Nevada Tax Com'n v. Bernhard, 15332

Decision Date26 June 1984
Docket NumberNo. 15332,15332
Citation683 P.2d 21,100 Nev. 348
PartiesNEVADA TAX COMMISSION, Appellant, v. Alexander K. BERNHARD, Respondent.
CourtNevada Supreme Court

D. Brian McKay, Atty. Gen., and Michael J. Dougherty, Deputy Atty. Gen., Carson City, for appellant.

Shaw, Heaton, Doescher & Owen, Carson City, for respondent.

OPINION

PER CURIAM:

This is an appeal from a judgment of the lower court holding that respondent's purchase of an airplane constituted an "occasional sale" and was therefore exempt from a use tax under the provisions of the Sales and Use Tax Act, 1955 Nev.Stats. ch. 397. 1 The Nevada Tax Commission has appealed and contends that the lower court erred in holding that the transaction constituted an occasional sale. We disagree.

Christen Industries, Inc. (hereafter Christen) is a California corporation engaged in the business of selling aerobatic airplane kits and is a registered retailer with the California State Board of Equalization. Christen used a twin-engine Cessna aircraft in the course of its operations for the purpose of corporate transportation.

In November of 1981, Christen sold the Cessna in California to Alexander K. Bernhard, the respondent. Bernhard based the Cessna in Nevada, but he did not remit a use tax to the State of Nevada.

The Nevada Department of Transportation subsequently determined that Bernhard owed a use tax on the airplane and sent him a deficiency notice to this effect. Bernhard petitioned for a redetermination of the assessment. A hearing officer for the Department of Taxation upheld the assessment, which decision was affirmed on appeal to the Nevada Tax Commission.

In December of 1982, Bernhard petitioned the district court to review the decision of the tax commission. The district court held that the sale of the Cessna constituted an occasional sale which, under NRS 372.320, exempted the transaction from a use tax.

On appeal, the tax commission contends that because Christen held or used the Cessna in the course of its retailing activity, the sale of the Cessna does not constitute an occasional sale.

The Sales and Use Tax Act was enacted by the legislature in 1955 and approved by the people of Nevada in a referendum vote in 1956. The act imposes an excise tax "on the storage, use or other consumption in this state of tangible personal property purchased from any retailer on or after July 1, 1955, for storage use or other consumption in this state ...." NRS 372.185. Exempted from this tax are the "gross receipts from occasional sales of tangible personal property and the storage, use or other consumption in this state of tangible personal property, the transfer of which to the purchaser is an occasional sale." NRS 372.320. NRS 372.035(1)(a) defines an "occasional sale" as including:

A sale of property not held or used by a seller in the course of an activity for which he is required to hold a seller's permit, provided such sale is not one of a series of sales sufficient in number, scope and character to constitute an activity requiring the holding of a seller's permit.

At issue in this case is whether Christen can be considered to have held or used the Cessna in the course of an activity for which Christen was required to hold a seller's permit. The court below held that because Christen was not in the business of selling airplanes such as the Cessna, the sale was an occasional sale. The tax commission, on the other hand, acknowledges that Christen was not in the business of selling airplanes such as the Cessna, but asserts that because the Cessna was used in the course of Christen's activity in selling airplane kits, the "occasional sale" exemption is not available.

The issue presented is one of the proper construction of the definition of an "occasional sale." In construing a law approved by referendum, the normal rules of statutory construction apply. Pershing Co. v. Humboldt Co., 43 Nev. 78, 183 P. 314 (1919) (opn. on rehrg.). Where the meaning of a particular provision is doubtful, the courts will give consideration...

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8 cases
  • Stoecker, In re
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 2, 1999
    ...§ 130.110(b) (1991); cf. Knowledge Data Systems v. Utah State Tax Comm'n, 865 P.2d 1387 (Utah App.1993); Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21 (1984) (per curiam). PLI, unlike its affiliate JPA, was not engaged in the regular sale of aircraft at retail (or at wholesale, f......
  • Independence Institute v. Coffman
    • United States
    • Colorado Court of Appeals
    • November 26, 2008
    ...(courts may interpret citizen-initiated measures using the general rules of statutory construction); Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21, 23 (1984) (laws approved by referendum are interpreted using general rules of statutory State constitutional provisions that violate......
  • Estate of Irvine v. Doyle
    • United States
    • Nevada Supreme Court
    • December 10, 1985
    ...the statute as a whole, giving effect to each word without ignoring the intent of the legislature. See generally Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21 (1984) (statute should be read to give meaning to all of its parts); Spencer v. Harrah's Inc., 98 Nev. 99, 641 P.2d 481 (......
  • Hickey v. Eighth Judicial Dist. Court In and For County of Clark
    • United States
    • Nevada Supreme Court
    • November 27, 1989
    ...be read as a whole and, where possible, the statute should be read to give meaning to all of its parts. See Nevada Tax Comm'n v. Bernhard, 100 Nev. 348, 683 P.2d 21 (1984). Although NRS 62.360(4) authorizes the disclosure to a civil litigant of the name of a juvenile who has committed a tor......
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