Ragland v. K-Mart Corp.

• Citation: 274 Ark. 297,624 S.W.2d 430
• Decision Date: 23 November 1981
• Docket Number: No. 81-136,K-MART,81-136
• Parties: Charles RAGLAND, Commissioner of Revenues, Department Finance and Administration, State of Arkansas, Appellant, v.CORPORATION, Appellee.
• Court: Supreme Court of Arkansas

Page 430

624 S.W.2d 430

274 Ark. 297

Charles RAGLAND, Commissioner of Revenues, Department

Finance and Administration, State of Arkansas, Appellant, v. K-MART CORPORATION, Appellee.

No. 81-136.

Supreme Court of Arkansas.

Nov. 23, 1981.

James R. Eads, Jr., Joseph V. Svoboda, H. Thomas Clark, Jr., Timothy J. Leathers, Kelly S. Jennings, Wayne Zakrzewski by Cassandra Wilkins-Slater, Little Rock, for appellant.

Rose Law Firm by C. Brantly Buck, Little Rock, for appellee.

ADKISSON, Chief Justice.

Appellee, K-Mart, is a retail discount chain operating seven stores in Arkansas. Appellant conducted a use and sales tax audit of K-Mart for the period of April 1, 1974, through December 31, 1977. This audit resulted in the assessment of a use tax deficiency of $17,280.13 and a sales tax deficiency of $55,475.89. Each sum includes interest and 10% penalty. K-Mart paid the assessed sums under protest and filed suit for refund under the procedure permitted by Ark.Stat.Ann. § 84-4721 (Repl.1980).

This appeal is from a Pulaski County Chancery Court decree holding: (1) that preprint advertising supplements printed out of state and delivered to Arkansas newspapers for distribution are exempt from the Arkansas Use Tax, Ark.Stat.Ann. § 84-3105 (Repl.1980) and, (2) that K-Mart is entitled to retain money collected as sales tax from consumers since the amount collected is in excess of the sales tax authorized by Ark.Stat.Ann. § 84-1903 (Repl.1980). We will consider each issue separately.

I USE TAX

K-Mart contracted with an out-of-state printer to produce preprint supplements advertising its merchandise and contracted with newspapers within the state to distribute the supplements along with the newspaper on specified days. Arkansas newspapers charge K-Mart a fee based upon the newspapers' general circulation. The record reflects that, generally, supplements to a particular newspaper carry the logo, name, of all newspapers in which it is scheduled to appear. This is known as a "gang logo." However, one Arkansas newspaper required, during the taxing period in question, that the supplements bear the date of insertion and its name only.

Appellee argues and the chancellor concluded that preprint advertising supplements are a component part of the newspaper like many other pre-printed sections (e.g. comics) and are, therefore, exempt from the Arkansas sales and use tax. Specifically, Ark.Stat.Ann. § 84-1904(f) (Repl.1980) exempts from sales tax "gross receipts or gross proceeds derived from the sale of newspapers" and Ark.Stat.Ann. § 84-3106(B) (Repl.1980) specifically exempts from use tax any tangible personal property exempt from sales tax. However, in this case we do not reach the question of whether unassembled component parts of a newspaper are exempt as "newspapers" under § 84-1904(f), since we decide that the supplements here in question are not a component part of a newspaper and therefore cannot possibly be exempt as "newspapers."

In deciding what a component part of a newspaper is, we must first define "newspaper." There is no statutory definition, but the term was defined in Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W.2d 371 (1932) in the context of statutes requiring legal notices to be published:

(T)he definition of a newspaper, within the meaning of the statute, is to be taken in its popular sense, which is one to which the general public would resort in order to be informed of the news and intelligence of the day, and which is published at stated intervals and carries reports of those happenings of general importance and interest to the ordinary individuals.

"Newspaper" has also been defined as "a paper that is printed and distributed daily, weekly, or at some other regular and usually short interval and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest...." Webster, Third New International Dictionary.

In Friedman's Express v. Mirror Transp. Co., 169 F.2d 504 (3rd Cir. 1948), the court held that comics were an integral part of the newspaper for the purpose of an Interstate Commerce Commission exemption, and the court in Sears Roebuck & Co. v. State Tax Comm'n, 370 Mass. 127, 345 N.E.2d 893 (1976) followed this reasoning in holding that preprint advertising supplements were within the definition of "newspaper." However, we decline to follow the Sears case, relying instead on Caldor, Inc. v. Heffernan Tax Comm'r, 183 Conn. ---, --- A.2d ---- (42 Conn.L.J. No. 43, p. 6) (1981), in which the court concluded that advertising supplements were not within the sales tax exemption given to newspapers.

We have considered the following factors in determining that preprint advertising supplements are not a component part of a newspaper:

1. Ownership. K-Mart purchased the supplements and ownership continued until the newspaper was delivered. Although the supplements were mailed to the newspaper, control, as an incident of ownership, remained with K-Mart until the distribution process of the newspaper was beyond recall. The newspaper was merely paid a fee for distribution of the supplements.

2. Preparation. These supplements were prepared by an entity totally independent of the newspaper and are not necessarily printed on the same type of paper as other parts of the newspaper.

3. Regular feature. Advertising preprint supplements are not a regular feature of any newspaper. A supplement defines itself as such, as opposed to purporting to be a component part of the newspaper. Furthermore, advertising supplements do not necessarily appear in each edition of a particular newspaper. Their appearance in the paper and the extent of its distribution is dictated by K-Mart's advertising policy.

4. Privity of contract. The newspaper pays for the insertion of comic and similar supplements whereas K-Mart pays the newspaper to distribute the preprint advertising supplements.

5. "Supplement to" followed by "gang logo." Unlike other supplements of a newspaper that bear only the logo of the specific newspaper of which they are a part, advertising preprint supplements bear the words "supplement to" followed by a "gang logo."

6. Distribution. The advertising supplements are sometimes distributed separate and apart from the newspaper. In this case they were offered as free handouts at K-Mart stores, and it is stipulated that these handouts were subject to use tax.

Any tax exemption provision must be strictly construed against the exemption, and to doubt is to deny the...