S & M Finance Co. Fort Dodge v. Iowa State Tax Commission

Decision Date12 November 1968
Docket NumberNo. 52975,52975
Citation162 N.W.2d 505
PartiesS & M FINANCE COMPANY FORT DODGE, Iowa, Appellee, v. IOWA STATE TAX COMMISSION, E. A. Burrows, Jr., Lynn Potter and X. T. Prentis, Members Thereof, Appellants.
CourtIowa Supreme Court

Richard C. Turner, Atty. Gen., George W. Murray, Sp. Asst. Atty. Gen., and Harry M. Griger, Asst. Atty. Gen., for appellants.

Mitchell, Mitchell & Murray, Fort Dodge, for appellee.

LeGRAND, Justice.

This is a de novo appeal challenging a decree holding certain sales of personal property exempt from the imposition of sales tax under chapter 422, Code of Iowa.

Plaintiff, an Iowa corporation, has for many years engaged in the business of making loans secured by liens on personal property. Defendants are the Iowa State Tax Commission and its individual members. In this opinion we refer to the defendants jointly as the commission.

The facts are substantially without dispute. The controversy centers around the sale by plaintiff of its loan security--which in every case was a motor vehicle--upon default in payment by the borrower. When default occurred, plaintiff took possession of the security under the terms of the loan agreement. Sometimes this was in the nature of a conditional sales contract, sometimes a chattel mortgage. If necessary, the property was reconditioned or repaired. It was then advertised for sale, and ultimately a sale was made. The proceeds were applied, first, to pay off the loan balance and the costs of sale. If there remained any surplus, it was paid over to the borrower. In no case did plaintiff make a profit on such sale; nor, under its loan contract, could it do so.

Prior to 1943 plaintiff had a retail sales tax permit and made quarterly returns, as required by section 422.52, Code of Iowa. Sometime in 1943 plaintiff surrendered its sales tax permit and thereafter did not make sales tax returns. This method of operation continued from 1943 until 1965 without objection from the commission. At that time a field representative of the commission, while auditing plaintiff's records for other purposes, came across the data concerning these motor vehicle sales. Thereafter plaintiff was asked to furnish all information regarding sales of motor vehicles from July 1, 1960, through March 31, 1965.

Based upon information furnished by plaintiff, the commission assessed a tax or $2264.48, plus penalty of $245.66, for unpaid and delinquent sales tax accrued during the period under invertigation. Not all sales made by plaintiff during that time were included in the assessment. The commission excluded all sales to wholesalers and certain other transactions and included only those made to buyers who qualified, in the commission's opinion, as 'consumers or users' under section 422.43, Code of Iowa. Plaintiff admits that only sales to ultimate consumers were included in the assessment. Plaintiff appealed to the district court of Webster County, which reversed the commission on two grounds: (1) That the sales were not retail sales under section 422.42(3), Code of Iowa; (2) That the sales were casual sales and exempt from sales tax under section 422.45(6), Code of Iowa.

From this decree the commission appeals to us. We reverse and hold plaintiff is liable for the tax assessed by the commission.

I. We disagree with the trial court's conclusion the sales were not sales at retail. This question depends upon the construction placed on section 422.42, which defines various terms used with reference to sales tax liability. It is, or course, axiomatic that these legislative definitions are binding on us. W. J. Sandberg Co. v. Iowa State Board of Assessment and Review, 225 Iowa 103, 107, 278 N.W. 643, 645, 281 N.W. 197; Iowa State Commerce Commission v. Northern National Gas Company, Iowa, 161 N.W.2d 111, filed September 5, 1968.

Section 422.42 contains these definitions:

'* * * 2. 'Sales' means any transfer, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for a consideration.

'3. 'Retail sale' or 'sale at retail' means the sale to a consumer or to any person for any purpose, other than for processing or for resale of tangible personal property.'

In section 422.43 as of the dates material to this appeal we find this, 'There is hereby imposed, beginning the first day of April, 1937, a tax of two percent upon the gross receipts from all sales of tangible personal property, consisting of goods, wares, or merchandise, except as otherwise provided in this division, sold at retail in the state to consumers or users. * * *' We hold the transactions in question fall directly within the provisions of these statutes. Certainly these were transfers of tangible personal property for a consideration; and just as certainly they were not made for processing or for resale. Under that factual situation the sales were retail sales. W. J. Sandberg Co. v. Iowa State Board of Assessment and Review, supra; Des Moines and Central Iowa Railway Company v. Iowa State Tax Commission, 253 Iowa 994, 998, 115 N.W.2d 178, 181; Schemmer v. Iowa State Tax Commission, 254 Iowa 315, 319, 117 N.W.2d 420, 422.

Plaintiff argues we should look to provisions in the Uniform Commercial Code, and the law as it existed prior to the adoption of that code, and to chapters 321 and 322, Code, for certain definitions which exclude the sales here in question from the taxable provisions of chapter 422. Without passing upon whether there is any statutory inconsistency, we hold our answer here must be found within the provisions of chapter 422, which specifically defines what is taxable, imposes the tax, and provides for its collection.

We hold these transfers were sales at retail under section 422.42(3), Code of Iowa.

II. Neither can we agree these transactions were casual sales and therefore exempt under section 422.45(6), which excludes from the provisions of the sales tax the gross receipts from casual sales. Section 422.42(13) defines casual sales as follows:

"Casual sales' means sales of tangible personal property by the owner of a non-recurring nature, if the seller, at the time of sale, is not engaged for profit in the business of selling tangible goods or services taxed under section 422.43.' Both section 422.45(6) and section 422.42(13) became effective by amendment May 21, 1963. Prior to that time there was no exemption for casual sales. In Des Moines and Central Iowa Railway Company v. Iowa State Tax Commission, 253 Iowa 994, 115 N.W.2d 178, decided in 1962, we held a rule of the commission attempting to exempt casual sales from the tax was invalid. Subsequent to this decision, and perhaps because of it, the legislature amended the act to exempt casual sales from tax.

At best, then, plaintiff's argument that the sales in question were casual would apply only after May 21, 1963. It would not relieve the plaintiff of any tax based on sales prior to that time.

This becomes unimportant in view of our conclusion the sales were not casual under the statutory definition. The evidence shows plaintiff sold approximately 50 cars each year. This figure varied from year to year, depending upon the number of defaulted loans, but testimony fixed the figure at an average of 50 per year. Plaintiff contends the sales were casual because it was not in the business of selling automobiles for profit; it is a finance company and sells automobiles only to prevent loss on bad loans.

The statutory definition of casual sales requires that two conditions be met. We assume, although we do not hold, that plaintiff is not engaged in selling tangible goods for profit as part of its business. Nevertheless we hold these transfers were not casual sales because plaintiff cannot satisfy the second requirement of the definition--that the sales be nonrecurring. Webster's New International Dictionary, Second Ed., defines recur as to 'occur, take place, or appear again.' Synonyms listed are return, repeat, reoccur and reappear.

In construing section 422.42(13) we give the words used their usual and ordinary meaning. We also adhere to the rule that the plain, obvious meaning is always preferred over one which is strained and artificial. Bruce Motor Freight, Inc. v. Lauterbach, 247 Iowa 956, 970, 77 N.W.2d 613, 621.

An exemption statute is strictly construed against the taxpayer, who has the burden of proving clearly that he comes within its provisions. Fischer Artificial Ice Company v. Iowa State Tax Commission, 248 Iowa 497, 499, 81 N.W.2d 437, 439, and citations. Plaintiff has failed to meet that burden here.

It would indeed take a 'strained and artificial' interpretation of the statute to say these were nonrecurring sales when they occurred over a long period of time on a once-each-week average.

We conclude the sales in question were not casual sales within the provisions of section 422.42(13) and are therefore not exempt under section 422.45(6).

III. The third ground urged by plaintiff relates to equitable estoppel and is based on certain representations allegedly made by the commission and one of its field representatives in June of 1943.

We should probably mention first that estoppel is not plead and could not therefore ordinarily be relied upon by plaintiff. 31 C.J.S. Estoppel § 153(1), page 743; Reed v. Bunger, 255 Iowa 322, 336, 122 N.W.2d 290; Alexander v. Randall, 257 Iowa 422, 427, 133 N.W.2d 124. However, the commission concedes in its reply brief this doctrine was submitted without objection as an issue before the trial court and we therefore consider it as though it were properly raised. Markman v. Hoefer, 252 Iowa 118, 123, 106 N.W.2d 59, 63, and citations.

It is necessary that we give a brief background of the facts which are said to create an equitable estoppel. In 1943 a commission field representative advised plaintiff no sales tax was due on sales of repossessed motor vehicles. Plaintiff thereupon surrendered its sales tax permit to the...

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