*1 452 challenges
where the state the trial court’s Because the imposed concurrent sentences imposition of concurrent for multi- the trial court in sentences this case understate criminality Warren’s ple degree comport and do not convictions of first murder involv- imposed with sentences victim, on other ing more than offenders one we will consider offenses, for similar we conclude that whether the sentences are commensurate Therefore, trial court abused its discretion. culpability with the defendant’s and not an we remand to resentencing the trial court for understatement of the defendant’s criminali- opinion. consistent with this ty guided we will continue to be imposed sentences on other offenders. Affirmed and resentencing. remanded for Applying principles the above to the facts
of this we conclude that the trial court sentencing here abused its discretion. Warren, the trial court stated on the record
that history, Warren did not have a criminal young,
that he was and “that there was a * * * degree provocation not sufficient to justify did, degree what he but there awas BENDA, Respondent, Victor C. provocation.” evidently The trial court con- sidered these mitigating facts to be factors. not, record, trial court did at least on the capacity James GIRARD his any aggravating consider factors. Revenue, Commissioner of et aggravating severe factors did exist. There al., petitioners, Appellants.
were three victims who were shot at close No. C2-98-763. range under suggesting circumstances they had no to chance defend themselves. Supreme Court of Minnesota. Two of immediately the victims did not die 1999. being after shot the first time and were shot a second begging of them after time —one for
his life. All of this occurred after Warren
drove at 24 least miles obtain the murder weapon and made clear to his friends that he
planned facts, to shoot the victims. These against
when mitigating balanced factors court, considered the trial lead us to conclude that the imposition trial court’s
concurrent sentences was not commensurate with culpability Warren’s and understates his
criminality. Further, our review of sen- imposed tences on other offenders with mul- tiple degree convictions first murder volving victim, more than one leads us to
conclude that Warren’s concurrent sentences clearly
are
out of line with
imposed
sentences
on other offenders.41
See,
Ouk,
e.g.,
State v.
516 N.W.2d
sentenced to three consecutive life sentences and
(Minn.1994) (15-year-old sentenced to two life
killing
one
family
concurrent sentence for
four
sentences and two 180-month sentences
be
ax);
Olson,
members with an
State v.
consecutively
served
shooting
two clerks and
(Minn. 1980) (three
N.W.2d
consecutive
Miller,
during
robbery);
two customers
death);
burning
people
life sentences for
three
(three
N.W.2d at 239
consecutive life sentences
(two
Bangert,
Mike General, Owen, Esq., Attorney M. Assistant Paul, appellants. for St. Hutchinson, Ltd.,
Eastlund, & Solstad Hutchinson, Esq., F. Daniel J. Thomas Minneapolis, respondent. MeGarry, Esq.,
OPINION
GILBERT, J. legal precise involves the issue of This case performs a non-resident who mana- whether gerial for his em- and administrative services days ployer in for several out of a Minnesota year calendar is salary portion of his attributable tax for that in Minnesota. The to the work appeals held that trial court and court of 2(a)(1) under Minn.Stat. was not respondent Victor Benda C. part income tax for that to Minnesota performing mana- of his earned while employ- gerial services for his and executive in Minnesota. We affirm. er dispute. are not in
The facts of this case 1993, Benda, through years 1991 In calendar Texas, was President and Chief a resident of Analysts International Operating Officer (AIC), corporation. Minnesota Corporation of his for AIC most work Benda also Texas. on employer in Minnesota services for his ques- days year calendar of each several in- nonresident Benda filed Minnesota tion. for the calendar income tax returns dividual through he did not years 1991 compensa- income the assign as Minnesota performing services for he tion received in Minnesota. AIC while provid- engaged in the business AIC is personnel experienced technical for its customers. form software services through AIC had years calendar throughout offices United branch Kingdom, including and the United States duties as Benda’s two offices in Minnesota. Operating Officer Chief President and long-term approval of cluded review and compensa- strategy policy, plans, regional operational performance, phrase require performance tion of services benefits, produced income for AIC. employee control grams. responsible plan- was also facts, parties stipulated as to relevant ning corporate growth employee recogni- summary judg- and filed cross-motions for programs, tion and was member of AIC’s ment. state asserted that Benda *3 acquisition team and board of directors. performed personal had ser- Minnesota, vices within Benda asserted that in on 17 Benda worked AIC Minnesota employment his performed activities in 1991, 1992, days days days in 36 in and 27 in personal Minnesota were not Minnesota, in Benda 1993. While services under the of Minn.Stat. following the activities on behalf 2(a)(1). 290.17, § subd. The trial court en- review, strategic planning, of AIC: summary judgment Benda, tered in favor of performance, monitoring regional operational 8002.0200, relying part in subp. on Minn. R. attending meetings, of directors’ board regulation by 1C the enacted the De- attending corporate social functions and partment interpreting in to assist Minn.Stat. Minnesota, award ceremonies. in 2(a)(1). 290.17, § subd. engage in delivering Benda did not services Relying on the limitations contained in the AIC, by marketed and never rule, the trial court stated that the state’s directly vices for customers or clients of AIC. 290.17, interpretation of Minn.Stat. subd. 12,1995, Department On June the of Reve- 2(a)(1) “overly was broad” and would “in (Department) nue notified Benda that the subject any effect to person taxation salaried Department assessing was him an additional in who is Minnesota on business.” The trial $10,567.49 years through for the 1991 1993. court determined that Benda did not fall amount, $9,394.78 this Of was income tax scope anticipated by within the the rule. $1,172.71 liability and was interest. The as- The trial court people reasoned that “the sessment was on the based fact that Benda engaged occupations in the in enumerated had “received income for generate the Rule income for themselves or fessional in employer directly services Minnesota.” their performance from the Department The relied on specific merely services and not from their 290.17, Department employee.” subd. The cal- status as a salaried trial percent culated court assign- plain meaning the of Benda’s concluded that under the Rule, by dividing to of the employees able Minnesota the “nonresident number of salaried days directly Benda who are not involved in performing worked Minnesota the total income days number of services are not during year. he worked the taxes,” and thus entered 26, 1995, On June Benda filed an adminis- summary judgment in favor of Benda.2 appeal years. trative for each of the three affirmed, appeals relying The court of on 28, 1995, On November the Commissioner 8002.0200, 1C, subp. Rule as well as on this issued a Notice of Appeal, Determination on previous court’s interpreting similarly cases stating proper amount owed Benda as provisions worded of Minn.Stat. 290.17. $10,871.97.1 Girard, 422, Benda 585 N.W.2d 424-25 paid protest this amount under on (Minn.App.1998). These earlier cases indi- 24, 20, January 1996, 1996. On cate that in order for a nonresident complaint Ramsey County filed District to be to Minnesota income tax for seeking Court a refund of tax and interest consisting principally income from a business paid. complaint, In his Benda asserted that performance profession- engaged “personal he was not profes- services, al himself must have scope sional services” engaged within the of Minn. in the of those ser- 2(a)(1), interpreting Stat. (citing that See id. at 424 vices. Schonwetter v. 1. The increase in amount owed was due to addi- 2. The trial court also determined that the formu- imposed. determining la used tional interest proper. amount owed was Revenue, ambiguous, tax statutes must be strict 316 N.W.2d When Commissioner of (Minn.1982)). appeals taxing authority ly against The court of construed 275-76 stating taxpayer. Dahlberg that interpreted these cases in favor of the See professional services Hearing Systems, Inc. v. definition of (Minn.1996). provide services agency’s is limited to “businesses “[A]n N.W.2d of an performed for the benefit typically interpretation of the statutes it administers * * individual, client.” Id. Accord- identifiable *.” A. is entitled deference Geo. Hor appeals (Minn. concluded that ingly, court of Asper, mel & Co. v. 428 N.W.2d any provide 1988). Benda did not because any of AIC’s clients while The statute at issue in this engaged he had not 2(a)(1),3 reads: at 425. The professional services. *4 personal profes or or [I]ncome from labor “[m]anagerial ser- appeals held that court of if, assigned sional services is to this state employee’s performed own cor-
vices
that,
or
and to the extent
the labor
ser
performed
for the
porate employer and
it;
performed
vices are
within
all other
client are not includ-
benefit of an identifiable
income from such sources is treated as
personal services” as
“professional
or
ed”
this
income from sources without
state.
290.17,
§
in Minn.Stat.
phrase
is used
2(a)(1).
Therefore,
Id.
the court af-
subd.
8002.0200,
The
enacted Minn. R.
summary
entry
trial court’s
of
firmed the
1C,
subp.
provide guidance
order to
judgment.
290.17,
§
interpreting
subd.
Minn.Stat.
2(a)(1).
provides:
for review
petitioned
The
this court
state
“managerial services
on the issue of whether
by
following types
The
of income received
by
a nonresident
Minnesota
a nonresident
in Minnesota are to be in-
employer
corporate
for his
salaried
officer
gross
cluded in that individual’s Minnesota
statutory concept
in the
of
included
[are]
assignable
and are
to Minnesota:
income
”
professional services’
as used
‘personal or
(1)
salaries,
fees, commissions,
tips,
Wages,
2(a)(1).
subd.
Minn.Stat.
bonuses,
earnings
personal
or similar
professional service
within
or
engaged in
ex-
Two conditions must be met
Minnesota.
ecutive functions for AIC such as
taxpayer’s
income can be deemed
before
review,
monitoring re-
strategic planning,
personal
professional
income.
or
service
attending
gional operations performance,
First,
activity
itself
the income
attending
meetings, and
board of directors’
personal
the rendition of
or
must be
corporate social functions and award ceremo-
services; and, second,
taxpay-
fessional
dif-
nies. Benda asserts that these functions
services; it
personally render such
er must
personal
professional
services
fer from
enough
employ others to render
is not
by
from taxation Minn.Stat.
and are excluded
following
examples of
The
are some
them.
1C,
8200.0200, subp.
and Minn. R.
290.17
may
deriving income or
taxpayers who
be
Reve-
promulgated
the Commissioner of
personal
of
earnings from the
nue.
plumb-
professional
carpenter,
services:
“Questions
statutory
of
construc
barber,
er, bricklayer, repairworker,
beau-
fully re
questions
tion are
of law and are
doctor,
tician, accountant, attorney,
den-
* * *
appellate
viewable
an
court.
tist, architect, engineer,
an insurance
application
stipulated facts is also a
of law to
agent.
law,
fully
question
reviewable
of
and thus
1C(1).
8002.0200,subp.
Minn. R.
Metropolitan Sports Facilities
this court.”
of this court
also cites several cases
County Hennepin, 561 N.W.2d
Comm’n v.
of
omitted).
(Minn.1997) (citations
513,
support for his assertion that
as additional
specific
Minn.Stat.
threshold limitations. See
A
of
who has income
nonresident Minnesota
(1998).
289A.08,
1(a)
The threshold
assignable
only
need
file a return
to Minnesota
assign-
$5900
and
only pay
$5500 in
taxes on the
amount was
and need
Minnesota
taxpayer’s
$6050 in 1993. See id.
if the
income exceeds
able income
operation
his functions were
or executive
and
of
shop-
an Atizona hotel and
personal
professional
ping
rather than
center.
Id. at 262. We stated that
within
“two conditions must be satisfied before a
taxpayer’s
Bolier
personal-
income can be deemed
Minn.
[t]he
render such services.” Id. at 263. We then
taxpayers
compensation
from
mestic
applied
requirements
these
to the
sendees,
[sic]
labor or
or From
and held that he was not entitled to deduct
consisting principally
business
ownership
opera-
losses incurred in the
and
formance of
shopping
tion of the Arizona
vices,
state,
hotel and
cen-
assigned
shall be
to this
ter.
ownership
Id. We reasoned first that
taxpayers
the income of nonresident
shopping
center and
assigned
such sources shall be
to this state
“primarily
furnishing
hotel were
if,
of build-
that,
the extent
the labor or
service,”
space,
not of
and thus
services are
within it.
satisfy
prong
did not
the first
75-76,
(quot
4.57 corporate employer line of cases involved tax- formed for his is not The Schonwetter income, assignable not of an individu- subject ation of business and is not to- Thus, salary. acknowledge, did al’s we as tax. appeals, court that this ease is distin-
the Affirmed. guishable from that line. De- partment suggesting no law that a cites case PAGE, (dissenting). Justice differing interpretation applied should be respectfully I dissent. The court holds wage the case of income earned that a nonresident is not to Minneso- managing corporation. Additional- performs ta income tax if the individual man- ly, Department expressly adopted agerial or administrative services because language limited from Ness and Schonwetter “personal profes- those are not interpreting “personal sional services” within the of Minn. vices” its enactment of Minn. R. 2(a)(1) (1998). Yet, Stat. at subp.lC. time, hourly wage same nonresident Schonwetter, taxpayers Like the earners are to Minnesota’s income engaged solely managerial was and execu- they tax if meet certain income thresholds.1 tive activities for AIC while Minnesota. I find it difficult to legisla- believe that the His activities were not “income exempt ture intended non-resident mana- AIC, rule, activity” required by but gerial employees and administrative from our were instead executive and ac- subjecting hourly income tax while workers tivities for AIC. to the tax. This result unfair. is following examples lists “carpenter, services: barber, bricMayer, plumber, repairworker,
beautician, accountant, doctor, attorney, den-
tist, architect, engineer, an insurance
agent.” The activities these all individuals personally providing involve vice or assistance to individual examples Depart- clients. The listed Minnesota, Respondent, STATE of employment ment its rule do not include positions generally associated with the mana-
gerial and executive services involved in run- DAVIS, Jr., Kenneth Lamont ning corporation. petitioner, Appellant. rule, agency’s in- which evidences the No. C0-98-1572. statute, terpretation prior follows our precedent and is entitled to deference. See Supreme Court of Minnesota. Co., A. at Geo. Hormel & 428 N.W.2d 50. upheld, finding “should be absent express purposes that it is in conflict with the legisla-
of the Act and intention of asserts, party nor ture.” Neither do we find, any such between the rule and conflict give
the statute. We therefore the rule the deference to which it is entitled. engage providing did services as used in Thus, we portion hold that of his derived and executive activities 289A.08, 1(a) (1998). 1. See Minn.Stat.