S. J. Groves & Sons Co. v. State Tax Commission

• Decision Date: 09 March 1977
• Citation: 360 N.E.2d 895,372 Mass. 140
• Parties: S. J. GROVES & SONS CO. v. STATE TAX COMMISSION. Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 895

360 N.E.2d 895

372 Mass. 140

S. J. GROVES & SONS CO. v. STATE TAX COMMISSION Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 9, 1976.

Decided March 9, 1977.

Margot Bostford, Asst. Atty. Gen., for the State Tax commission.

John D. O'Reilly, III, Framingham, for the taxpayer.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

BRAUCHER, Justice.

The State Tax Commission (commission) appeals from a judgment of the Superior Court declaring that certain items purchased by the taxpayer, a construction contractor on a public works project, are exempt from sales and use taxes by virtue of G.L. c. 64H, §§ 1(14)(c) and 6(c), (f), (r), (s). ¹ We hold that the judge did not abuse his discretion in taking jurisdiction. We agree with his decision that charges for labor in repairing materials are exempt under § 1(14)(c); and his decision that certain sales are exempt as casual or isolated sales under § 6(c) is not now contested. But we hold that neither sales of equipment, tools, machinery, and replacement parts, not physically incorporated in the public work, nor sales of office supplies are exempt as sales of 'building materials and supplies' under § 6(f), and that the exemptions in § 6(r) and (s) for property 'used directly . . . in the furnishing of . . . water . . . when delivered to consumers through mains, lines or pipes' have no application to sales to a construction contractor which furnishes no water to anyone. We remand the case to the Superior Court for further proceedings consistent with this opinion.

The Superior Court judgment rested on the uncontradicted affidavit of an official of the taxpayer, submitted in support of the taxpayer's motion for summary judgment, which motion was allowed. We summarize the affidavit. The taxpayer, a Minnesota corporation, contracted with the Metropolitan District Commission (MDC) to construct the Dorchester Tunnel, about six miles long at a depth of about 250 feet, and to install be water pipe with a diameter of about ten feet. The project began in 1969, and ran into 1974. The items in issue were used in the project. They consisted of drilling devices used in blasting operations, pumping devices, rail tracks and switches, a ventilation system, machines to excavate and transport rock and to process and transport concrete, lasers, electrical gear, a head frame supporting a surface-to-tunnel hoist, and miscellaneous construction and office supplies. The notice of assessment also included labor charges for repairing materials and supplies.

The commission assessed a tax of more than $60,000 for the period January, 1969, through October, 1972. The judgment declares that all the items set forth in the affidavit are exempt. The commission appealed, and we transferred the case here on our own motion. No suggestion is made that the taxpayer did not proceed in a timely fashion.

1. Propriety of declaratory relief. The commission argues that the action should have been dismissed because the taxpayer failed to exhaust its 'exclusive' remedy of appeal to the Appellate Tax Board. G.L. c. 64H, § 22; c. 64I, § 23. 'We have held repeatedly, in the tax field, that a declaratory action is not ousted merely by the fact that the taxpayer has an administrative path to relief. Rather we have taken the view that the judge in such a case may still exercise a discretion a to whether the action should be entertained. . . . Favorable to maintenance of a declaratory action . . . is the circumstance that the issue is important or novel or recurrent; that the decision will have public significance, affecting the interests of many besides the immediate litigants; or that the case reduces to an issue of law without dispute as to the facts.' Sydney v. Commissioner fo Corps. & Taxation, --- Mass. ---, --- - ---, ^a 356 N.E.2d 460, 464 (1976) and cases cited.

Before the enactment of the sales tax statute, declaratory relief was permitted in the face of a statute providing 'exclusive' remedies. E.g., Madden v. State Tax Comm'n, 333 Mass. 734, 736--737, 133 N.E.2d 252 (1956). We do not think that the use of the word 'exclusive' in tax statutes enacted after that decision was intended to establish a contrary rule. We have upheld or directed declaratory judgments in several cases involving the coverage of sales and use taxes. Taunton v. Commissioner of Corps. & Taxation, 359 Mass. 188, 268 N.E.2d 676 (1971); Courier Citizen Co. v. Commissioner of Corps. & Taxation, 358 Mass. 563, 266 N.E.2d 284 (1971); Supreme Council of the Royal Arcanum v. State Tax Comm'n, 358 Mass. 111, 260 N.E.2d 822 (1970). The present case reduces to an issue of law without dispute as to the facts. The meaning of 'building materials and supplies' in § 6(f) raises an issue of first impression which may well affect the interests of others than the taxpayer here. Although the case is close on this point and we would probably have left it to the Appellate Tax Board, we find no abuse of discretion entertaining the declaratory action.

2. Labor charges for repairing materials and supplies. According to the taxpayer's affidavit, the notice of assessment included more than $40,000 in labor charges on various invoices to the taxpayer, particularly invoices for repairing materials and supplies. Under G.L. c. 64H, § 2, an excise is imposed on 'sales at retail of tanbigle personal property.' 'Tangible personal property' is defined in § 1(15) as 'personal property of any nature consisting of any produce, goods, wares, merchandise and commodities whatsoever . . ..' No deduction is to be taken from the sales prices for labor cost, and 'any amount paid for any services that are a part of the sale' is to be included. § 1(14)(a)(ii), (b)(i). But certain labor charges commonly associated with sales prices are explicitly excluded by § 1(14)(c)(iii) and (v): '(iii) the amount charged for labor or services rendered in installing or applying the property sold'; and '(v) transportation charges separately stated, if the transportation occurs after the sale of the property is made.'

We think it is clear that charges for repairs made after a sale is complete are to be excluded, at least if such charges may separately stated. Some such charges may properly be treated as charges for 'labor or services rendered in installing or applying the property sold.' Others are simply not 'part of the sale.' The explicit exclusion of certain labor charges does not mean that all other charges for labor are subject to sales tax. Cf. Mahon v. Nudelman, 377 Ill. 331, 341, 36 N.E.2d 550 (1941) (occupation tax); Bowne v. Brown, 30 Conn.Sup. 309, 313 A.2d 426, 428 (C.P.1973) (sales tax, reparing is not selling).

3. Building materials and supplies. Section 6(f) exempts sales of 'building materials and supplies to be used in the construction . . . of . . . any . . . public works owned by . . . any governmental body . . . (such as the MDC) and used exclusively for public purposes . . ..' Building materials and supplies include 'all materials and supplies consumed, employed or expended in the construction . . . of any . . . public work, as well as such materials and supplies physically incorporated therein. Said term shall also include rental charges for...