Summary
In Cole Natl. Corp. v. Collins, 46 Ohio St.2d 336, 339, 348 N.E.2d 708 (1976), this court effectively held that "packaging" can be an incidental function, meaning that even when the packaging definition applies, that is not determinative of the taxable status of the transactions.
Summary of this case from Accel, Inc. v. TestaOpinion
No. 75-1170
Decided June 8, 1976.
Taxation — Sales tax — Exceptions — R.C. 5739.02(B)(15) — Display cases and racks — Not "packages," when.
Display cases and racks whose predominant economic purpose to the taxpayer is to facilitate the marketing of its products are not "packages" within the meaning of the sales tax exception provided by R.C. 5739.02(B)(15).
APPEAL from the Board of Tax Appeals.
This is an appeal by the taxpayer, Cole National Corporation, from a decision of the Board of Tax Appeals rendered November 21, 1975, which affirmed a final order of the Tax Commissioner assessing sales and use taxes on purchases by the taxpayer of display cases and racks.
Another portion of the assessment, relating to machines loaned by Cole to its customers for use in making keys, was also appealed to this court. Taxpayer has concluded that the board correctly decided the issue as to key machines, and hereby abandons that assignment of error.
During the taxable period, the taxpayer manufactured and sold knives, numbers, letters, and signs to independent retailers such as Woolworth, Kresge, and Sears for final marketing. During the same period, the taxpayer purchased display cases and racks, which were subsequently transferred to retailers.
Upon receipt of an initial order for an assortment of knives from a retailer, the taxpayer mounts a specimen of each type of knife on a pegboard. The pegboard is placed in a display case so that the knives are visible to the consumer. The remainder of the knives ordered by the retailer is stored inside the display case. The display cases come in several models, including wooden floor displays and revolving or stationary counter models.
In filling an initial order for an assortment of letters, numbers, or signs, the taxpayer places the ordered items on individual hooks, which are part of a display rack. Those racks, like the display cases, come in different sizes and styles, but each serves the function of aiding the retailer in displaying the taxpayer's products.
Taxpayer's products are not easily broken or marred, but require the organization provided by the display cases and racks to be marketable. All the items on an initial order are shipped on display racks or in display cases. Re-orders are shipped in cardboard boxes without display cases and racks.
The cause is now before this court pursuant to an appeal as of right.
Messrs. Jones, Day, Reavis Pogue, Mr. Wallace M. Wright, Ms. Marie C. Grossman and Mr. Bruce J. Havighurst, for appellant.
Mr. William J. Brown, attorney general, and Ms. J. Elaine Bialczak, for appellee.
The issue presented is whether the display cases and racks purchased by the taxpayer are "packages" within the meaning of the sales tax exception provided by R.C. 5739.02(B) (15). That section, in pertinent part, provides that sales taxes do not apply to the following:
The sales tax exception provided by R.C. 5739.02(B) (15) is made expressly applicable to the uses of property by R.C. 5741.02(C) (2), and is intended herein to apply to all uses of property as well as sales.
" Sales to persons engaged in any of the activities mentioned in division (E) (2) of Section 5739.01 of the Revised Code, of packages, including material and parts therefor, and of machinery, equipment, and material for use in packaging tangible personal property produced for sale, or sold at retail. Packages include bags, baskets, cartons, crates, boxes, cans, bottles, bindings, wrappings, and other similar devices and containers, and `packaging' means placing therein." (Emphasis added.)
The taxpayer argues that this court should follow its decision in Custom Beverage Packers v. Kosydar (1973), 33 Ohio St.2d 68, 73, wherein we held that unbound pallets on which cases of bottles were placed were not packages, because they restrained the movement of those bottles in only one direction — downward. We noted that while a package need not fully enclose the packaged object, it must restrain movement in more than one plane of direction. The taxpayer claims that its display cases and racks are packages because they meet the aforementioned test.
Although Custom Beverage Packers sets forth an essential characteristic of a package, it does not provide the sole criterion for making such a determination. Not all items that restrict movement in more than one direction are packages. In fact, we limited Custom Beverage Packers to its facts by stating, at page 73:
"We do not here decide whether pallets to which cases or other objects are bound are tax exempt."
The taxpayer also argues that its sole use of the display cases and racks was for packaging, and that the taxpayer itself did not use them for storage or display, although they were designed for that purpose, and so used by the ratailer. Essentially, the taxpayer is arguing that even though the display cases and racks were subsequently used for another purpose by retailers, the court should focus only on whether those items were used as packages by this taxpayer.
Taxpayer's corporate tax manager, during testimony before the Board of Tax Appeals, admitted that the display cases and racks are not solely packages, but that they are included with every initial order as a service to the independent retailer, where they function as a marketing aid. While the taxpayer emphasizes the necessity of its display cases and racks to properly segregate, organize and place its products in a marketable state, it admits that reorders are shipped in cardboard boxes.
A typical sales brochure used by the taxpayer to solicit orders for entire assortments of knives contained statements such as the following:
"Our new displays do more than hold knives. They merchandise. Their smart, contemporary designs enhance the Kabar quality image. They are pilferproof. And they provide key lock space for back-up stock. * * *"
In effect, the taxpayer intends the display cases and racks to be used by its independent retailers as service centers where the taxpayer's products can be merchandized. The display cases and racks serve as a vital cog in the chain of distribution of the taxpayer's products. Their function as packaging is incidental to their use as a marketing aid.
In Custom Beverage Packers v. Kosydar, supra, at page 73, this court stated that the principles of construction announced in National Tube Co. v. Glander (1952), 157 Ohio St. 407, apply to interpreting R.C. 5739.02(B) (15). In paragraphs one and two of the syllabus in National Tube Co., we delineated those principles:
First, that "the presumption obtains that every sale or use of tangible personal property in this state is taxable;" and second, that "[s]tatutes relating to exemption or exception from taxation are to be strictly construed, and one claiming such exemption or exception must affirmatively establish his right thereto."
Tested against these principles, taxpayer's arguments must fail. This court does not believe it should focus only on the taxpayer's physical use of the display cases and racks as packages, while ignoring their predominant economic purpose and function as integral parts of an overall marketing plan. We find that the predominant economic purpose of these articles to the taxpayer was to facilitate the marketing of its products, rather than to package same, and therefore the order of the Tax Commissioner, denying a tax exception under R.C. 5739.02(B) (15), was neither unreasonable nor unlawful, and is affirmed.
Decision affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.