IBM Corporation, Respondent/Cross-Appellant v. Director of Revenue, Appellant/Cross-Respondent.

SUPREME COURT OF MISSOURI
en banc
IBM CORPORATION, )
)
Respondent/Cross-Appellant, )
)
vs. ) No. SC94999
)
DIRECTOR OF REVENUE, )
)
Appellant/Cross-Respondent. )
PETITION FOR REVIEW OF A DECISION OF THE ADMINISTRATIVE
HEARING COMMISSION
The Honorable Sreenivasa Rao Dandamudi, Commissioner
Opinion issued April 5, 2016
The Director of Revenue seeks review 1 of the Administrative Hearing
Commission’s decision that IBM Corporation is entitled to a use tax refund under section
144.054.2 2 for its sales of hardware and software to MasterCard International, LLC, for
MasterCard’s use in processing credit and debit card transactions. MasterCard
communicates information between merchants and banks and determines whether
customers’ purchases should be approved and whether a bank owes money or fees on the
transaction. The Commission found that MasterCard’s use of the hardware and software
qualified as “manufacturing a product” as that term is used in the use tax exemption set
1
Although IBM is also listed as a cross-appellant, it determined not to pursue its cross-
appeal before this Court.
2
Unless otherwise indicated, citations are to RSMo 2000 or RSMo Supp. 2013.
out in section 144.054.2. This Court reverses.
IBM is not entitled to an exemption from use tax because MasterCard’s use of the
hardware and software does not qualify as the “manufacturing of any product” under
section 144.054.2, which provides an exemption from sales or use tax for “equipment[]
and materials used or consumed in the manufacturing, processing, compounding, mining,
or producing of any product ….” Interpretation of the word “manufacturing” (and of its
near synonym, “processing”) as used in this statute is governed by the well-established
principle that an exemption must be narrowly and strictly interpreted against the taxpayer
according to its plain and ordinary meaning. 3
While IBM is correct that the organization and creation of intangible products
such as computer data can constitute manufacturing, it does not follow that the term
“manufacturing” should be broadly interpreted to include MasterCard’s use of computers
to transmit financial information between its customers and banks. This expansive
reading of “manufacturing” goes too far. Products, whether tangible or intangible, still
must undergo “the alteration or physical change of an object or material in such a way
that produces an article with a use, identity, and value different from the use, identity, and
value of the original,” Galamet, Inc. v. Dir. of Revenue, 915 S.W.2d 331, 333 (Mo. banc
1996), to be manufactured.
Here, IBM does not create or transform a product; it provides equipment that
3
See, e.g., Ben Hur Steel Worx, LLC v. Dir. of Revenue, 452 S.W.3d 624, 626–27 (Mo.
banc 2015); Union Electric Co. v. Dir. of Revenue, 425 S.W.3d 118, 124 (Mo. banc
2014); Brinker Missouri, Inc. v. Dir. of Revenue, 319 S.W.3d 433, 437 (Mo. banc 2010).
allows merchants to check their customers’ credit information while completing and
approving a purchase. If such transmission of information is manufacturing, then so is
the use of any computer to answer a customer’s query. If the legislature wished to
exclude from the use tax all computers used by financial institutions to provide credit
information, or all computers used to answer customer queries, it could have done so. Cf.
Utilicorp United, Inc. v. Dir. of Revenue, 75 S.W.3d 725 (Mo. banc 2001). But it did not.
I. STATEMENT OF FACTS AND PROCEDURAL HISTORY
MasterCard purchased computer hardware and software from IBM for use in
providing various financial services to its customers. The core services it provided are
what it calls its “ACS” services – authorization, clearing, and settlement of transactions
made with MasterCard-issued credit and debit cards. 4
During “authorization,” when a customer presents a credit or debit card to a
merchant to make a purchase, the merchant sends information concerning the transaction
to the merchant’s bank, called the “acquiring bank.” The acquiring bank sends that
information to MasterCard, which sends it to the bank that issued the credit or debit card
to the customer, called the “issuing bank.” The issuing bank decides whether to accept or
decline the transaction and sends its decision to MasterCard. MasterCard forwards the
issuing bank’s decision to the acquiring bank, which forwards it back to the merchant.
4
Aside from these core ACS services, MasterCard also provides several ancillary
services including “InControl,” “Fraud Scoring,” and data warehousing.
2
In “clearing,” merchants send periodic data concerning their transactions to their
acquiring banks, which communicate the data to MasterCard. MasterCard aggregates the
data received from acquiring banks and calculates the sums due from each issuing bank
to each acquiring bank based on how much the acquiring bank has loaned to its
customers – the merchants. The net amount of funds owed by or to a particular bank is
called a “settlement position.” In “settlement,” MasterCard communicates the settlement
positions it calculated to each issuing bank. If the issuing bank owes money, it remits the
amount owed to MasterCard’s settlement bank, which remits the money owed to each
acquiring bank that is owed money, after deducting its fee.
In 2012, IBM filed a use tax return on behalf of MasterCard for purchases of
computer hardware and software. IBM claimed that the equipment it sold to MasterCard
was exempt from use tax because MasterCard’s activities qualify as “manufacturing”
under section 144.054.2, which exempts “equipment[] and materials used or consumed in
the manufacturing, processing, compounding, mining, or producing of any product ….”
The Commission found against the Director and granted IBM a refund, finding that
MasterCard’s activities could not be distinguished from cases in which the Commission
believed this Court broadly construed the manufacturing exemption, especially
Southwestern Bell Tel. Co. v. Dir. of Revenue, 182 S.W.3d 226 (Mo. banc 2005) (“Bell
II”), in which this Court held that the transmission of a voice over telephone lines
qualified as “manufacturing.” The Director seeks review.
II. STANDARD OF REVIEW
3
Because this case involves the construction of a revenue law of this state, this
Court has exclusive appellate jurisdiction. Mo. Const. art. V, § 3. This Court reviews the
Commission’s interpretation of a revenue statute de novo. Fred Weber, Inc. v. Dir. of
Revenue, 452 S.W.3d 628, 629-30 (Mo. banc 2015). The Commission’s decision will be
“upheld when authorized by law and supported by competent and substantial evidence
upon the whole record, if a mandatory procedural safeguard is not violated” so long as
the Commission’s decision is not contrary to what the Court concludes were the
reasonable expectations of the legislature. § 621.193.
“Tax exemptions are strictly construed against the taxpayer.” Ben Hur, 452
S.W.3d at 626. “A taxpayer must show by ‘clear and unequivocal proof’ that it qualifies
for an exemption, and all doubts are resolved against the taxpayer.” Fred Weber, 452
S.W.3d at 630. This Court interprets statutes in a way that is not hypertechnical but
instead is reasonable and logical and gives meaning to the statute and the legislature’s
intent as reflected in the plain language of the statute at issue. Id.
III. MASTERCARD’S ACTIVITIES ARE NOT THE “MANUFACTURING OF A
PRODUCT” UNDER SECTION 144.054.2
To qualify for the use tax exemption under section 144.054.2, IBM must show: (1)
that MasterCard sold equipment or materials used or consumed (2) during the
manufacturing, processing, compounding, mining, or producing (3) of a product. Fred
Weber, 452 S.W.3d at 630. The taxpayer has the burden of proof. Id. If IBM fails to
meet any of these three criteria, it does not qualify for the exemption under section
4
144.054.2. Id. IBM’s failure to meet the second requirement is dispositive here.
IBM argues that MasterCard’s activities qualify as “manufacturing a product”
under section 144.054.2 and, therefore, it is entitled to an exemption from use tax for the
computer hardware and software it sold to MasterCard. IBM claims that when
MasterCard transmits approvals and disapprovals of credit card transactions and
summarizes the credit card transactions undertaken each day by its customers,
MasterCard organizes, manipulates, and communicates data and by doing so,
manufactures new products during every transaction. This Court disagrees.
While this Court has held that the production of intangible products such as
computer data may be “manufacturing,” it has rejected the idea that every use of a
computer to aid a business or transmit information is “manufacturing.” Such an
interpretation of the term “manufacturing” would be at odds with the fundamental
principle, long recognized and applied in Missouri, that exemptions are to be construed
narrowly against the taxpayer. See, e.g., State ex rel. Mount Mora Cemetery Ass’n v.
Casey, 109 S.W. 1, 4 (Mo. 1908); Salvation Army v. Hoehn, 188 S.W.2d 826, 114 (Mo.
1945); Kansas City Power & Light Co. v. Dir. of Revenue, 783 S.W.2d 910, 911 (Mo.
banc 1990); Union Electric, 425 S.W.3d at 120.
This Court’s decisions in Utilicorp and the Bell cases were among its first attempts
to integrate fast-changing technology into the decades-old exemption for manufacturing.
In Utilicorp, the utility company claimed a manufacturing exemption for the equipment
used in the transmission of electricity to its customers. Utilicorp, 75 S.W.3d at 725–26.
5
The Court rejected this argument, stating, “Though volts and amperes may change during
the transmission and distribution, not every change is ‘manufacturing.’” Id. at 729. In
other words, the fact that some intangible products can be manufactured does not mean
that all intangibles are manufactured products. Equipment used in the transmission and
distribution of electricity, Utilicorp concluded, “is not, in the words of section
144.030.2(4) and (5), ‘used directly’ in manufacturing” and so was not subject to the
exemption. Id.
In Southwestern Bell Tel. Co. v. Dir. of Revenue, 78 S.W. 763 (Mo. banc 2002)
(“Bell I”) and Bell II, the Court faced the issue of how to apply the terms “product” and
“manufacturing” to technologies that could not even have been imagined at the time that
the manufacturing exemption was enacted. As Bell II said:
As technology has evolved, consideration has been given to how the
manufacturing exemption applies when a company’s machinery and
equipment is connected by telephone lines and via data processing
connections. As noted in Bell I, this case requires the application of a
statutory framework that first took shape in the thirties and forties to current
technology.
Bell II, 182 S.W.3d at 229 (internal quotation marks omitted). Bell I similarly had noted:
[T]he growth of modern information and communication technologies has
challenged lawmakers and courts to keep pace with modern industry. One
area of specific difficulty in Missouri has been the application of the
manufacturing sales and use tax exemptions to intangible products or
services.
Bell I, 78 S.W.3d at 766.
6
In an attempt to update the definition of “manufacturing” so that it could apply to
modern technology, Bell I and II stated that voices transmitted over a telephone are
“products” that are “‘manufactured’ into electronic impulses that can be transmitted and
reproduced into an understandable replica.” Bell I, 78 S.W.3d at 768. Bell I continued,
“The end ‘product’ is not the same human voice, but a complete reproduction of it, with
new value to a listener who could not otherwise hear or understand it.” Id.; see also Bell
II, 182 S.W.3d at 232.
IBM premises its argument for the application of the exemption to it on its reading
of Bell I and Bell II as applying a broad rather than strict definition of “manufacturing”
and argues that this Court should expand the manufacturing exemption to include just the
transmission of computer data itself. This broad interpretation, IBM says, would allow
this Court to treat the transmission and analysis of credit information among MasterCard,
its customers and servicing banks as a form of “manufacturing” and so subject to the
exemption. IBM’s argument is inconsistent with the well-settled principle that:
Courts are instructed by the legislature to take the words in a statute in their
plain and ordinary sense. The plain meaning of words, as found in the
dictionary, will be used unless the legislature provides a different
definition.
Lincoln Industrial, Inc. v. Dir. of Revenue, 51 S.W.3d 462, 465 (Mo. banc 2001) (internal
citations omitted). Furthermore, to the extent that Bell I and Bell II invited this proposed
further expansion of the meaning of “manufacturing” in their attempt to apply the term to
new technologies, their reasoning was at variance with the well-established rule that
7
“[e]xemptions from taxation are to be strictly construed against the taxpayer, and any
doubt is resolved in favor of application of the tax.” Brinker, 319 S.W.3d at 436.
Narrowly construing the term “manufacturing” as used in the exemption in
question, MasterCard’s computers do not “manufacture” a tangible or intangible product.
Rather, they receive information, analyze and make determinations based on this
information, and relay these determinations to their customers. This type of activity is
not “manufacturing” under section 144.054.2 or under the common lay terminology one
uses in speaking of analyzing credit card transactions. See Union Electric, 425 S.W.3d at
123. Otherwise, every time a person received an email, made some type of business or
mathematical decision, and sent back an email with that decision, the person would be
said to be “manufacturing” the data sent and received. That these calculations were done
using sophisticated hardware and software does not change the fact that the activity is not
“manufacturing.”
Indeed, even the dissenting opinion in Brinker, which complained of the failure to
give exemptions a broad construction, drew a distinction between transformation of a
product and mere transmission of information, agreeing the latter is not “manufacturing,”
stating:
Acts that fall outside [the meaning of “manufacturing” in] subdivisions (4)
and (5) generally involve repairing or transmitting products rather than
creating output that has a distinct use, identity or value. See Utilicorp
United v. Dir. of Revenue, 75 S.W.3d 725, 729 (Mo. banc 2001)
(transmitting or distributing electricity); Unitog Rental Services v. Dir. of
Revenue, 779 S.W.2d 568, 570–71 (Mo. banc 1989) (cleaning and repairing
uniforms) ….
8
Brinker, 319 S.W.3d at 441–42 (Price, J., dissenting). To give section 144.054.2 the
expansive meaning sought by IBM would conflict with this Court’s century-old
requirement of strictly construing tax exemptions against the taxpayer. See, e.g., Casey,
109 S.W. at 4.
This determination is supported by the principle noted in many of this Court’s
recent cases that it would be inconsistent with the appropriate standard of review to
expand the meaning of words such as “manufacturing” and “processing” beyond their
normal meaning to encompass activity that the legislature easily could have made subject
to the statute had it so intended. Ben Hur and Fred Weber provide good examples of the
application of this principle.
Both cases concerned the meaning of “manufacturing” as used in the exemption
set out in section 144.054.2 for “equipment[] and materials used or consumed in the
manufacturing, processing, compounding, mining, or producing of any product ….” In
Fred Weber, the Court rejected the claim that rock sold to paving companies for use in
making asphalt to lay down pavements should be exempt from sales tax under section
144.054.2 because the process of making asphalt and laying pavements does not qualify
as “manufacturing,” but rather as “construction.” 452 S.W.3d at 628, 631, citing, Union
Electric, 425 S.W.3d at 124. But the word “construction” does not appear in section
144.054.2, “nor do any words that would be associated with construction activities.”
Fred Weber, 452 S.W.3d at 631. This Court held that, had the legislature intended to
9
exempt construction activities, it would have done so as it has in other tax exemptions
within chapter 144, and rejected the taxpayer’s attempt to fit its construction activities
within the manufacturing exemption. Id.
Ben Hur reached this same result in denying a “manufacturing” exemption to a
taxpayer for the purchase of beams used to construct steel frames for commercial
buildings and structures. 452 S.W.3d at 625. This Court held that the taxpayer engaged
in construction, not “manufacturing,” and so the exemption did not apply. Id. at 627.
In other recent cases, this Court has refused to expand the term “manufacturing” to
the broad limits argued for by IBM. In Brinker, this Court rejected the taxpayer’s
argument that a restaurant was engaged in “manufacturing” when it prepares, cooks, and
serves food. 319 S.W.3d at 435. The Court held that “[i]n lay terminology, one does not
speak of a restaurant as manufacturing or producing food or drink; instead, restaurants
prepare, cook and serve food and drink to their customers.” Id. at 438. This holding was
quoted in Union Electric in which the Court held – similarly to Brinker – that a bakery
that made baked goods from scratch was not engaged in “manufacturing.” Union
Electric, 425 S.W.3d at 123–24. “One does not speak of a grocery store bakery
department as ‘processing’ baked goods any more than one speaks of it as manufacturing,
compounding or producing such goods.” Id. at 124. These cases reflect a consensus by
this Court to interpret the term “manufacturing” based on the “common sense meaning of
[the word].” Bell II, 182 S.W.3d at 239 (Stith, J., dissenting).
Applying the principles set out in the above cases here, had the legislature
10
intended financial transactions or computer communications to be subject to the
exemption set out in section 144.054.2, it easily could have added such language to the
statute. As in Fred Weber, no terms relating to credit cards, electronic or computerized
calculations or transmissions are found anywhere in section 144.054.2. They are found
in the exemption for “equipment used or consumed directly in television or radio
broadcasting …,” § 144.054.3 (emphasis added), and in section 144.030.2(9) that
exempts “computers … used in producing newspapers ….” (Emphasis added). In fact,
chapter 148 is titled “Taxation of Financial Institutions” and contains tax statutes relating
to banks, credit institutions, and insurance companies. Had the legislature intended
section 144.054.2 to apply to the processing of credit card transactions, it could have
included additional language within the exemption so indicating, rather than relying on
an unreasonably broad interpretation of “manufacturing” inconsistent with this Court’s
most basic rule of interpreting exemptions narrowly. Moreover, one does not speak of
the transmission and analysis of credit card data as “manufacturing.” For in lay
terminology, such activity is not applicable to the term. To extend the manufacturing
exemption to this activity would be to ignore this Court’s rule strictly construing
exemptions against the taxpayer. MasterCard’s activities are not “manufacturing” under
section 144.054.2, the hardware and software sold by IBM is not exempt from use tax,
and it was error for the Commission to grant IBM’s request for a use tax exemption.
Greater familiarity with computer and other electronic technology and greater
experience with the application of the word “manufacturing” in cases such as Brinker,
11
Ben Hur, Fred Weber and Union Electric, have demonstrated that expanding the statutory
definition of “manufacturing” in the Bell cases put the Court too far down a slippery
slope. To the extent cases such as Bell I and Bell II suggest that an expansive
interpretation of the word “manufacturing” is authorized by the “manufacturing”
exemption, and to the extent that they hold that the electronic transfer of voices is itself
manufacturing as that term is used in the exemption, they are no longer to be followed. 5
IV. CONCLUSION
The Commission erred in reversing the Director’s decision and granting IBM’s
request for a use tax exemption for the computer hardware and software it sold to
MasterCard. MasterCard’s activities do not qualify as the “manufacturing of a product”
under this Court’s strict interpretation of exemptions. IBM is not entitled to a use tax
exemption for the hardware and software it sold to MasterCard. The Commission’s
decision is reversed.
_________________________________
LAURA DENVIR STITH, JUDGE
All concur.
5
In addition, to the extent that the Commission and IBM read this Court’s cases prior to
Bell I and II to permit a broad rather than a narrow reading of exemptions, they are in
error. The Commission should have read the exemption narrowly and held that the mere
transmission and analysis of computer information is not the manufacturing of a product.
12