Statewide Multiple Listing Service v. Norberg

• Decision Date: 20 October 1978
• Docket Number: No. 76-311-M,76-311-M
• Citation: 392 A.2d 371,120 R.I. 937
• Parties: STATEWIDE MULTIPLE LISTING SERVICE, INC. v. John H. NORBERG, Tax Administrator. P.
• Court: Rhode Island Supreme Court

Page 371

392 A.2d 371

120 R.I. 937

STATEWIDE MULTIPLE LISTING SERVICE, INC. v. John H. NORBERG, Tax Administrator.

No. 76-311-M.P.

Supreme Court of Rhode Island.

Oct. 20, 1978.

[120 R.I. 944] DeSimone, Del Sesto & Del Sesto, Ronald W. Del Sesto, Gregory T. Del Sesto, Providence, for plaintiff-respondent.

Julius C. Michaelson, Atty. Gen., Allen P. Rubine, Asst. Atty. Gen., Perry Shatkin, Chief Legal Officer (Taxation), Providence, for defendant-petitioner.

OPINION

BEVILACQUA, Chief Justice.

The tax administrator filed this petition for certiorari pursuant to G.L.1956 (1977 Reenactment) § 42-35-16 seeking review of a Superior Court judgment which held that booklets purchased by Statewide Multiple Listing Service, Inc. (MLS) were publications within the meaning of G.L.1956 (1970 Reenactment) § 44-18-30(B) and therefore exempt from imposition of a use tax.

MLS is a statewide, nonbusiness corporation whose membership is limited to real estate brokers affiliated with the Rhode Island Realtors Association. The corporation exists to facilitate an exchange of information among members concerning real estate available for sale. Each member has the opportunity to participate in the sale of a property listed with MLS by another member.

In order to circulate and update property listings, MLS contracted with International Graphics Corporation of Minnesota (Graphics) to produce a weekly booklet. The booklet includes a description of new properties, properties which have been sold or removed from the listings, city and town tax rates, a membership role, notices of meetings and other data of interest to members. All of the material included in the booklet is provided by MLS to Graphics. In some cases, the raw data is rearranged and reindexed by Graphics' computer.

Graphics charges MLS $2.55 for each weekly booklet printed. This charge is passed through by MLS to each member who receives the booklet.

Graphics also prepares in each quarter a cumulative booklet which lists properties sold during that quarter and during prior quarterly periods in that calendar year. The quarterly booklet contains statistical indices indicating the method and amount of mortgage financing, time on market, and selling price of each property listed. Again the raw data is submitted by MLS members, rearranged and indexed by Graphics using its computer. Both the weekly and the quarterly booklets are confidential and are available only to MLS members. Violations of confidentiality are reported to MLS, a hearing is held and sanctions may be imposed.

Evidence indicated that MLS paid Graphics approximately $108,000 during the period in question, January 1972 through September 1973. Based on this figure and his determination that the booklets were catalogues and therefore excluded by regulation from the periodical exemption set out in § 44-18-30(B), a revenue agent assessed a use tax of $5,407.67 upon receipt of the booklets by MLS. An administrative hearing followed at which the assessment was upheld.

MLS paid the assessment and sought review in the Superior Court pursuant to § 42-35-15. The trial justice reversed the decision of the tax administrator holding that the booklets were periodicals within the meaning of § 44-18-30(B) and, alternatively, that the transaction between Graphics and MLS was not a transfer of tangible personal property but a purchase of services and therefore outside the scope of the taxing statute. The tax administrator brought the instant petition.

A writ of certiorari brings up the record of the lower court for inspection and review on questions of law only. Providence Journal Co. v. Mason, 116 R.I. 614, 620, 359 A.2d 682, 685 (1976). Review is limited to the allegations of error which appear in the petition for the writ. Id. The tax administrator alleges in his petition that the trial justice misinterpreted the law in holding that the booklets were exempt periodicals and also erred in finding that the booklets represented a service rather than items of personal property.

Chapter 18 of title 44 entitled "Sales and Use Taxes Liability" provides in section 20 that "(a)n excise tax is hereby imposed on the storage, use, or other consumption in this state of tangible personal property * * *."

Section 44-18-30(B), however, exempts from taxation gross receipts "(f)rom the sale and from the storage, use, or other consumption in this state of any publication regularly issued at average intervals not exceeding three (3) months."

It is undisputed that the booklet at issue is regularly issued at intervals not exceeding 3 months. Therefore, the resolution of this controversy lies in the meaning we ascribe to the term "publication". The statute provides no definition. However, the tax administrator pursuant to § 44-19-33 has issued rules and regulations interpreting that term. In a bulletin issued July 1, 1966, he defined exempt "periodicals" or "publications" as "those periodicals or publications * * * each issue of which contains news or information of general interest to the public, or to some particular organization or group of persons," but excluded circulars, papers containing more advertising than news, catalogues, and shopping guides. Later bulletins excluded financial and personal service publications and directories from the exemption.

The construction of statutes is a matter reserved to the courts. Pacheco v. Lachapelle, 91 R.I. 359, 361-62, 163 A.2d 38, 40 (1960). However, an interpretive regulation issued by an agency charged with administration of a statute will ordinarily be given great weight. Flather v. Norberg, R.I., 377 A.2d 225, 229 n.3 (1977). This practice is limited by a requirement that the statute be ambiguous and therefore in need of interpretation. Brier Manufacturing Co. v. Norberg, R.I., 377 A.2d 345, 348 (1977). Additionally, the interpretation by the agency may not encroach upon the legislative province by altering or amending the scope of the statute. Petrarca v. Tax Administrator, 113 R.I. 449, 457, 322 A.2d 621, 625 (1974).

We find that the term "publication" employed in § 44-18-30(B) is clear and unambiguous. It implies a communication to the general public. Marx v. United States, 96 F.2d 204, 206 (9th Cir. 1938), Quoting Associated Press v. International News Service, 245 F. 244, 250-51 (2d Cir. 1917); Tiffany Productions v. Dewing, 50 F.2d 911, 914 (D.Md.1931); Estill County v. Noland, 295 Ky. 753, 763, 175 S.W.2d 341, 346 (1943); Hancock-Nelson Mercantile Co. v. Commissioner of Taxation, 298 Minn. 341, 345, 215 N.W.2d 620, 622 (1974); Business Statistics Organization, Inc. v. Joseph, 299 N.Y. 443, 451, 87 N.E.2d 505, 508 (1949); Black's Law Dictionary 1396 (rev. 4th ed. 1968); Webster's Third New International Dictionary 1836 (1968). Where the language of a statute expresses a clear...