Fenix Construction Company of St. Louis and Five Star Ready-Mix Concrete Company and Horstmeyer Enterprises, Inc. v. Director of Revenue , 2014 Mo. LEXIS 332 ( 2014 )

SUPREME COURT OF MISSOURI
en banc
FENIX CONSTRUCTION COMPANY of )
ST. LOUIS and FIVE STAR READY- )
MIX CONCRETE COMPANY and )
HORSTMEYER ENTERPRISES, INC., )
)
Appellants, )
)
vs. ) No. SC93915
)
DIRECTOR of REVENUE, )
)
Respondent. )
PETITION FOR REVIEW OF A DECISION OF
THE ADMINISTRATIVE HEARING COMMISSION
The Honorable Sreenivasa Rao Dandamudi, Commissioner
Opinion issued November 25, 2014
Fenix Construction Company of St. Louis, Five Star Ready-Mix Concrete
Company and Horstmeyer Enterprises, Inc., (collectively, Taxpayers) sought
refunds for sales and use taxes paid on materials used to construct tilt-up concrete
walls. Taxpayers asserted that the materials fell within the section 144.054.2 1 tax
exemption for materials used in “manufacturing … any product.” The director
denied the refund claims. The Administrative Hearing Commission (AHC)
1
All statutory citations are to RSMo Supp. 2009.
determined that the tax exemption was inapplicable because the tilt-up concrete
walls were not a “product” as that term is used in section 144.054.2. 2 The AHC’s
decision is affirmed.
I. Facts
Fenix is a construction contractor that performs concrete construction
services, including the construction of “tilt-up” concrete wall panels. Tilt-up work
involves casting concrete and reinforced steel wall panels on the ground and then
tilting the wall panels into position as walls of the building. Tilt-up wall panels
are made at the construction site because it is cost-prohibitive to construct them
off-site and transport them to the construction site. According to Fenix, each
panel is custom made for the specific job in accordance with the detailed
specifications of the customer.
In 2011 and 2012, Taxpayers filed sales tax refund claims for their
purchases of materials used in the tilt-up process. The director of revenue denied
those claims. The AHC also denied the refund claims. Taxpayers filed a petition
for review.
II. Standard of Review
The AHC’s decision will be affirmed if: (1) it is authorized by law; (2) it is
supported by competent and substantial evidence based on the whole record;
2
Taxpayers filed separate refund claims with the director of revenue. Each claim was
denied. The AHC consolidated the claims. This Court has jurisdiction because
resolution of this appeal requires construction of the revenue laws of the state of
Missouri. Mo. Const. art. V, sec. 3.
(3) mandatory procedural safeguards are not violated; and (4) it is not clearly
contrary to the reasonable expectations of the legislature. Section 621.193. This
Court reviews the AHC’s interpretation of section 144.054.2 de novo. Aquila
Foreign Qualifications Corp. v. Dir. of Revenue, 362 S.W.3d 1, 3 (Mo. banc
2012). Tax exemptions are strictly construed against the taxpayer. Id. The
taxpayer bears the burden of proving clearly and unequivocally that the exemption
applies. Id. Any doubt regarding the applicability of an exemption is resolved in
favor of taxation. Id.
III. Analysis
Section 144.054.2 provides sales and use tax exemptions for “materials
used or consumed in the manufacturing, processing, compounding, mining, or
producing of any product ....” Thus, Taxpayers must demonstrate, clearly and
unequivocally, that the tilt-up concrete wall panels are a manufactured product.
The legislature has not defined the word “product” as it is used in chapter
144. 3 “Absent a statutory definition, the primary rule of statutory interpretation is
to give effect to legislative intent as reflected in the plain language of the statute.”
3
The other issue that was presented in this case to the AHC was whether constructing tilt-
up walls constitutes “manufacturing, processing, or producing” for purposes of Section
144.054.2. Section 144.054.2 contains no language pertaining to construction. Rather,
the plain and ordinary language of section144.054.2 shows intent to exempt materials
used in the manufacturing process in an industrial setting, as opposed to construction
sites. Had the legislature intended to exempt construction activities, it could have
included terminology referencing construction activities as it has done in other statutes
included in chapter 144. Because the AHC chose not to address this issue, and this Court
affirms the determination that a tilt-up wall is not a “product” within the meaning of
section 144.054.2, it is not necessary to resolve that issue in this case.
Brinker Missouri, Inc. v. Dir. of Revenue, 319 S.W.3d 433, 437-38 (Mo. banc
2010). When interpreting a statutory tax exemption, the interpretation must
adhere to the requirement of strict construction. Balloons Over the Rainbow, Inc.
v. Dir. of Revenue, 427 S.W.3d 815, 825 (Mo. banc 2014).
Although chapter 144 does not define the term “product,” this Court has,
for nearly 20 years, held that the term “product” means “an output with a market
value.” Mid-America Dairymen, Inc. v. Dir. of Revenue, 924 S.W.2d 280, 283
(Mo. banc 1996); see also Int’l Bus. Machines Corp. v. Dir. of Revenue, 958
S.W.2d 554, 557 (Mo. banc 1997), E& B Granite, Inc. v. Dir. of Revenue, 331
S.W.3d 314, 316 (Mo. banc 2011). To prove that a particular good or service
constitutes a “product,” the taxpayer does not have to actually market the product,
but “it is incumbent on the taxpayer to prove the existence of a market, whether or
not the product is actually marketed by the taxpayer.” Mid-America Dairymen,
924 S.W.2d at 283.
A “market” is “a sphere within which price-making forces operate and in
which exchanges in title tend to be followed by actual movement of goods.”
WEBSTERS’S THIRD NEW INTERNATIONAL DICTIONARY 1383 (1966). A strict
construction of the term “product” as used in section 144.054.2 indicates that the
fundamental quality defining a product as an “output with a market value” is that
the price of the alleged product is set primarily by competing buyers and sellers.
The fact that the price of a product is set primarily by competing buyers and
sellers necessarily implies that a good or service qualifies as a product only if it
can be marketed to various buyers.
The record in this particular case demonstrates that Taxpayers have not
proven the existence of a market for their tilt-up concrete walls. At the AHC
hearing, Fenix’s founder testified as follows:
Q: Now, given that each wall panel is designed for a
particular building, you can’t sell that wall panel to any other
person could you?
A: No.
Q: And there is no market of people going – somebody
doesn’t drive to your site and look at [the] left corner of that
building and say that’s amazing. I’ll offer you double what the
contractor is paying you for that panel?
A: That’s never happened.
Q: And it is really unlikely to happen, isn’t it, because that
panel is designed for that particular building isn’t it?
A: Yes.
The foregoing testimony demonstrates that Fenix’s construction of tilt-up
concrete wall panels for particular buildings does not yield a marketable product
for purposes of section 144.054.2. The walls are constructed on site, can be used
only for that particular building, and have not demonstrated actual or potential
market value to any buyer other than the building owner. The tilt-up wall panels
are not a product pursuant to section 144.054.2. 4
4
Taxpayers assert that the fact that Fenix can sell its tilt-up walls demonstrates the
existence of a market. The fact that Fenix can sell its walls may demonstrate a market for
It was “incumbent on [Taxpayers] to prove the existence of a market” for
its tilt-up wall panels, and Taxpayers did not do so. See Mid-America Dairymen,
924 S.W.2d at 283. The AHC determined correctly that Taxpayers did not
establish that Fenix’s tilt-up concrete wall panels are a “product” for purposes of
section 144.054.2. 5
The AHC’s decision denying the refund claim is affirmed.
_________________________________
RICHARD B. TEITELMAN, Judge
All concur.
Fenix’s construction services. The refund claim is, however, premised on the assertion
that tilt-up walls are a marketable “product.” As noted, Taxpayers have not demonstrated
a market for the walls themselves, each of which is designed for a particular part of a
particular building and has no demonstrated use beyond the specific construction project
for which the wall was constructed.
5
This result is not inconsistent with E& B Granite. 331 S.W.3d 314 (Mo. banc 2011). In
E& B Granite, the issue was whether granite countertops were “products” so that the
taxpayer was exempt from sales and use taxes on its purchase of granite slabs used to
make the countertops. Id. at 315. The director conceded that the countertops were
“output[s] with a market value” and, instead, argued that the installed countertops were
not products because they were not tangible personal property. Id. at 316. E.B. Granite
did not analyze whether the countertops were “outputs with a market value.”