Sizemore v. Franco Distributing Co., Inc.

• Decision Date: 01 November 1991
• Citation: 594 So.2d 143
• Parties: James M. SIZEMORE, Jr., Commissioner of Revenue, State of Alabama v. FRANCO DISTRIBUTING CO., INC., and Franco Novelty Company, Inc. 2900305-X.
• Court: Alabama Court of Civil Appeals

Page 143

594 So.2d 143

James M. SIZEMORE, Jr., Commissioner of Revenue, State of Alabama v. FRANCO DISTRIBUTING CO., INC., and Franco Novelty Company, Inc.

2900305-X.

Court of Civil Appeals of Alabama.

Nov. 1, 1991.

Rehearing Denied Dec. 6, 1991.

Certiorari Denied Feb. 21, 1992

Alabama Supreme Court 1910443.

Jimmy Evans, Atty. Gen., Ron Bowden, Counsel, and J. Wade Hope, Asst. Counsel, Dept. of Revenue, and Asst. Attys. Gen., for appellant.

Gerald W. Hartley and John R. Bradwell of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellees.

RUSSELL, Judge.

Franco Distributing Company and Franco Novelty Company (Franco) appealed in the Montgomery County Circuit Court for a refund of sales tax that Franco had paid according to an assessment by the State Department of Revenue (Department) for the period from May 1, 1986, through April 30, 1989. The Department's assessment was levied pursuant to subsection (1) of § 40-23-2, Ala.Code 1975, which provides for a tax at the rate of four percent on the gross proceeds of retail sales of "any tangible personal property whatsoever." Franco subsequently claimed, however, that its sale of video arcade game machines, pinball machines, juke boxes, and vending machines qualified for the reduced "machine" sales tax rate of one and one-half percent, as provided for under subsection (3) of this statute.

Section 40-23-2(3) calls for the levying of a sales tax as follows:

"Upon every person, firm or corporation engaged or continuing within this state in the business of selling at retail machines used in mining, quarrying, compounding, processing and manufacturing of tangible personal property an amount equal to one and one-half percent of the gross proceeds of the sale of such machines; provided, that the term 'machines' as herein used, shall include machinery which is used for mining, quarrying, compounding, processing or manufacturing tangible personal property, and the parts of such machines, attachments and replacements therefor, which are made or manufactured for use on or in the operation of such machines and which are necessary to the operation of such machines and are customarily so used."

On the basis of § 40-23-2(3) the trial court held that the machines sold by Franco "processed" electricity and were therefore entitled to the favorable one and one-half percent sales tax rate. The Department appeals from the trial court's judgment. We reverse and remand.

The Department concedes that electricity is "tangible personal property" within the meaning of § 40-23-2(3). See, e.g., State v. Television Corp., 271 Ala. 692, 127 So.2d 603 (1961); Curry v. Alabama Power Co., 243 Ala. 53, 8 So.2d 521 (1942). However, the Department contends that the trial court erred in holding that Franco's various machines are used in "processing" electricity within the meaning of the statute.

At trial Franco offered testimony as to how the machines that it sold operate. Franco's expert witness explained in detail the electronic workings of the various components of a video game machine. Electricity is received in the form of alternating current from an outside power source, usually through a wall outlet. Upon entering the machine, the electricity passes through a filter and is converted into direct current. The electricity then flows through a transformer, which reduces the voltage, then travels to a switching regulator that channels the electricity to a logic board. From the logic board, the electricity is channeled to various components of the machine, causing parts to move and images and colors to appear and move on a video screen. Sound is created by the flow of electrical current (defined as "electrons moving from one location to another") and impulses through an amplifier in the logic board. The machine also contains a power capacitor, traps, a video sequencer, character generators, converters, and resistors. The pinball machines, juke boxes, and vending machines function electronically in substantially the same manner as the video game machines.

The trial court found that various of the above-mentioned components--specifically transformers, amplifiers, voltage regulators, power capacitors, video sequencers, traps, filters, character generators, and converters--"are accepted, as a general rule, as being machines that do process [electricity]."

When ascertaining the meaning of the term "processing" as used in § 40-23-2(3) and its predecessor, our supreme court stated the following:

"We have had occasion to quote approvingly in several cases, State v. Advertiser Co., 257 Ala. 423, , 59 So.2d 576, 579 [ (1952) ]; Curry v. Alabama Power Co., 243 Ala. 53, 60, 8 So.2d 521, [526-27] [ (1942) ], the following definition of the word 'process' as given by Webster's New International Dictionary, 2nd Ed.:

" 'A series of actions, motions, or operations definitely conducing to an end, whether voluntary or involuntary; progressive act or transaction; continuous operation or treatment; a method of operation or treatment, esp. in manufacture " 'To subject to some special process or treatment.... To subject (esp. raw material) to a process of manufacture, development, preparation for the market, etc; to convert into marketable form, as livestock by slaughtering, grain by milling, cotton by spinning, milk by pasteurizing, fruits and vegetables by sorting and repacking.... To make usable, marketable, or the like, as waste matter or an inferior, defective, decomposed substance or product, by a process, often a chemical process.... To produce or copy by photo-mechanical methods; to develop, fix, wash and dry, or otherwise treat (an exposed film or plate).' "

Southern Natural Gas Co. v. State, 261 Ala. 222, 227, 73 So.2d 731, 735 (1954). Under this definition, it is apparent that the word "process" is synonymous with the expressions "preparation for market" and "to convert into marketable form." Id.

We find that the electricity used by Franco's machines is "prepared for market" and in a marketable, commercially usable form before entering the machines via the electric cord and plug in the wall outlet. The fact that the direction of the flow of electrons may be...