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05/24/78 BROWNING-FERRIS INDUSTRIES v. STATE TAX

May 24, 1978

BROWNING-FERRIS INDUSTRIES, INC.
v.
STATE TAX COMMISSION *FN1



Suffolk. Appeal from a decision of the Appellate Tax Board.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Taxation, Sales tax: exemption.

The opinion of the court was delivered by: Kaplan

Evidence that a rubbish removal business provided special containers to some customers and made a container service charge in addition to charges for pick-ups and disposals warranted a finding by the Appellate Tax Board that the service charge was for rental of the containers which constituted a sale under G. L. c. 64H, § 1 (12) (a), and was therefore taxable under c. 64H, § 2. [326-330]

Service charges made to customers of a rubbish removal business for the supplying of special containers were not exempt from sales tax as an inconsequential sales element of an essentially personal service transaction under G. L. c. 64H, § 1 (13) (c). [330-331]

Service charges made to customers of a rubbish removal business, which was a common carrier, for the supplying of special containers were not exempt from sales tax as "sales of transportation or communication services" under G. L. c. 64H, § 1 (13) (b). [331]

At issue is an assessment of sales tax under G. L. c. 64H on the rental of certain rubbish containers. The taxpayer's business was rubbish removal. Three methods were used to collect rubbish from customers: (1) the manual emptying into the taxpayer's trucks of conventional barrels and the like; (2) the pick-up of rubbish with hydraulic front-end and rear-end loaders; and (3) the "roll-off" method which gave rise to this controversy.

Roll-off customers were provided by the taxpayer with special containers for the deposit of their trash. These weighed 4,000 pounds empty, were five feet high, eight feet wide, and twenty-two feet long, and held twenty-five cubic yards of matter. Trucks appropriately equipped would come to carry away full containers and replace them with empties. Sometimes a container would be emptied and then returned to the same customer, but the containers did not have any individually identifying characteristics.

Customers using the roll-off method received monthly invoices listing two charges. One charge, termed "slips," was a variable figure representing the sum of charges for the month's pick-ups and disposals. The other monthly charge was deemed a "service" charge by the taxpayer (and was specified as "container service charge" on an invoice to be found among the exhibits). The latter charge was held by the State Tax Commission to be one for rental of the roll-off containers on which the taxpayer should have collected and remitted sales tax under the following provisions of law: G. L. c. 64H, § 2, imposing an excise "upon sales at retail of tangible personal property"; and § 1 (12) (a) defining "sale" to include "ny transfer of title or possession, or both, exchange, barter, lease, rental, conditional or otherwise, of tangible personal property for a consideration, in any manner or by any means whatsoever."

The taxing authorities' view of the question was first stated in 1967 in response to a request by the Massachusetts Rubbish Haulers Association for a ruling. The then Commissioner of Corporations and Taxation assumed the facts of the roll-off method just described, and responded that a separate charge "for the use of the container . . . is taxable under the sales and use tax law and the haulers are required to collect the tax thereon. If, however, there is only one charge for the container, transportation and dumping with no separation thereof, the charge would not be subject to tax. The container charge incorporated therein would be exempt under [G. L. c. 64H, § 1 (13)] as an inconsequential element [of an essentially personal service transaction] for which no separate charge is made." The precise statutory text referred to was that part of § 1 (13) which states that "ale at retail" shall not include "(c) . . . personal service transactions which involve . . . sales as inconsequential elements for which no separate charges are made."

Accordingly, when the present taxpayer elected not to make a single comprehensive charge and failed from April, 1966, through September, 1973, to collect and pay over sales taxes on the separate so called "service" charge to its customers, the State Tax Commission (commission) sent notice of intention to assess $16,227.36 of taxes, interest, and penalties. The taxpayer paid the assessment and duly filed applications for abatement. Abatement was denied by the commission on November 8, 1974, and, on appeal, by the Appellate Tax Board (board) in October, 1976. The case, including the board's findings, report, and opinion of August 1, 1977, comes to this court by direct appeal under G. L. c. 58A, § 13. Here the taxpayer renews three arguments against imposition of the tax.

1. The board found that the "service" charge was a separately stated charge for the rental of containers put into the customers' possession, and thus was subject to the tax. According to the taxpayer, there was no rental within the statute; it argues that the customer was interested only in enjoying a rubbish removal service, and the tangible property was supplied to him solely for the convenience of the service provider. *fn2 But even if that description of the customer's attitude is accurate, there was nothing to obviate the incidence of the tax where a discrete charge was made for the tangible personal property. We then have a sale conforming to the terms of § 1 (12) (a) quoted above.

The three cases on which the taxpayer relies, cited in the margin, *fn3 only point up that problems of characterization under a sales tax on tangible goods can arise only where a single charge is made integrating taxable (tangible goods) and nontaxable (service) elements. Where the seller has decided to charge separately for taxable goods, no considerations of fairness or administrative simplicity exist to relieve him of the consequences of his choice. Compare Houghton Mifflin Co. v. State Tax Comm'n, 373 Mass. 772, ...


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