*1 established, quorum the Board. Once a

only simple majority a Board members

present voting required pass Spiers’s vote, counting

motion. Not there

were three votes in affirmative favor

findings of fact made the Board. See Planning Zoning

Murach v. Comm’n of London,

New 196 Conn. (1985) (when majority vote exists with- disqualified member,

out vote vote dis- result).

qualified member does not invalidate contemplates ordinance mem- Board presence

ber’s for the of establish- quorum though eventually even voting

member motions made Therefore,

during meeting. although voted,

Spiers prop- should not have she was

erly purposes establishing counted for

quorum and the not deprive Board did Fitan- process

ides of due of law. Hur- See In re

ley, 418 Mass. 639 N.E.2d n. 708-09 (majority of board members needed quorum only majority but of board mem- present

bers and voting needed to take offi- action).

cial board entry is:

Judgment affirmed. concurring.

All

COMMUNITY

TELECOMMUNICATIONS

CORPORATION TAX

STATE ASSESSOR.

Supreme Judicial Court Maine.

Argued May 1996.

Decided Nov.

425 liability for use tax verifying of its sale and through 1989 period from October As- During this audit the 1992. October labor, repair, of sessor treated CTC’s customers contracts its maintenance and to 36 pursuant of a taxable service as the sale provides § 1752. That M.R.S.A. (orally), Hugnagel & Hufnagel F. William pertinent part: Lake, Winthrop, for Plaintiff. “Taxable Taxable service. 17-A General, Ketterer, Attorney Stan- Andrew vice” means: Attorney ley (orally), W. Piecuch Assistant service; Telephone telegraph or C. General, Augusta, for the State. telegraph Telephone or service. 18-A. ROBERTS, WATHEN, C.J., and all Before service” means “Telephone or GLASSMAN, CLIFFORD, RUDMAN, service, or telecommunications LIPEZ, DANA, and JJ. or use of telecommu- including installation telegraphic equipment nication or LIPEZ, Justice. telegraphic and “Telecommunications any 2-way interactive equipment” means (Assessor) Tax State Assessor device, system or process communications summary judgment from entered appeals electromag- receiving transmitting or for (Kennebec Superior County, Court exchanging capable of signals netic and Alexander, J.) Community Tele favor audio, or information. data base textual (CTC) vacating Corporation communications added). audit, (emphasis As a result taxes, penalties, the Assessor’s assessment against an assessment the Assessor issued against appeal the and interest CTC. On tax, interest, and CTC for additional sales argues that the erred rul Assessor court $55,010.53. penalties in the amount of separately charged that CTC’s sale labor, contracts are and maintenance reconsid- request Assessor subject pursuant to sales taxation Thereafter, er his was denied. assessment (1990 Supp.1995). M.R.SA. We petition for of the Asses- filed a review CTC agree, judgment. and vacate the court’s pursuant decision on reconsideration sor’s (Supp.1995) and M.R.Civ.P. Background mo- parties subsequently filed Both 80C. summary judgment. tions for a corporation engaged is a Maine CTC 14(B)(4)1 of section Relying paragraph sale and installation from the definition systems which excludes and the sale of related services for price”2 amounts received cluding repair, and maintenance con- “sale such property sold when repairing In March of the Assessor exam- used tracts. con- separately charged, the court amount is ined business records for the 1752(14) (1990) price" does not include: B. "Sale states Title pertinent part: (4) price for labor or services received (14) price” price. means the total Sale "Sale installing applying repairing or or used in money, of a retail sale valued in amount fabricated, separately property sold money received in or otherwise. whether stated; charged or price” A. "Sale includes: sale; (1) part are of a Services which (Supp.1995) to M.R.S.A. 1811 2. Pursuant and tangible property price” or service "sale cash, receipts, All credits which the sales tax the “value” on any for any amount kind nature pertinent 1811 states Section assessed. by is allowed the seller which credit part: any on ac- purchaser, without deduction sold, tangible imposed all on the value of A tax is count of the cost of used, at personal property taxable services sold labor or service of the materials cost cost, Value is measured paid, any ex- retail in this State.... interest losses except provided. price, as otherwise the sale penses. separate eluded that CTC’s la- means all tele- telecommunications or exempt bor maintenance from graph including were installation or use Accordingly, state sales tax. telegraphic the court equip- telecommunication or granted summary judgment in favor of ment. ..

CTC and appeals. the Assessor added). (emphasis “All” means “total *3 entirety or extent of’ the that it modi noun

Discussion fies. WEBSTER’S New INTERNATIONALDICTIO (1961). NARY 66 When used in statutes the reviewing grant the of a motion wide-ranging term “all” is a word that “does summary a judgment, for we examine the of exception, admit or addition exclu light evidence in a most favorable to the Freightways Corp. Consolidated v. sion.” nonprevailing party to determine whether Nicholas, 115, 137 900, 258 904 Iowa N.W.2d the trial court committed an error of law. Valley See also Hewett v. Kennebec (1965). Air, Enerquin Inc. v. State Tax Health, Mental (Me.1989) 622, 557 A.2d 624 (Me.1996). 926, 670 A.2d 928 meaning (“All all,” “all-encompassing.”). means and is statutory language pres and construction of Moreover, commonly the term is “service” question ents a Paper law. International “installation, defined mean the mainte 998, v. Jay, Co. Town 665 A.2d 1002 repairs by guaranteed nance or done or a (Me.1995). dealer aor manufacturer.” New WebsteR’s (1961). INTERNATIONALDICTIONARY2288 Giv power The State’s strictly to tax is definitions, en phrase these the “all telecom taxpayer. construed in favor of the Carlton only munications ... service” includes Newman, 408, 417, 1 (1885). v. 77 Me. A. 194 the sale of access to a or telecommunication interpretation levying of statutes taxes telegraph service but also the by provisions implica should extend their CTC. by maintenance contracts sold beyond tion import language clear of the supportive nothing We find Hinds, posi- CTC’s used. Portland Terminal Co. v. 141 68, (1944) tion in 5, price. section 1752’s definition of sale Me. 39 A.2d (quoting 7 Com 1752(14) Hutzler, 138, Title 36 states monwealth v. 124 97 Va. S.E. “ (1919)). price’ 775, that ‘[s]ale means the total amount of interpretation 776 As with the statute, any money,” retail sale valued in which includes plain we look first part sale,” which meaning statutory “services are of a retail but of the language give price not “the legislative received labor or services effect intent. In reviewing used in plain installing applying or language, repairing or only we consider not fabricated, separately sold or issue, provision individual at but also “the charged terms, By statutory provi- stated.” its this whole scheme which the section sion excludes from the tax a part at issue sales service forms so a harmonious result, “part rendered as a of a presumably retail sale” if the legisla intent of the ture, charges for “separately the service are be achieved.” v. Lucas E.A Buschmann, Inc., charged or (Me. stated.” CTC’s 1193, sale service 1195 1995) part not “a of a retail sale.” (quoting Parker v. Bath Iron Works 1037, 1039(Me.1994)). CTC’s business is sale of telecommunica- Corp., 644 A.2d equipment

tions main- and related The Maine Sales and Use Tax Law part tenance services. As business value, generally customers, a sales tax CTC sells service contracts to its by price, tangible per measured of all thereby promising provide maintenance sonal and taxable services sold at purchaser. services cir- Unlike the this state that are not contemplated otherwise cumstances (1990 exempted. 1752(14)(B)(4), §§ sale of rather Supp.1995). sale,” & service” is than “part separate “Taxable defined of a retail is a “[tjelephone to include service.” distinct retail sale of a labor and 1752(17-A)(C) (1990). Hence, “Tele maintenance contract. service,” 1752(14)(B)(4)’s phone turn, taxability limitation on Revenue, v. “part Co. Collector of a retail sale” Claiborne Sales are (1957)). See inapplicable to sale of these contracts. 233 La. 99 So.2d Tax UAH-Hydro v. State As- also Kennebec position support find no for CTC’s We also (Me.1995) sessor, (plain use usage the sales and meaning controls over assessor’s of statute “service” and “services” of both the terms interpretation of inconsistent administrative “[tjaxable Al- service.” definition of statute); Corp. Paper Pulp Hudson argued statute’s though could be Johnson, A.2d Me. “telephone use term service” rather of the (1952) (“Although the is authorized assessor “telephone than services” to describe rules and promulgate ... and enforce activity legislative taxable demonstrates by regulation regulations, the assessor only provision public tent to tax which is non-taxable can neither make that auxiliary utility not the activities related *4 taxable, he that the Act nor can render under production to and the util- the distribution of non-taxable.”). under the Act which is taxable ity, statutory of general rules construction The makes sale of telecommu- preclude con- codified in our statutes such a English repair, in form of labor usage in the lan- nication services the clusion. “Common scrupulously agreements guage not a differ- does observe and maintenance singular plural previous ence between and word fact that Maine’s sales tax. The especially speak- forms. This is true when may transac- not have taxed these assessors abstract, ing prescrib- legislation as in taxability the of the not affect the tions does ing general application.” rule for future contracts at issue here. (5th § 47.34 SUTHERLAND STAT CONST entry is: Ed.1992). fact, recognition In of our this entry Judgment Remanded for vacated. general interpretative pro- statutes contain summary judgment in favor of the State of mandating such a con- vision that “unless Tax Assessor. plain struction is with the mean- inconsistent ... of the [w]ords of the enactment WATHEN, C.J., GLASSMAN, and may singular plural; number include the and JJ., CLIFFORD, RUDMAN, plural may of words number include concurring. 71(9) (1989). singular.” M.R.S.A. Given construction, DANA, Justice, ROBERTS, rule of we cannot ascribe with whom significance legislature’s joins, determinative dissenting. Justice alternating use of “service” and services” § 1811 a tax 36 M.R.S.A. 1752(17-A). within section sold at of all ... taxable services “value Included this State.” within Finally, that fact the Assessor “[telephone “taxable services” is definition of inconsistently may infrequently have service.” past taxed these transactions does 1752(17-A)(C) (1990). “Telephone or tele- change our conclusion. As we stated some as, defined inter ago: graph service” is further time alia, “all telecommunications charged public The mere failure of officers service, including installation or use tele- duty public statutory enforce with telegraphic equipment.” communication or provisions respect constitutional 1752(18-A) (Supp.1995). levy ... and collection taxes should way permitted position of the that to stand takes the Assessor law, of the or be correct administration and maintenance diligent estop they more and effi- construed fall within the are taxable because they public attempt when cient officers meaning “all telecommunications duty by bringing their in to the perform agree that I vice.” Because do subjects of proper revenue taxation “all telecommunications ... service” phrase escape the had been allowed to theretofore Legislature by the to include was intended payment taxes. provision of anything actual more than the telecommunications) (and telephone v. A.H. Benoit & State Tax Co. 1, 6, (quoting respectfully I dissent. 160 Me. A.2d It statutory (following “expressio is a fundamental rule of con the maxim unius est struction that statutes imposing expression taxes are exclusio alterius” —the of one strongly against construed most govern thing is the exclusion another —which ment by implication Maine”). not be extended recognized maxim “well This beyond import language the clear statutory principle especial- construction Capitol used. City Bank & Trust Co. v. here, ly applicable given Legislature Waterville, (Me.1975); 343 A.2d see generally separately charged repair excludes Johnson, Camp v. Walden 156 Me. from the sales and use tax in 36 (1960); Blaney see also 1752(14)(B)(4). Because (Me. of Shapleigh, Town exclusion, general Legislature had 1983) (recognizing principle that when servicing to tax tended of tele- susceptible statute is of more than one inter equipment, certainly communications it pretation interpret light courts will statute in specifically provided would have for an ex- citizen). most favorable to rule, ception general either 1752(14)(B)(4) 1752(18-A), just or in section (2d AMERICANHERITAGEDICTIONARY Col- 1752(18-A) 1985) as did for the instal- lege Edition defines “telecommunica- lation of equipment. tion” as “communication electronic trans- of impulses.” missions The meaning of general view of exclusion of *5 “telecommunication service” has been de- 1752(14)(B)(4), labor section we cannot fined in the statute to include both the instal- rely “including” on implying the word as lation and the use of telecommunication things listed, repair other such as equipment. It has not been defined to Moreover, descrip- should be taxed. if the transportation, clude storage, painting, 1752(18-A) tion of taxable items repairing, servicing, dismantling of that exclusive, was not intended neither a equipment. appears The Court to rule oth- taxpayer, court, anyone nor erwise. subject else could know is what else tax. Furthermore, “repair and Legislature maintenance” The would never have intended possibly cannot be an “installation use” uncertainty in system such taxation. equipment. Repair and The list of taxable services 36 M.R.S.A. maintenance is neither “installation” nor 1752(17-A) demonstrates that when the commonly “use” as understood.1 Legislature particular intends to tax a vice, specifici- it knows how define it with addition, In Legislature the fact that the ty. expressly listed “installation” as and “use” subject strongly implies to tax that other I affirm judgment Superi- would things mentioned, repair such as or Court. maintenance, were intended to be excluded from the tax. Violette Leo Violette Cf. Sons, Inc., (Me.1991); Massie, (Me.1982)

Lee v. addition, 1752(18-B)). (enacting is "use” as defined That First, the Maine sales and use tax law. legislation, Equita- entitled "An Act to Permit statutory definition of the term "use” confined Equipment” ble Taxation of Leased was accom- situations where user owns the he panied by a Statement of Fact stated which 1752(21) (1990). using. or she is provide the bill was for "the That is not the situation in this case. payments.” sales on elimination tax lease Second, possibly the term "use” cannot en- H-283, Comm.Amend. A to L.D. No. State- compass repair and maintenance. If that were (117th Legis.1995) (emphasis ment of Fact add- case, there would be a use on ed). The no Statement Fact mentioned personal tangible maintenance of all since Thus, removing effects "use." these word Maine use tax the “use” of all legislative crystal documents make clear that State, tangible personal property the sale previously the word "use” found in section of which would be sales tax. clearly 1752(18-A) pur- was statute for the sole (1990). M.R.S.A. 1861 That not the taxing pose of leases of telecommunications case. Third, equipment. Legislature repealed in 1995 1752(18-A). P.L.1995, word “use” ch.