Simpson v. Department of Revenue

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: ROBERTS; LENT; CAMPBELL
• Citation: Simpson v. Department of Revenue, 702 P.2d 399, 299 Or. 282 (Or. 1985)
• Decision Date: 25 June 1985
• Parties: Kerney SIMPSON, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent. TC 1837; SC S31186.

Page 399

702 P.2d 399

299 Or. 282

Kerney SIMPSON, Appellant, v. DEPARTMENT OF REVENUE, State of Oregon, Respondent.

TC 1837; SC S31186.

Supreme Court of Oregon.

Argued and Submitted May 7, 1985.

Decided June 25, 1985.

Patrick J. Kouba, Eugene, argued the cause for appellant. With him on the briefs were Brian D. Stine and Atherly, Butler & Burgott, Eugene.

G.F. Bartz, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem.

ROBERTS, Justice.

We are asked to decide whether certain items of personal property owned by plaintiff taxpayer are exempt from personal property taxation.

ORS 307.400(2) ¹ provides an exemption from ad valorem taxation for property that is inventory of a business. For purposes of this exemption, subsection (3) provides that "inventory" includes, among other things:

"(f) Items of tangible personal property described as materials, supplies, containers, goods in process, finished goods and other personal property owned by or in possession of the taxpayer, that are or will become part of the stock in trade of the taxpayer held for sale in the ordinary course of business." (Emphasis added.)

Taxpayer is the owner of three Insley tractors which he purchased in 1978 after they were used on the Alaska pipeline. The Lane County assessor treated the tractors as personal property subject to taxation for the 1981 tax year. Taxpayer appealed the assessor's action and after a hearing the Department of Revenue found that the assessor had properly classified the tractors as subject to taxation. Taxpayer appealed to the Tax Court. The Tax Court made the following statement regarding the facts:

"The plaintiff testified at trial that he has 'dealt in equipment' since 1955 and that in particular he traded some two dozen items of equipment in 1978 and 1979, including some welders, trucks, compressors, turbos, truck frames for cats, tractors and at least one tree planter. He further testified that he purchased all such items for resale, save a tree planter which he used himself.

"The Assessor testified that he could ascertain none of the usual indicia of conducting a business such as an office, yellow page listing or consistent advertising.

"The Assessor further testified he examined the plaintiff's tax returns and noted that he had not reported any equipment as inventory on any of his returns from 1976 to 1981. For these reasons, the Assessor disallowed plaintiff's claim that these items were inventory.

"However, plaintiff offered in evidence several copies of ads in a heavy equipment catalog showing 'K. Simpson' or 'Kearney Simpson' offering various items of equipment for sale. These ads were received in evidence over defendant's objection as Exhibits B through G. The ads are on pages variously dated from December, 1981 through June, 1982. The plaintiff further offered receipts for ads that he stated he ran in other publications in December, 1981 and June and July, 1982. The contents of these ads are not in evidence. Plaintiff offered and the Court received a copy of an assumed business name registration for 'Simpson Equipment Sales' dated July 27, 1979 and naming Kerney Simpson as sole party in interest. This registration was received without objection as Exhibit M. The plaintiff testified that he had no regular business office or business cards and was not a member of any pertinent business association.

"It is noted that although plaintiff had the assumed business name, he seemed to make no use of it. There was no evidence of any sort of business stationery or checks using that name in any way and the ads did not emphasize the assumed business name or even refer to it."

The Tax Court affirmed the Department of Revenue stating that "on balance this [taxpayer] was casually engaged in the speculative acquisition of various items for possible resale for anticipated profit but the [taxpayer] did not acquire or seek to sell the three crawler tractors here in the 'ordinary course of business.' "

In reaching this conclusion the Tax Court analyzed the problem as follows:

"In approaching this case, the Court distinguishes between the ordinary course of business and casual sales conducted sporadically for profit. There are no defined minimum standards for an ordinary course of business for these purposes, but the Court assumes that any person or entity seeking the advantage of the exemption provisions of ORS 307.400 needs to establish that there is an ongoing enterprise which consistently and systematically undertakes to acquire and then to sell inventory items. Factors to be considered as to whether such acquisitions and sales are sufficiently shown would include, but not be limited to, the number of sales, the dollar amount of sales, the location of sales, the method(s) of acquisitions and sales, the existence of an office of identifiable, predictable, locatable situs for the delivery of inventory and the making of sales, the existence of a registered assumed business name, business cards, checks, business telephone number and other indicia of holding out publicly as a buyer and seller of an identifiable, definable inventory."

Taxpayer states that he is satisfied with the statement of the Tax Court that " * * * any person or entity seeking the advantage of the exemption provision of ORS 307.400 needs to establish that there is an ongoing enterprise which consistently and systematically undertakes to acquire and then to sell inventory items." But taxpayer argues that the Tax Court failed properly to apply this test to the facts of this case, and instead created an exception to the exemption not found in the statute for "casual" sales. Taxpayer's position is that this distinction is improper because it focuses not on whether taxpayer engaged in continuous efforts to purchase and sell used equipment, but on the occasional nature of taxpayer's sales and the lack of formal "trappings" of a business operation. Taxpayer asserts that the court should have taken into account the business reasons for taxpayer's manner of operating his business.

We review under ORS 305.445, which provides that appeals from the Tax Court to this court "shall be in accordance with the procedure in equity cases on appeal from a circuit court." We thus review under ORS 19.125(3), which provides that "the cause shall be tried anew upon the record." See Oregon Broadcasting Co. v. Dept. of Revenue, 287 Or. 267, 270-71, 598 P.2d 689 (1979).

Taxpayer's case before the Tax Court consisted of testimony of himself and Mr. Cobb, president of Grizzly Manufacturing Company (Grizzly). This testimony indicates that taxpayer is a tree farmer but had also...