Miller Brewing Co. v. Korshak

• Decision Date: 23 May 1966
• Docket Number: No. 39529,39529
• Citation: Miller Brewing Co. v. Korshak, 219 N.E.2d 494, 35 Ill.2d 86 (Ill. 1966)
• Parties: MILLER BREWING COMPANY, Appellant, v. Marshall KORSHAK, Director of Revenue, Appellee.
• Court: Illinois Supreme Court

Page 494

219 N.E.2d 494

35 Ill.2d 86

MILLER BREWING COMPANY, Appellant, v.Marshall KORSHAK, Director of Revenue, Appellee.

No. 39529.

Supreme Court of Illinois.

May 23, 1966.

Rehearing Denied Sept. 21, 1966.

Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, Chicago (Frank H. Uriell and Paul A. Teschner, Chicago, of counsel), for appellant.

William G. Clark, Atty. Gen., Springfield (Richard A. Michael and John J. O'Toole, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

The plaintiff, Miller Brewing Company, a Wisconsin corporation licensed to do business in Illinois, brought this action against the Director of Revenue to enjoin him from taking any steps to assess against and collect from the plaintiff any use tax or service use tax, or penalties, with respect to certain items of tangible personal property for the period from January 1, 1961, to May 31, 1964, on the ground that such taxes would be illegal and unconstitutional.The defendant's motion to dismiss plaintiff's amended complaint was granted and plaintiff appeals.The revenue and constitutional questions are involved.

We shall consider first the allegations of the amended complaint that relate to the notice of proposed use tax assessment that was served upon the plaintiff.The plaintiff manufactures 'malt beverage products' in Wisconsin and sells them directly to 'independent wholesale distributors' who, in turn, sell to retailers.It does not sell any of its products directly either to retailers or to consumers.'In the ordinary course of its business plaintiff has found it advisable to promote a demand for its malt beverage products among ultimate consumers by providing for the manufacture and fabrication of certain 'point-of-sale' advertising material (hereinafter sometimes referred to as 'POS advertising items') such as interior neon signs, clocks and other devices intended to encourage a demand for the products of Plaintiff among those who congregate at the point of ultimate sale of Plaintiff's products.'The fabricators retained the items until Miller sent them a 'requisition drop shipping order' directing them where to ship the items.In the period relevant here, Miller paid a total of $592,879.19 for items shipped to Illinois wholesalers.Of this total, $83,407.99 was paid to Illinois fabricators; the bulk of the remainder was paid to fabricators located in Minnesota and Wisconsin.

The amended complaint alleged that 'Plaintiff did not intend to acquire title to or property in any of said POS advertising items' except those shipped to its Wisconsin warehouse.It continued:

'14.2.Except for the Wisconsin warehouse items, none of said POS advertising items shipped to the Illinois wholesale distributors had ever been inventoried by the Plaintiff or entered upon the books of account of the Plaintiff.

'14.3.Except for the aforementioned Wisconsin warehouse items, Plaintiff was not named, either as consignor or otherwise, upon any of the bills of lading or other shipping documents which accompanied the respective shipments.

'14.4.The fabricators and suppliers delivered the POS advertising items to independent carriers, shipping charges prepaid, for delivery to the Illinois Wholesale distributors.

'14.5.As soon as the fabricators and the suppliers delivered the said POS advertising items to the respective carriers, Plaintiff became legally obligated to pay said fabricators and suppliers for the cost of fabrication of said POS advertising items and to reimburse them for freight charges which had been prepaid by them.

'14.6.The respective suppliers were named as consignors of all shipments and the several Illinois wholesale distributors were named as consignees.Risk of loss during shipment was in the consignees and all claims for damage were to be made by the consignees.

'14.7.Title to the POS advertising items passed from the suppliers to the Illinois wholesale distributors when said items were delivered to the respective carriers at the points of origin of the shipments.

'14.8.If, contrary to its intent, the Plaintiff at any time acquired any ownership, title or interest in and to any of said POS advertising items other than the Wisconsin warehouse items, any such ownership, title or interest was relinquished by Plaintiff no later than the time when said POS advertising items were placed with carriers at the respective points of origin of the respective shipments.'

The complaint further alleged that prices to the wholesalers 'were not increased to cover the cost to Plaintiff of the POS advertising items;' that 'Plaintiff did not direct or control any such distributors in the use or distribution of said items nor did Plaintiff pay any bonuses or any charges for the use or non-use of such items,' but the wholesalers 'usually distributed the POS advertising items to various Illinois retailers who would then use said items at the point-of-sale to encourage a demand for Plaintiff's malt beverage products among ultimate consumers thereof.'

As we read the complaint, what the plaintiff says is that it caused the items of tangible personal property here involved to be manufactured in order to promote the sale of its product.It paid for them, directed their shipment to particular wholesalers in Illinois, and paid the freight charges.But it also says that it never became the owner of these items because it did not ever intend to take title to them, and did not inventory them or enter them upon its books of account.We think those considerations are irrelevant.The plaintiff caused the items to be brought into being, paid for their manufacture and exercised complete power of disposition over them.Even if, in some other context or for some other purpose, someone other than the plaintiff might somehow be regarded as the owner of the items in the state in which they were manufactured, the dominion exercised over them by the plaintiff is sufficient to establish the plaintiff as their owner for the realistic purposes of a taxing statute.

The only conclusion that we can reach from the allegations of the complaint is that the plaintiff was the owner of the items in question when it directed that they be shipped into Illinois in order to stimulate the sale of its product.They were used in this state for that purpose.The complaint does not allege that these items of personal property fall within any of the statutory exceptions dealing with property brought into this state by an owner.(SeeIll.Rev.Stat.1963, chap. 120, par. 439.3.)Unless, therefore, the ownership of these items was transferred to someone else, the property was used in Illinois by the plaintiff, and the plaintiff is subject to the use tax.We turn, therefore, to the allegations of the complaint that are apparently intended to divorce the plaintiff from ownership of this property.

Paragraph 14.7 of the complaint alleges: 'Title to the POS advertising items passed from the suppliers to the Illinois wholesale distributors when said items were delivered to the respective carriers at the points of origin of the shipments.'This paragraph is based upon the assumption that the plaintiff never acquired any interest in or title to the items, a theory that we are unable to accept.Moreover, the allegation as to the passage of title is unmistakably a conclusion of law rather than an allegation of fact.(Leitch v. Hine, 393 Ill. 211, 66 N.E.2d 90;Wolcott v. Village of Lombard, 387 Ill. 621, 626, 57 N.E.2d 351;Grove v. Templin, 320 Ill. 597, 602, 151 N.E. 514.)Yet the facts as to the transactions are peculiarly within the knowledge of the plaintiff.

Paragraph 14.8 of the complaint alleges that if the plaintiff at any time acquired any ownership, title or interest in and...