State v. Acker

• Decision Date: 25 March 1970
• Docket Number: 7 Div. 4
• Citation: 45 Ala.App. 574,233 So.2d 514
• Parties: STATE of Alabama v. Charles F. ACKER d/b/a Acker Cabinet Shop.
• Court: Alabama Court of Civil Appeals

Page 514

233 So.2d 514

45 Ala.App. 574

STATE of Alabama v. Charles F. ACKER d/b/a Acker Cabinet Shop.

7 Div. 4.

Court of Civil Appeals of Alabama.

March 25, 1970.

MacDonald Gallion, Atty. Gen., Willard W. Livingston, Asst. Atty. Gen., and Counsel, Dept. of Revenue; Herbert I. Burson, Jr., Asst. Atty. Gen., and Asst. Counsel, Dept. of Revenue, for the State.

Merrill, Merrill, Vardaman & Williams, Anniston, for appellee.

WRIGHT, Judge.

Appellant, State of Alabama, Department of Revenue, brings this appeal from a decree of the Circuit Court, In Equity, of Calhoun County, Alabama, which decree set aside a final assessment for sales tax entered by the Department of Revenue against appellee, Charles F. Acker.

The final assessment against appellee was made on April 12, 1966 in the amount of $2,173.91, and covered an audit period from April 1, 1962 through May 31, 1965. Appeal from the assessment was brought by Mr. Acker in the court below under Section 140, Title 51, Code of Alabama 1940. The matter was heard ore tenus by the trial court with final decree entered on January 23, 1969, which decree set aside the assessment. From the adverse decree, the appellant, State of Alabama, brings this appeal.

There is little, if any, dispute as to the factual situation out of which this case arose. The appellee, Charles F. Acker, is engaged in business in the City of Anniston. His method of operation is as a contractor or subcontractor, for the construction and installation of kitchen cabinets in houses. The cabinets he constructs and installs are known in the trade as 'custom built' cabinets. His work begins with measurements and specifications taken from plans or blueprints, or personally made at the site of construction, with additional instructions either from the contractor or the owner. With the measurements, instructions, and specifications, he begins construction or fabrication in his shop. When the shop work is completed, the product is carried to the house, fitted therein and installation completed.

The evidence indicates that the larger part of construction is completed in the shop and, usually, work at the job site consists of fitting, leveling, forming and attaching the top, gluing thereon formica and any other work necessary for a finished product. Painting is usually done by the general contractor. If, when brought to the job site for completed installation, measurements and specifications are wrong and the cabinets do not fit into the proper space, the shop product is useless and work must be begun again. In such a case, the shop product has little or no value, unless a customer comes by who can use cabinets of these particular measurements and specifications. Appellee does not construct in his shop any standard size cabinets for sale to the general public.

It had been the practice of appellee to pay sales tax as provided in Title 51, Section 786(2)(j), Code of Alabama 1940. He contends that he is a contractor using building materials in the performance of a construction contract, which building materials are taxable at their cost to him as purchased from a wholesale dealer. It is the contention of appellant, State of Alabama, that appellee is a manufacturer-contractor within the meaning of Title 51, Section 786(2)(m), Code of Alabama 1940, as such section is interpreted by Department Ruling B27--081. There is included in the assessment against appellee a small sum allegedly due the City of Anniston, imposed by a special act of the legislature, and a city ordinance, as a city sales tax. The levy is the same as that upon which the state sales tax is based, and a finding as to the propriety of the state levy will be determinative of the assessment under the city ordinance.

Appellant has made ten assignments of error, which collectively, attack the final decree of the court below in its entirety. For the purpose of this opinion, we consider it unnecessary to discuss each assignment of error separately. As we see it, the question presented by this appeal is whether appellee is a contractor using building materials in the performance of a construction contract, which materials are taxable to appellee at the cost price to him under Title 51, Section 786(2)(j), or whether he is a manufacturer-contractor within the provisions of Title 51, Section 786(2)(m), as said section is interpreted by Ruling B27--081, and is due to pay sales tax on a manufactured product as though making a retail sale, the amount of such tax to be measured by the reasonable and fair market value of the product at the time and place where used. Appellee contends he falls within the first category. Appellant contends that appellee falls within the second.

We shall first examine the appropriate provisions of Title 51, Section 786(2) (m), together with its departmental interpretation, Ruling B27--081. Section 786(2)(m) reads in part as follows:

'The following words, terms and phrases when used in this article shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: * * *.

'(m) The use within this state of tangible personal property by the manufacturer or compounder thereof, as building materials, in the performance of a construction contract, shall, for the purposes of this article be considered as a retail sale thereof by such manufacturer, or compounder who shall also be construed as the ultimate consumer of such materials or property, and who shall be required to report such transaction and pay the sales tax thereon, based upon the reasonable and fair market price thereof at the time and place where same are used or consumed by him or it. * * *'

The departmental interpretation of the above quoted section, known as B27--081, is quoted in pertinent parts as follows:

'Section 1(m) provides that the use of building materials in the performance of a contract by the person who manufactures them is equivalent to making a retail sale, such materials and such use must be reported by such person as subject to sales tax to be measured by the reasonable and fair market value at the time and place where used.

'Where the contractor-manufacturer also sells the same kinds of materials to others for installation by them, the 'reasonable and fair market value' would be the same as the 'sales prior' * * *

'Where no 'sales price' can be found to be used as the measure of the tax, the following formula should be used:

'Manufactured cost of materials, plus transportation to job site, plus proportionate part of general overhead, selling cost, and profit equals reasonable and fair market value of materials.

'Section 1(m) applies to metal awnings, metal carports, and other similar permanently attached additions to buildings when the components are prefabricated at the shop, plant, or mill of the contractor. This subsection does not apply when the materials are cut and fitted on the job site for attachment as construction progresses * * * examples of materials which do come within the provisions of this subsection are: doors, window sashes, ready mix concrete, and cabinets manufactured by the contractor in a plant, shop, or mill operated for the purpose of such manufacturing * * *'

Appellant approaches argument in brief by stating that one of the most pertinent words in the statute is that of 'manufacturer'. Appellant quotes extensively from 26 Words and Phrases, 'Manufacture', pages 610 et seq., such quotations representing definitions of the word 'manufacturer' as found in various cases. Appellant presents an anomaly when it states: 'the plethora of decisions makes it Simple to determine what 'manufacturer' means legally.' (Emphasis ours.) We cannot agree that vast numbers of interpretations involving varied factual situations, makes simple a determination of what a word legally means.

In the case of State v. Air Conditioning Engineers, Inc., 277 Ala. 675, 174 So.2d 315, the Court was apparently presented with the same 'plethora' of definitions of the word 'manufacturer' as we have received here. In response, the Court stated 'The term 'manufacturer' in its broadest sense implies any change wrought by hand. Such a broad implication serves no useful purpose in a solution of the present question. In taxation statutes the word 'manufacturer' is generally given a narrow meaning. Armature Exchange v. United States, D.C., 28 F.Supp. 10, and several of the definitions of 'manufacturer' assert that the transformation into a new form must be such as the new article has a 'distinctive name, character or use' (Citation omitted) 'or into a suitable form for use.' (Cullum v. Stevens, D.C., 46 F.Supp. 73).'

We are in full accord with the further statement of the Court in State v. Air Conditioning Engineers, Inc., supra, when it stated 'the application of taxing statutes must be bottomed upon, and considered in the light of each particular situation, bearing in mind that in case of doubt a tax law should be liberally construed in favor of the taxpayer. Montgomery Aviation Corp. v. State, 275 Ala. 266, 154 So.2d 24.'

In looking at the factual situation at hand, it comes to mind that improved construction methods...