of another fertilizer at $26.70 per ton, or a total of $133.50; that he paid all together $4,594.50 for this fertilizer, and upon this amount he paid a 2 per cent. sales tax, or the sum of $91.80.

Plaintiff set out these matters before the Board of Assessment and Review, and that body refused his application, and he then appealed to the district court of Cerro Gordo county, Iowa.

It appears from the stipulations in the case that the plaintiff is a resident of Cerro Gordo County; that he is an acreage grower of potatoes, onions, and other vegetables, and that he purchased the fertilizer in the amounts set forth in his application filed before the board; that the fertilizer was used on the ground on which plaintiff raised potatoes, onions, etc.; then he set forth the constituent elements of the fertilizers which was all used on the land in the spring of 1935; he set forth the amount of potatoes and other vegetables taken from the land. There was some testimony in the case by various parties as to the use of these fertilizers.

The theory of the plaintiff was that he purchased these fertilizers to use in the ground, and they were absorbed in the potatoes, and other vegetables, and he thereby made himself a processor.

The case was tried to the district court of Cerro Gordo county, Hon. W. H. Kepler presiding, and after the case was fully heard the court entered a decree dismissing the appeal, at plaintiff's costs. From that the plaintiff appealed to this court.

There are two sections of the Code involved particularly in this appeal, section 6943-f39 and section 6943-f38. The court, after hearing the facts, entered a decree which covers about four pages of the abstract, and in part is as follows:

" Section 6943-f39 of the Code states: ‘ There is hereby imposed beginning the 1st day of April, 1934, a tax of two per cent upon the gross receipts from all sales of tangible personal property sold at retail in the State to consumers or users.’

Section 6943-f38 subd. c provides: ‘ Retail sale or sale at retail means the sale to a consumer or to any person for any purpose, other than for processing or for resale, of tangible personal property, etc.’

The question at issue in this case is whether the use of fertilizer for the promotion of the growth of plants, some of the elements of the fertilizer going into the plants themselves, is a processing of tangible personal property.

Webster in his International Dictionary, Second Edition, 1934 defines processing as follows: ‘ To subject to some special process or treatment.’ ‘ To subject (esp. raw material) to a process of manufacture, development,...