Wooddell v. Dailey

Citation230 S.E.2d 466,160 W.Va. 65
Decision Date07 December 1976
Docket NumberNo. 13623,13623
CourtSupreme Court of West Virginia
PartiesJerry K. WOODDELL v. Richard L. DAILEY, Tax Commissioner for the State of West Virginia.

Syllabus by the Court

1. The professional services which are excepted from the payment of the Consumers Sales and Service Tax, W.Va.Code, 11--15--1, Et seq., are not limited to services performed in the practice of law, theology or medicine or in pursuit of occupations specifically recognized as professions by W.Va.Code, Chapter 30, but any other profession must be clearly established as a profession by the one who asserts that services rendered in connection therewith are professional services excepted from taxation.

2. The Consumers Sales and Service Tax, W.Va.Code, 11--15--1, Et seq., is properly imposed on one who asserts that interior decorating is a profession whose services are excepted from the imposition of the tax when it is not clearly established that interior decorating is a profession as distinguished from an occupation, trade or business.

Chauncey H. Browning, Jr., Atty. Gen., and C. Page Hamrick, III, Asst. Atty. Gen., Charleston, for appellant.

Thornhill, Kennedy & Vaughan, James F. Vaughan, Jr., Beckley, for appellee.

WILSON, Justice:

This case presents for our determination the question of whether interior decorating is a profession whose practitioners are 'excepted' from payment of the tax imposed by W.Va.Code, 11--5--1, Et seq., referred to as the Consumers Sales and Service Tax.

The appellant State Tax Commissioner appeals from a final order of the Circuit Court of Raleigh County in favor of appellee Jerry K. Wooddell setting aside the Commissioner's deficiency assessment of said tax against Wooddell for the period January 1, 1966, through August 31, 1971, in the stipulated sum of $847.71.

The Circuit Court of Raleigh County reasoned that since the taxpayer was claiming that she was 'excepted' from the operation of the statute as opposed to claiming an 'exemption' from its operation, the Commissioner had the burden of showing that the expression 'professional services' as used in the statute, when given its generally accepted meaning, does not encompass the skill of interior decorating.

We must respectfully disagree with the trial court on this fundamental issue. W.Va.Code, 11--15--6, provides that all sales and services are presumed to be subject to the tax until the contrary is clearly established. In the face of such a presumption, the taxpayer has the burden of establishing that she is not subject to the tax.

By stipulation, it appears that Mrs. Wooddell is a highly skilled interior decorator with credentials which include a graduation certificate from the Trophegan School of Design in 1949, a long history of employment and self-employment as an interior decorator with skills in the use of colors, fabrics, furnishings and building materials and familiarity with the practices of the building trades including the financial and architectural aspects thereof.

The taxing statute imposes a general Consumers Sales and Service Tax. Services include all nonprofessional activities engaged in for other persons for a consideration which involve the rendering of a service as distinguished from the sale of tangible personal property. W.Va.Code, 11--15--2(9). The only specific exceptions or exemptions are contained in W.Va.Code, 11--15--2(9), and W.Va.Code, 11--15--9, and consist of personal services, services rendered by an employee to his employer, any service rendered for resale, and certain specifically described sales and services.

Admittedly, Mrs. Wooddell does not rely on these provisions and claims no benefit from them. It is her contention that she is excluded or excepted from the taxing statute under that portion of W.Va.Code, 11--15--8, which imposes the tax on '. . . all services, Except professional . . . services . . .' (emphasis supplied). This, however, is not helpful to the taxpayer in this case. She cannot establish that she renders nontaxable professional services merely by saying that interior decorating is a profession and that services rendered in connection therewith are, therefore, professional services. Her contention is made difficult by the absence of any definition of 'professional services' as used in W.Va.Code, 11--15--8, and is not helped by the definition of 'service' in W.Va.Code, 11--15--2(9), which includes 'nonprofessional activities' but does not define 'nonprofessional activities.'

The absence of such definitions makes it impossible for us to say that this statute is clear and unambiguous. Consequently, there is no room for the application of the well-recognized principle that a statute which is clear and unambiguous should be applied and not construed. See Tax Comm'r v. Veterans of Fgn. Wars, 147 W.Va. 645, 129 S.E.2d 921 (1963). See also Eggleton v. State Workmen's Compensation Comm'r, W.Va., 214 S.E.2d 864 (1975); Russell Transfer, Inc. v. Moore, W.Va., 212 S.E.2d 433 (1975), and State v. Carman, 145 W.Va. 635, 116 S.E.2d 265 (1960).

Generally, tax laws are strictly construed, and when there is doubt regarding the meaning of such laws they should be construed in favor of the taxpayer. See State ex rel. Battle v. Baltimore and Ohio Railway Co., 149 W.Va. 810, 143 S.E.2d 331 (1965), Cert. denied, 384 U.S. 970, 86 S.Ct. 1859, 16 L.Ed.2d 681 (1966), an State v. Carman, supra. However, a tax law under which a person claims an exemption is strictly construed against the person claiming the exemption. Owens-Illinois Glass Co. v. Battle, 151 W.Va. 655, 154 S.E.2d 854 (1967); Tax Comm'r v. Veterans of Fgn. Wars, supra, and State v. Carman, supra.

In interpreting the statute involved in this case, we are guided by and apply the following principles of statutory construction: (1) Effect should be given to the spirit, purpose and intent of the lawmakers without limiting the interpretation in such a manner as to defeat the underlying purpose of the statute; See Tax Comm'r v. Veterans of Fgn. Wars, supra; (2) Each word of a statute should be given some effect and a statute must be construed in accordance with the import of its language; See Wilson v. Hix, 136 W.Va. 59, 65 S.E.2d 717 (1951), and Fielder and Turley v. Adams Express Co., 69 W.Va. 138, 71 S.E. 99 (1911); (3) Undefined words and terms used in a legislative enactment will be given their common Ordinary and accepted meaning; See Davis v. Hix, 140 W.Va. 398, 80 S.E.2d 404 (1954), and Miners v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941); and (4) If technical...

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