Townley, Matter of, No. 15547

CourtSupreme Court of South Dakota
Writing for the CourtSABERS; WUEST; HENDERSON; HENDERSON
Citation417 N.W.2d 398
PartiesIn the Matter of the State Sales and Use Tax Liability of Page J. TOWNLEY, Jr. d/b/a National Car Rental Rapid City Regional Airport. . Considered on Briefs
Decision Date22 April 1987
Docket NumberNo. 15547

Page 398

417 N.W.2d 398
In the Matter of the State Sales and Use Tax Liability of
Page J. TOWNLEY, Jr. d/b/a National Car Rental
Rapid City Regional Airport.
No. 15547.
Supreme Court of South Dakota.
Considered on Briefs April 22, 1987.
Decided Dec. 30, 1987.

Gene R. Woodle, Asst. Atty. Gen., Pierre, for appellant South Dakota Dept. of Revenue; Mark V. Meierhenry, Atty. Gen., on brief.

Robert L. Varilek, Rapid City, for appellee Townley.

SABERS, Justice (on reassignment).

Department of Revenue (Department) appeals a circuit court decision that National owed no sales tax on gasoline reimbursements and personal accident insurance (PAI) receipts.

Facts

Page J. Townley, d/b/a National Car Rental (National), owns and operates a national

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car rental franchise with branches in Pierre and Rapid City, South Dakota. National's books and records from April 1982 through April 1985 were audited by Department. A state and city sales and use tax of $5,537 and interest of $2,348 were assessed for a total of $7,885.

Department determined that National failed to pay sales tax on funds received as reimbursement for the cost of gasoline used by National's customers during rental periods. Each customer renting an automobile receives it with a full tank of fuel. At the end of the rental period, a customer may choose to refill the tank at a service station of his or her choice, and return the vehicle with a full fuel tank, or elect to return the vehicle with less than a full tank. In the latter event, National charges the customer an amount which approximately covers the cost of refueling. When a car is returned with a full fuel tank, the customer is not charged and Department agrees that no tax is owed.

National also offers PAI to customers. The purchase is optional as rental customers may prefer to rely on their own insurance policies. Old Republic Insurance Company, licensed within South Dakota, underwrites the PAI. National retains 75% of all premiums collected and sends the remaining 25% to Green Valley Agency of Minneapolis (a subsidiary of National) which in turn submits a portion of the 25% received to Old Republic, the company responsible for paying insurance premium tax. National does not charge sales tax on either fuel reimbursement or PAI.

Action

An administrative hearing was held on October 18, 1985. Findings of fact and conclusions of law were entered on January 20, 1986. It was determined that amounts paid to National for refueling rental vehicles and for PAI were includable in gross receipts and therefore subject to tax.

This decision was appealed to the circuit court on February 12, 1986. The circuit court reversed Department's decision and entered its own findings of fact and conclusions of law. The court determined that (1) National's activities relating to gasoline and insurance sales predominately involve sales of those items as opposed to performance of services; and (2) state statutes exempted such sales from further tax. Department appeals. We reverse.

Scope of Review

This court recently clarified the standard of review in administrative law cases. Permann v. Dept. of Labor, Unemployment Ins. Division, 411 N.W.2d 113 (S.D.1987); see also Matter of Guardianship of Viereck, 411 N.W.2d 102 (S.D.1987) and Lee v. South Dakota Dept. of Health, 411 N.W.2d 108 (S.D.1987). When reviewing questions of fact, we determine whether the agency was clearly erroneous. If the issue under review is one of law, decisions of the agency and the circuit court are fully reviewable. Permann, supra at 116 (quoting Johnson v. Skelly Oil Co., 359 N.W.2d 130, 132 (S.D.1984)).

In this case, the facts are undisputed. Resolution of this dispute depends upon the interpretation and application of statutes. Because this is a question of law, we accord no deference to the conclusions reached by the Department or the circuit court. See Permann, supra at 117.

1. TAX LIABILITY

SDCL 10-45-5 imposes a tax at the rate of 4% upon the gross receipts of any person engaging or continuing in any of the following businesses or services in this state ... (including) rentals of tangible personal property.

Department claims that National is in the business of renting automobiles. When the public goes to National they go to rent a car. They do not go to buy gas or PAI and National does not sell them gas or PAI. National rents them a car.

National is in the business of renting cars which are tangible personal property and is, therefore, subject to sales tax measured by gross receipts from that business.

Gross receipts is defined in SDCL 10-45-1(2) as:

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T]he amount received in money, credits, property, or other money's worth in consideration of sales at retail within this state, without any deduction on account of the cost of the property sold, the cost of materials used, the cost of labor or services purchased, amounts paid for interest or discounts, or any other expenses whatsoever[.

The amounts charged by National in this case are all a part of the business of leasing cars and under the above definition those amounts may not be deducted from gross receipts in determining tax due.

It is apparent from National's own contract that amounts received for fuel cost reimbursement and PAI were considered part of gross receipts from car rentals. Section 4(a)(i) of the contract sets out "Rental Charges." Included within rental charges by National are "... refueling and other services."

In Keystone Consolidated Industries, Inc. v. Allphin, 45 Ill.App.3d 714, 4 Ill.Dec. 250, 359 N.E.2d 1202 (1977), the court considered a definition of "selling price" almost identical to South Dakota's definition of gross receipts. The court held that the meaning of the statute was clear. "No reimbursement of any of the seller's expenses whatsoever may be deducted from the selling price in computing use tax liability." Id. 359 N.E.2d at 1205.

The courts have reached a similar result in many cases * dealing with the costs of transportation or delivery. National claims these cases are "not dispositive." These cases are relevant, closely on point, and well reasoned. Although they may not be completely dispositive, they substantially support the principles involved. In Revenue Cabinet v. Budget Rent-A-Car of Cincinnati, Inc., 704 S.W.2d 199 (Ky.App.Dist. 1986), app. dis. --- U.S. ----, 106 S.Ct. 2239, 90 L.Ed.2d 687, the court held that a gross rental or lease charge tax applied to all charges, specifically including a charge for "personal accident insurance," and that gross included everything without deduction. The court stated: "If it is a charge contained in the lease, by clear meaning that is a 'lease charge.' " Revenue, supra, 704 S.W.2d at 202. In addition, the South Dakota statutes themselves are dispositive. The obvious intent of the South Dakota legislature is to impose a 4% tax upon gross receipts of any business or service renting tangible personal property. We give these words and phrases their plain meaning and effect. Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984); Board of Regents v. Carter, 89 S.D. 40, 46, 228 N.W.2d 621, 625 (1975). Therefore, the cost of gasoline and PAI is included in the rental charge and subject to the gross receipts tax.

2. EXEMPTIONS FROM TAX LIABILITY

National claims that it is exempt from sales tax on fuel cost reimbursement under SDCL 10-45-11 and for PAI under either SDCL 10-45-12.1 or SDCL 10-44-8. Under Northwestern Public Service Co. v. Aberdeen Housing and Redevelopment Comm'n, 320 N.W.2d 515 (S.D.1982), and K Mart Corp., Inc. v. South Dakota Dept. of Revenue, 345 N.W.2d 55 (S.D.1984), tax exemption statutes are construed strictly against the person claiming exemption. Exemptions are a matter of legislative grace and doubts are resolved in favor of taxation. In many of the cases, the taxpayer claims to be in a separate business such as the sale of transportation, PAI, or the sale of gasoline. These taxpayers could legally have engaged in their businesses and avoided tax because those types of businesses were exempt. However, the courts refused to allow these taxpayers to split off small, nontaxable portions of the business. If you are engaged in a taxable

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business, all of your receipts from that business are...

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8 practice notes
  • GRACELAND COLLEGE v. Dept. of Revenue, No. 22347.
    • United States
    • Supreme Court of South Dakota
    • November 26, 2002
    ...school. "Exemptions are a matter of legislative grace and doubts are resolved in favor of taxation." Matter of Townley, 417 N.W.2d 398, 400 (S.D.1987). The legislature obviously has not graced Graceland with an Continuing Education [¶ 12.] SkillPath next argues it is exempt from t......
  • Heritage of Yankton, Inc. v. South Dakota Dept. of Health, No. 15992
    • United States
    • Supreme Court of South Dakota
    • August 29, 1988
    ...to the other two claims of error, these are essentially questions of law and are reviewable by this Court de novo. In re Townley, 417 N.W.2d 398 (S.D.1987); Permann v. Department of Labor, 411 N.W.2d 113 (S.D.1987); In re Guardianship of Viereck, 411 N.W.2d 102, 107 (S.D.1987) (Henderson, J......
  • Magellan Pipeline Co. v. S.D. Dep't of Revenue & Regulation, No. 26553.
    • United States
    • Supreme Court of South Dakota
    • October 22, 2013
    ...deemed separate and distinct economic activities with refined petroleum products. See In re State Sales & Use Tax Liab. of Townley, 417 N.W.2d 398, 400 (S.D.1987).--------Notes: 1. A rack is a mechanism capable of delivering petroleum products into a means of transport other than the pi......
  • Lutherans Outdoors in South Dakota, Inc. v. South Dakota State Bd. of Equalization, Nos. 17045
    • United States
    • Supreme Court of South Dakota
    • October 2, 1991
    ...in favor of the taxing power." Matter of State & City Sales Tax Liability, 437 N.W.2d at 211; see also Matter of Townley, 417 N.W.2d 398, 400 Affirmed as to Issues 1 and 4, reversed as to Issues 2a and 2b, and reversed and remanded as to Issue 3. MILLER, C.J., and WUEST and HENDERS......
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8 cases
  • GRACELAND COLLEGE v. Dept. of Revenue, No. 22347.
    • United States
    • Supreme Court of South Dakota
    • November 26, 2002
    ...as a vocational school. "Exemptions are a matter of legislative grace and doubts are resolved in favor of taxation." Matter of Townley, 417 N.W.2d 398, 400 (S.D.1987). The legislature obviously has not graced Graceland with an Continuing Education [¶ 12.] SkillPath next argues it is exempt ......
  • Heritage of Yankton, Inc. v. South Dakota Dept. of Health, No. 15992
    • United States
    • Supreme Court of South Dakota
    • August 29, 1988
    ...to the other two claims of error, these are essentially questions of law and are reviewable by this Court de novo. In re Townley, 417 N.W.2d 398 (S.D.1987); Permann v. Department of Labor, 411 N.W.2d 113 (S.D.1987); In re Guardianship of Viereck, 411 N.W.2d 102, 107 (S.D.1987) (Henderson, J......
  • Magellan Pipeline Co. v. S.D. Dep't of Revenue & Regulation, No. 26553.
    • United States
    • Supreme Court of South Dakota
    • October 22, 2013
    ...be deemed separate and distinct economic activities with refined petroleum products. See In re State Sales & Use Tax Liab. of Townley, 417 N.W.2d 398, 400 (S.D.1987).--------Notes: 1. A rack is a mechanism capable of delivering petroleum products into a means of transport other than the pip......
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    • June 6, 1988
    ...(citing Permann v. Dept. of Labor, 411 N.W.2d 113, 117 (S.D.1987))" In the Matter of the State Sales and Use Tax Liability of Townley, 417 N.W.2d 398, 399 1. SALES TAX LIABILITY FOR PRINTING CHARGES SDCL 10-45-2 imposes "upon the privilege of engaging in business as a retailer, a tax of fou......
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