Paul Arpin Van Lines Co. v. Norberg, 74-77-M

• Decision Date: 05 November 1975
• Docket Number: No. 74-77-M,74-77-M
• Citation: 346 A.2d 655,115 R.I. 379
• Parties: PAUL ARPIN VAN LINES CO. v. John H. NORBERG, Tax Administrator. P.
• Court: Rhode Island Supreme Court

Page 655

346 A.2d 655

115 R.I. 379

PAUL ARPIN VAN LINES CO. v. John H. NORBERG, Tax Administrator.

No. 74-77-M.P.

Supreme Court of Rhode Island.

Nov. 5, 1975.

[115 R.I. 382] Arcaro, Belilove & Kolodney, Abraham Belilove, Providence, Zelby, Burstein, Liberstein & Hartman, Herbert Burstein, New York City, for plaintiff-respondent.

Julius C. Michaelson, Atty. Gen., Perry Shatkin, Chief Legal Officer, (Taxation) Providence, for defendant-petitioner.

OPINION

KELLEHER, Justice.

This is a statutory petition for certiorari which was initiated pursuant to the relevant provisions of the Administrative Procedures Act, G.L.1956 (1969 Reenactment) § 42-35-16. The petitioner is the Tax Administrator of the State of Rhode Island. He seeks a reversal of a Superior Court judgment which reversed his determination that as of February 23, 1973 the respondent owed a use tax which together with interest and penalties amounted to $14,728.60. Hereinafter we shall refer to the petitioner as the 'Administrator' and the respondent as 'Arpin.'

The record that has been provided to us pursuant to our writ shows that there is little disagreement as to the facts relating to this litigation. Arpin is a Rhode Island corporation with its offices located in Providence. It is a duly certificated motor carrier, authorized to transport household goods between all points within the continental United States. Arpin provides its service through approximately 230 motorized movers who act as its agents. All agents are located outside Rhode Island. The interstate shipments move on Arpin's bills of lading and are subject to the tariff of rates and charges, filed by Arpin with the Interstate Commerce Commission.

In the course of its business, Arpin purchase corrugated fibre containers and excelsior which are a necessity for the safe transportation of its cargo. Once a shipment is completed, the packaging materials are retained by the customer or destroyed. They are not returned to Arpin or its agents or resold by the customer.

Arpin buys the cartons and excelsior in carload lots thereby obtaining them at a substantial discount. The sale takes place out of state. The containers arrive and leave Rhode Island in a disassembled condition. The materials are then forwarded to each of Arpin's agents on trucks which travel from Rhode Island to the agents' headquarters. There the cartons are put together, the customer's furnishings properly cushioned by the excelsior are then placed in the cartons, and the packaged goods are transported to their ultimate destination. Arpin makes no profit on the cartons or the excelsior. It charges its agents the exact cost of the packaging materials plus a 5 percent handling charge. Ninety-nine percent of Arpin's transportation business takes place outside Rhode Island. ¹ The only factual disagreement occurred when Arpin's counsel informed the hearing officer that the packaging materials remain at Arpin's warehouse for no more than two or three days before it resumes its travels. When the tax division's attorney mentioned that it was possible that some of the material remained here...