The Reconstruction of Morton Buildings; Part 2

• is stored, used, or otherwise consumed in the Commonwealth;
• is purchased from any vendor; and
• was purchased for storage, use, or consumption within the Commonwealth.

The Commissioner in this case conceded that the building components were not taxable, because Morton did not purchase them, but rather, produced them. The Commissioner sought to tax the building component components instead, such as lumber, nails, and other raw materials. The Commissioner claimed that:

the raw materials, which Morton bought out-of-State, are but lightly transformed when they appear in Massachusetts as building components.[t]he lumber that Morton brought to Massachusetts as a [l]ower [c]olumn is the lumber Morton purchased connected to nails minus the lumber cut off or drilled out during fabrication. Even though the lumber and nails become part of the [l]ower [c]olumn they each retained a distinct physical existence and are subject to the use tax.

The Court disagreed with the Commissioner's contention. It held that "one could not disassemble a truss and have recognizable lumber, steel, and nails to be used or consumed in Massachusetts." Therefore, Morton's raw materials were not subject to Massachusetts use tax.

In Morton Buildings, Inc. v. Commissioner of Revenue, 488 NW2d 254, (1992) ("Morton Buildings v. Commissioner of Revenue"), the Minnesota Supreme Court reviewed the Minnesota Tax Court's finding that the items of tangible personal property Morton used, stored, or consumed in Minnesota were not the raw materials they purchased, but the building components and hardware made out of the raw materials, which are "new and different items of tangible personal property." Thus, the raw materials on which the use tax was imposed were not used, stored, or consumed in Minnesota, but were used, stored, and consumed in Morton's building component factories outside Minnesota.

Minnesota Statute   297A.14 imposed a use tax on tangible personal property when all three of the following conditions are met:

• the item of tangible personal property must be used, stored, or consumed in Minnesota;
• the item of personal property must be purchased; and
• the purchase of the item of personal property must have been for use, storage, or consumption in Minnesota.

The Minnesota Supreme Court reversed the Tax Court's decision. The Supreme Court found that Morton's premise in Minnesota and in other states was faulty. The opinion stated that:

This court never has required that raw materials be unaltered when used in Minnesota in order to trigger liability for the use tax.

The Minnesota Legislature acted quickly after this case was decided. In 1992, the legislature added language to Minn. Stat. Ann.   297A.14 which imposed a use tax on every person who uses, stores, or consumes tangible personal property in Minnesota which has been manufactured, fabricated, or assembled by the person from materials, either within or without the state. This insertion effectively blocked future Morton Building's - type claims.

Later, in the year 2000, the Minnesota Legislature repealed Minn. Stat. Ann.   297A.14 and replaced it with the current use tax statute, Minn. Stat. Ann.   297A.63, which also effectively impedes a Morton Building's - type claim by imposing the use tax as follows:

Morton also filed a complaint in Missouri, Morton Buildings, Inc. v. Director of Revenue, 88-001879RZ (1989) ("Morton Buildings v. Director of Revenue"), where Morton asserted that it was entitled to a refund of use taxes paid on raw materials used in another state to manufacture goods which are eventually assembled into a building in the state. Missouri imposed a use tax upon the following:

• A tax is imposed for the privilege of storing, using, or consuming within this state any article of tangible personal property purchased on or after the effective date for sections 144.600 to 144.745 in an amount equivalent to the percentage imposed on the sales price in the sales tax law in section 144.020. This tax does not apply with respect to the storage, use, or consumption of any article of tangible personal property purchased, produced, or manufactured outside this state until the transportation of the article has finally come to rest within this state or until this article has become commingled with the general mass of property to this state.
• Every person storing, using, or consuming in this state tangible personal property purchased from a vendor is liable for the tax imposed by this law.

The court in Missouri considered several cases including International Business Machines v. David, 408 S.W.2d 833 (1966) ("IBM v. David") which ruled that IBM was not liable for use tax on the raw materials which it used outside of Missouri to produce the computers that it brought into Missouri for sale to its customers. The court in Morton v. Director states that although the lumber, steel sheeting, nails, and other raw materials were useful before they arrived in Missouri, they did not remain individual entities upon which the Director could charge the use tax. If the materials had still remained raw materials when they entered Missouri, then the court may have ruled otherwise in Morton v. Director. As the fact remained that the raw materials were not still raw materials, but rather, work in processes by the time they entered the state, then the Missouri court held that Morton owed no use tax on the raw materials.

In Southwestern Bell Yellowpages, Inc. v. Director of Revenue, 00-1500 RV, Missouri Administrative Hearing Commission (2001), Southwestern Bell Yellow Pages, Inc. ("Southwestern Bell") claimed that it was owed a refund of use tax paid on raw materials and printing charges used to manufacture yellow page telephone directories. The court reviewed the same use tax law as it reviewed in its decision for Morton.

Southwestern Bell's paper was purchased outside of the state and was consumed and transformed into telephone directories before the directories entered the state. Southwestern Bell relied on the reasoning in IBM v. David, as it was used by Morton in Morton v. Director, in which the materials changed their form before entering the state. The Director argued that because the paper was still paper, the paper did not change its form as it did in IBM v. David. Southwestern Bell argued that the paper was a raw material, and that once it entered the state, it was no longer a raw material, but rather, a telephone directory. The court agreed with Southwestern Bell, relating the case to Morton Buildings v. Director. The Director subsequently appealed this decision to the Supreme Court of Missouri (the "Supreme Court"). That decision is analyzed below.

In Southwestern Bell Yellow Pages, Inc. v. Director of Revenue, 94 SW3d 388 (2002), the Supreme Court reviewed all of the same items that the previous decision considered in the case. However, the Supreme Court noted that Southwestern Bell actually used the paper within Missouri because Southwestern Bell exercised rights over the raw paper incident to its ownership when it fulfilled its advertising contracts with Missouri businesses. Southwestern Bell produced directories from the paper, and transported the paper into Missouri.

The Supreme Court also reviewed the legislative intent, an often vague and subjective concept, and stated that the legislative intent supports the plain language interpretation of the code. The Supreme Court ruled that Southwestern Bell's purchase of the paper intended for telephone directories in Missouri constituted a use. The Supreme Court further ruled that Southwestern Bell should pay the use tax because Southwestern Bell would otherwise have an advantage over other taxpayers that did not purchase raw materials outside of the state. The Supreme Court ultimately found that the previous opinion did not conform to the language of the statute or the intent of the legislature.

Morton next filed suit in New York In the Matter of Morton Buildings, Inc. v. Roderick G. W. Chu et al., Constituting the State Tax Commission of the Department of Taxation and Finance of the State of New York, 126 AD2d 828, 510 NYS2d 320 (1987) ("Morton Buildings v. State Tax Commission"). The facts of the case are once again the same as in the above circumstances. The State of New York ruled that Morton was liable for New York use tax on the cost of certain raw materials that were constructed into building components. Use tax is imposed by N.Y. Tax Law   1110(A) if tangible personal property:

• is used within the state, and
• has been "purchased at retail."

Use is defined as the exercise of any right or power over tangible personal property by the purchaser thereof and includes but is not limited to any affixation to real or personal property. The Tax Commission argued that the raw materials that Morton purchased were used in the state because they were affixed to real property. However, Morton contended that the raw materials were not affixed to real property because they were wholly consumed and transformed during the manufacturing process, and that the components, and not the raw materials, are affixed to real property.

The court considered that the Tax Commission's interpretation was an extreme interpretation of the tax code because it would have rendered a substantial portion of the tax law meaningless. For example, under N.Y. Tax Law   1110(B), a manufacturer of finished products used in the construction of capital improvements could be taxed at the cost of raw materials only if the manufacturer also sells the finished product in the regular course of business. The Tax Commission's interpretation of the tax law would be in clear conflict with this law. The court was unprepared to accept a viewpoint in clear conflict with any part of the tax code. Therefore, the New York court ruled that Morton was correct in its assertion that the raw materials did not fall within the scope of the use tax imposed by N.Y. Tax Law   1110(A).

The Morton Buildings issue was tested again in 2003 In the Matter of: The Denial of Claims for Refund of Sales and Use Tax for the Periods of November 1, 1993 through June 30, 1996 and January I, 1997 through August 21, 1999 by the Secretary of Revenue Secretary of Revenue of the State of North Carolina v. Morton Buildings, Inc., 405, 03/18/2003.

N.C. Gen. Stat.   105-164.6(a), provided as follows:

An excise tax ... is imposed on the storage, use, or consumption in this State of tangible personal property purchased inside or outside the State for storage, use or consumption in this State 

N.C. Gen. Stat.   105-164.6(b) provides in relevant part:

An excise tax ... is imposed on the purchase price of tangible personal property purchased inside or outside the State that becomes a part of a building or other structure in the State.

Morton contended that use taxes should be refunded on the grounds that the purchases on which those taxes were paid are not subject to use tax under N.C. Gen. Stat.   105-164.6. As before, Morton claimed that it had made no taxable "purchases" because it had originally acquired raw materials, not the building components eventually imported into North Carolina; that the raw materials were "used" outside the state; and that the building components had not been purchased, but rather "manufactured."

The Department of Revenue ("DOR") took a different standpoint than in most other states. The DOR claimed that since the taxpayer entered into agreements to fabricate and erect prefabricated buildings at locations in North Carolina, the taxpayer met the definition of a contractor. Contractors are deemed to be the users or consumers of tangible personal property that is used in the performance of contracts, and are liable for the applicable state and local sales or use tax on their purchases of materials that are used or consumed.

The Court denied Morton's contentions, and found that the raw materials were not first used outside of North Carolina before being incorporated into buildings within North Carolina. The Court reasoned that the business purpose, or intention of using the building components in North Carolina added weight against the argument that the components were first used outside of the state. The record shows that the raw materials, such as lumber and steel, were assembled outside of North Carolina only for the business purpose of subsequently incorporating the materials into structures erected in North Carolina. Therefore, they were used first in North Carolina.

The Court also agreed with the DOR's contention that the building components were incorporated into real property, and therefore, Morton qualified as a contractor for sales and use tax purposes. All of Morton's purchases of tangible personal property for incorporation into realty were subject to use tax.

Texas imposes a use tax upon the storage, use, or other consumption in this state of a taxable item purchased from a retailer for storage, use, or other consumption in this state. ⁸ In a landmark decision known as Sharp v. Morton Buildings, Inc., 953 SW2d 300 (1997) ("Sharp v. Morton Buildings"), Morton challenged the use tax imposed upon its raw materials.

Morton would charge customers a lump sum that included both the labor to assemble the building and the building components. Morton asserted that Morton was not subject to Texas use tax on its raw materials because the materials were first used outside of the State of Texas to construct the building components. Texas Administrative Code tit. 34,   3.291(b) states that a lump-sum contractor is a "consumer of all materials, supplies, and equipment used or incorporated into a customer's property. As a consumer, a contractor must pay tax to suppliers at the time the materials are purchased." Therefore, because Morton was the deemed user of the materials purchased such as lumber, metal, windows, and doors, the State of Texas imposed the use tax upon those materials. Even though the materials were all purchased out of the state, and were assembled into building components out of the state, Texas imposed the use tax on the components because Morton shipped them to Texas for use in Texas.

Morton claimed the use tax could only be imposed upon items of tangible personal property purchased for use, storage, or consumption in Texas. Morton contended that the raw materials used to construct its building components were first used, stored, or consumed outside of Texas when they were converted into the building components. Morton's subsequent contention was that the building components themselves were not purchased, and therefore, could not be taxed in Texas.

The State of Texas contended that the raw materials were consumed in the state by Morton, and therefore, should be subject to Texas use tax. The trial court found that Morton should not owe use tax because the building components were manufactured, rather than purchased building components. However, the court also considered whether the building components were merely raw materials conjoined into something else, and therefore, the Comptroller would have made a correct assertion.

The court found that the building components were distinct from the constituent raw materials, and that, the raw materials were first "used" outside of Texas. The court concluded that the building components were not subject to use tax pursuant to Tex. Tax Code Ann.   151.101 (Vernon 2002). The court summarized its position as follows:

Because the lumber and steel are not used in their raw form in Texas but instead are used after their transformation into building components, they are not taxable. Because Morton did not purchase the building components, the components are not taxable. Our conclusion that the manufacturing process converts the raw materials into something else also blunts the State's argument that the raw materials can be used both out of state and in state. Because the raw materials no longer exist, they are not put to a taxable use in Texas. ⁹

Sharp v. Morton specifically addressed the taxability of raw materials converted by a contractor for use within the State of Texas. However, the same reasoning used by the Texas appellate court may currently be applied to many other types of taxpayers for many other items. Anything that is purchased outside of the state and converted into another item may be considered as first "used" outside of the state.

Applying the Texas case, if a taxpayer purchased paper outside of the state for the purpose of transforming that paper into a catalog or pamphlet while it was still outside of the state, the taxpayer would not owe Texas use tax on the paper and ink used to create the pamphlet, because the paper and ink would be first used outside of the state. If a promotional item such as a t-shirt was purchased outside of the state and the taxpayer imprinted upon it before shipping the t-shirt to Texas, then the t-shirt would be first used outside of the state and would not be subject to Texas use tax.

However, the Texas Legislature passed House Bill 2425, which amended the Tex. Tax Code Ann.   151.011(a) to read as follows:

Except as provided by Subsection (c) of this section, "use" means the exercise of a right or power incidental to the ownership of tangible personal property over tangible personal property, including tangible personal property other than printed material that has been processed, fabricated, or manufactured into other property or attached to or incorporated into other property transported into this state, and, except as provided by Section 151.056(b) of this code, includes the incorporation of tangible personal property into real estate or into improvements of real estate whether or not the real estate is subsequently sold. (Emphasis added).

The Vermont Department of Taxes appealed a Washington Superior Court order granting a use tax refund to Morton Buildings for taxes on raw materials it purchased outside of Vermont, assembled into building components at its Gettysburg, Pennsylvania factory, and then brought into Vermont to construct prefabricated buildings in Morton Buildings, Inc. v. Vermont Department of Taxes, 167 Vt 371, 705 A2d 1384, (1997) ("Morton Buildings v. Vermont").

In order for the department to impose a use tax on the materials Morton incorporates into its building components and thereafter into its buildings, the department would have to show that (1) Morton purchased tangible personal property at retail, and (2) Morton used the same tangible personal property in Vermont.

Morton contended that the tangible personal property it used to construct buildings in Vermont is not the same tangible personal property that it purchased at retail. Morton asserted that through its manufacturing process, the raw materials it purchased at retail were transformed into different items of tangible personal property. For this reason, Morton asserted that the two requirements to impose a use tax on the building components were not met. Thus, the building components it used in Vermont were not, it argues, purchased at retail.

The Court did not accept Morton's arguments. First, the Court declared that the use tax statute on which Morton relied did not specifically state that raw materials that are used in manufacturing lose their separate identity as personal property purchased at retail are subject to a use tax. The use tax language and the definition of tangible personal property are both very broad. The definition of "use" given in Vt. Stat. Ann. tit. 32,   9701(13) is as follows:

Use: means the exercise of any right or power over tangible personal property by the purchaser thereof and includes, but is not limited to, the receiving, storage or any keeping or retention for any length of time, withdrawal from storage, any installation, any affixation to real or personal property, or any consumption of that property.

The Court found that the building components were encompassed in this statute as tangible personal property subject to use tax. Next, the Court declared that the transformation of raw materials into building components did not meet the definition of manufacturing. The Court could not discern how the trusses, lumber, and other component parts could be considered new and different items from their raw materials. Finally, the Court held that to rule in favor of Morton would be unfair to similarly situated taxpayers. A taxpayer purchasing its raw materials from New Hampshire would not have to pay taxes on those items, where a taxpayer purchasing all materials within Vermont would not pay tax on its materials.

Morton successfully argued its case in Morton Buildings, Inc. v. Wisconsin Department of Revenue, 89-S-438, (1991) ("Morton Buildings v. Wisconsin"). The Court found that the raw materials used to create building components were stored in out-of-state warehouses and then used or consumed out-of-state.

Since the Wisconsin use tax was premised on the "storage, use or other consumption in this state of tangible personal property ... purchased from any retailer ..." ¹⁰ , the Court agreed that the requisite storage, use, or consumption of raw materials occurred outside of Wisconsin when Morton fabricated the building components.

The Court also agreed with Morton and ruled that the building components were never purchased from any retailer, so did not come into the definition of taxable items.

Although this decision was one of the most straightforward of all of Morton's outcomes, the impact was fairly large for Wisconsin taxpayers. Most notably, the Wisconsin Legislature changed the statute Wis. Stat. Ann.   77.53 effective August 12, 1993 to impose a use tax upon:

the storage, use or other consumption of tangible personal property manufactured, processed or otherwise altered, in or outside this state, by the person who stores, uses or consumes it, from material purchased from any retailer.

The repeal and reissuance of the law effectively bars future Morton Buildings type claims. However, the law change was not retroactive, so these types of claims may still be valid.

Wis. Admin. Code   11.68(4)(a) also provides added guidance on suppliers' sales of building materials to contractors who incorporate the materials into real property in performing construction activities. The regulation specifies that raw materials purchased outside of Wisconsin used by a contractor in manufacturing tangible personal property outside of Wisconsin, or that are fabricated or altered outside of Wisconsin by a contractor so as to become different or distinct items of tangible personal property from the constituent raw materials, and are subsequently stored, used or consumed within Wisconsin by that contractor are all subject to use tax.