*1 606 attorney’s deny
herein. We an fee award of discretion shall not be dis- unto Linard turbed is Hershey clearly and award the sum of unless there no basis in plus support costs as determined reason or evidence to $750 her taxable that find- ing.” Donahue, the Clerk of this Court. Matter Estate 464 393, (S.D.1990). Furthermore, N.W.2d 395 part, Affirmed in reversed and remanded “ this court is ‘not determine whether part. in judges of this court would have made original ruling, an like but rather whether WUEST, AMUNDSON, SABERS mind, judicial we think a in view of the law JJ., concur. particular circumstances MILLER, C.J., part in concurs case, reasonably could have reached such ” part. dissents in (quoting conclusion.’ Id. Davis v. Kress- 637, 641-42, ly, 5, 78 107 S.D. N.W.2d MILLER, (concurring Justice Chief (1961)). part). dissenting The trial court found that it could not I would the trial court hold that did not reasonably ascertain amount of child in denying request abuse its discretion support Hershey due from and the amount prejudgment interest. fact, already paid. which he had The trial two court entered sets of find- go through trial court had to a detailed and 29, ings May on The 1991. first set was in process calculated in order to determine the 12,1990, response paterni- to the December amount of arrearages. Finally, appel- ty findings, action. In these the trial court lant, Linard, had the burden to show the Hershey concluded that owed Linard an and, trial court’s of discretion abuse since $2,794.10 past support. amount of child she provided has not this court with the findings The trial court entered also transcripts hearings of the where the day in response to Linard’s motion for a arrearages determined, amount of was I prejudgment new trial and for interest on must sup- believe that reason and evidence arrearages. It concluded Linard was ported the trial court's decision. interest, prejudgment not entitled to since the arrearages reasonably could not be as-
certained. majority opinion states: “Trial court prejudgment
denied request inter [for holding
est based on SDCL 21-1-11] applicable is the ... stat * agree ute.” I that SDCL 21-1-13 is the In the Matter of the STATE AND MU- appropriate provides: statute. It “In an AND NICIPAL USE TAX LIA- SALES obligation action for of an the breach not BILITY LEE OF K.O. COMPANY 200 contract, arising in every from case of Aberdeen, Harrison, South Da- South fraud, malice, oppression, may interest 57401, kota No. License 06-0059805S. given, jury.” be in the of the discretion 17675, Nos. 17682. prejudgment interest “[A]n Supreme Court South Dakota. based on SDCL 21-1-13 within the dis- [is] cretion of as trier the trial court of fact.” 18, Argued 1992. March Elverson, Winterton v. Aug. Decided (S.D.1986); Inc., Honeywell, Shaffer (S.D.1976).
This court has often stated that “a trial findings subsequent of fact and the * controlling. important point It is also out that this 21-1-13.1 are See SDCL 21-1-13.2 action 9, 1990, originally May (provisions apply suit commenced thus of SDCL 21-1-13.1 1, 1990). July provisions of SDCL 21-1-13 and not SDCL commenced after *2 Barnett, Gen., Harvey M. Atty.
Mark Pierre, Crow, Gen., Special Atty. Asst. Dept, Revenue Dakota appellants South Secretary of Revenue. Richardson, B. Kornmann Charles Aberdeen, Groseclose, Wyly, Kornmann & appellee K.O. Lee Co. AMUNDSON, Justice. (Department) Department of Revenue order, re- appeals from trial court Secretary versed in the decision of the ISSUES (Secretary) to assess addi- ruling Whether trial court erred in tional sales and use tax on K.O. Lee Com- Depart- that SDCL 10-59-16 bars (K.O. pany Lee). We affirm. *3 collecting ment from use tax three
years from the date on which K.O. FACTS Lee filed of its sales each and use tax returns? K.O. Lee a received notice of intent to November, Department audit from 2. ruling 1989. Whether trial court erred in purpose audit verify repair of the was to that charges and maintenance deductions, gross receipts, exempt and are use tax from sales tax reported Department K.O. Lee to on its to SDCL 10-45-12.3? sales and use tax returns period for the of 3. Whether trial court erred it when
November, 1986,
October,
through
1989.
attorney
refused to tax
fees and
audit,
During
Department
assessed
by
sales tax incurred
K.O. Lee?
sales and use tax on items and transactions
4. Whether trial court erred when it
going back as far as 1975.
tax
refused to
costs of $964.64
appealed
K.O. Lee
Secretary,
audit to
sought by K.O. Lee?
and
hearing
hearing
a
held before a
was
examiner in
1990.
July,
Secretary subse-
ANALYSIS
quently
decision,
(1)
ruling
issued his
that
K.O. Lee did meet the
proof
not
burden of
Standard
Review
of
necessary to claim a sales tax exemption
appeal,
In an administrative
this
repair
for the
provided
to
services
out-of-
court
agen
makes the same review of the
customers,
(2)
state
and
SDCL 10-59-16 did
cy’s
court,
decision as
the trial
did
and we
Department
not
assessing
bar
from
by
presumption
are unaided
that trial
collecting taxes
K.O. Lee’s equipment
on
Appeal
decision was correct.
purchased
prior to November
1986. The
Templeton,
(S.D.1987).
filed an taxation of that Trial court ruled SDCL 10-59- $964.64, imposes three-year the amount of and filed for attor- a statute of limita ney Department fees. Trial prevents court awarded in tions which from col $337.51 Lee, lecting period. taxable costs to K.O. but refused to beyond use tax De Department attorney appeals partment ruling, trial court’s challenges fees. ar guing and K.O. Lee filed a review on the it violates South Dakota creating unequal attorney costs and fees. Further facts will Constitution treatment taxpayers be discussed relevant to the where issues discrimination between with appeal. class, in the same and allows K.O. Lee to 10-59-16(2) purchases provides escape $2.25 use taxation on no bar collec- Depart- equipment million party required worth tion when a fails to file a gleaned ment from the federal tax return return. during
depreciation schedules its audit. As statutory interpretation, is a matter of case, Department, present question freely of law and therefore it is claims that since the million worth of Karras, supra. reviewable. SDCL 10-59- machinery equipment not included provides as follows: filed, reports on K.O. Lee’s tax these required filed do reports not constitute a proceeding or Unless a audit action return. cites to no statute or to determine and collect is commenced *4 shall tax, guide the collection be the decisions which would this court in thereof years the date the barred three defining a “required return.” evi from by reporting the tax is or return dence does reflect that returns were filed filed taxpayer. the There is no appropriate Lee on K.O. the forms and behalf of taxes, to of bar assessment or collection filed, timely in a Once the form is fashion. following or in the in- penalty interest 10-59-16, Department, up under SDCL has stances: years to three to audit such filed returns. (1) period taxpayer which a Any for If, reason, for audit is whatever no con fails or maintain a license or to obtain three-year period, ducted within this the permit engage in required to the activi- clearly Department provide statutes that is obligation; ty in the tax which results precluded collecting any unpaid from taxes (2) taxpayer Any period for which a unless, course, of a fraudulent return has report required to file a return or fails been filed. There is an absolute dearth of a return or re- or statutes, rules, regulations authority, or files fraudulent port; support finding which would a that “re tax, accurate, (3) penalty or Any quired” interpreted interest first is com payable legally due and within three controlling plete, or free of mistake under years mailing the date of of a notice of accurate, If a filed is com law. return not to of intent audit. mistake, plete of the audit will so or free files is taxpayer reflect. If a a return that added.) (Emphasis attempt in an to false or fraudulent evade attempt- Department The tax which was tax, Department of must payment the sales from K.O. Lee a use tax to collect was open go prove the is to same then door machinery million of worth legisla years, the beyond back three which purchased out of state between equipment a ture determined was reasonable audit at K.O. Lee's Aber- 1975 and 1986 use question period. Accordingly, is no there deen, Dakota, gov- is plant. Use tax South returns; required Lee the that K.O. filed ch. 10-46 and is adminis- erned SDCL use rather, the question there is a whether in the same manner as tered enforced falsely, or negligently, tax information tax, 10-46-39. Ac- was pursuant to SDCL sales to the Karras find case be cordingly, fraudulently withheld.
dispositive of this issue.
case,
Depart
neither
present
In the
Karras,
in the absence of
In
we held that
any find
set forth
ment
the trial court
nor
fraud,
cause
Department’s
of
finding
a
of
indicating false or fraudulent
ings of fact
accrued
payment of sales taxes
action for
Lee in an
of K.O.
conduct on
delinquent.
the taxes became
when
liability.
tax
avoid use
attempt
to defeat or
We determined Karras
in
N.W.2d at 681.
finding, we cannot
a
of such
the absence
does indeed
of limitations
that
statute
Karras,
present.
fraud
assume that
collection, and that a
tax
exist for sales
holding
Therefore,
our
supra.
showing
suspends
statute of
fraud
Karras, Department’s
action
Id.
cause
Additionally,
in tax eases.
limitations
(S.D.1989),
collect
meaning
the use tax accrued when the taxes
clarified
delinquent.
accordingly
became
We
affirm
Quali-
holding
“beneficial use.” The
Department
trial
holding
court’s
is
ty Service
is as
Railcar
follows:
collecting
beyond
barred from
use tax
hold that the ‘beneficial use’ of the
[W]e
three-year period
the date
from
repair
service is
location
where
tax
filed each of its use
returns.
repaired
put
car is
railroad
to use to
in
asserted
profit. Therefore,
make a
those railroad
terpretation of
10-59-16 violated the
SDCL
repaired
cars
facility,
at
Sioux Falls
South Dakota Constitution.
Lee ar
put
profit
that are
to use to make a
gues
argument
that since the constitutional
state,
entirely
exempt
out of
are
from
court,
presented
was not
to trial
it is not
tax,
10-45-12.3,
the sales
De-
previously
reviewable. We have
held that
partment’s interpretation the loca-
constitutionality
may
a statute
not
repair
tion of the
dictated whether or not
appeal.
be raised for the first
time on
the services
taxable
is
error.
Sharp
(S.D.
Sharp,
6H
at
provide
point
proceedings prior
ture did not
that
1990 amend
tions
in the
appeal. Thus,
to this
operate retroactively.
ment was to
See
K.O. Lee did not
Freidel,
(S.D. allow trial
Gasper
and,
court to rule on this issue
v.
therefore,
1990).
nothing
presented
is
Quality
Railcar did not
review.
Service
Sickler,
(S.D.
10-45-12.3;
v.
State
pret applicable think it is (4) Taxing Lee’s K.O. Costs therefore, and, to affirm review, K.O. Lee ar On apply case retro court’s decision gues trial have taxed court should costs in spectively. the amount of instead of $337.51. Only statute are authorized recov the Quality Pursuant Service Kovarik, Magbuhat erable. decision, prove K.O. Lee had to Railcar (S.D.1989).2 Lee’s repaired parts and machines are taxation of follows: costs was as profit entirely used make a outside The record South Dakota. reflects that period K.O. Lee’s invoices for audit proceedings For all before repaired parts show that the machines hearing 10.00 $ *6 purchasers were to out-of-state shipped For all proceedings after Further, with destinations. out-of-state hearing 5.00 courts, filing made Clerk of fee finding record shows a 32.50 Deposition transcript (202.51)* fee of fact Lee made no actual use of that K.O. Hearing transcript fee 205.80 Accordingly, equipment. agree
this (1,860 Copying expense with trial court’s conclusion that K.O. Lee copies per copy) at .15 279.00 proof under met SDCL 10- its burden Long telephone ex- distance 45-12.3, Railcar, Quality Roy Service and pense 14.03 af al Trial court’s decision is Plastics. attending upon For and tak- ing the deposition of a wit- firmed. (SDCL 15-17-2(3)) (5 ness each) witnesses at 10.00 $2.00 (3) Attorney Fees and Sales Tax Statutory fee for de- witness (5 positions at witnesses has discretion Trial court to award (10 ($100.00)) plus $20.00 specified “costs and manner in the amount ($2.60)) at 102.60 miles .26 By in chapter 15-17.” SDCL 1-26-36. Statutory fee for witness (1 hearing mileage review, argues Lee K.O. $20.00) plus witness at discretion when failed to court abused its (320 ($83.20)) Miles at .26 103.20 in attorney award fees and sales tax defending Lee in claim. by curred K.O. $964.64 TOTAL argues it is While Lee entitled to 15-6-ll(d), to SDCL sanctions of costs in the Trial allowed taxation following file motions for sanc- amount: counsel did not fees, fees, printers’ copying provides fees for as follows: reasonable filing process, service fees neces- party In is allowed recover all cases when costs, procur- taking sary expense depositions and as a shall also tax of the the clerk judgment party’s ing necessary of such witness- the allowance evidence. translators’, officers’, es’, interpreters’, Proceedings hearing before $ 10.00 MILLER, C.J., WUEST, J., concur. Proceedings hearing after 5.00 Filing fee 32.50 SABERS, JJ., HENDERSON and concur Statutory witness fee 20.00 in part part. and dissent in Mileage for that witness (320 mi. at .21 67.50 HENDERSON, (concurring Justice (1,860 Copying costs at .15 part; dissenting part). (202.51)* per copy) I concur in entirety opinion of this but dissent to the dissertation on costs TOTAL $337.51 (Issue 4). * highlighted apparent amounts reflect an award, clerical error in trial court’s as the you If multiply pages per 15$ at $202.51, Deposition transcript amount of fee is you copy, arrive at Trial court $279.00. copying $279.00.3 costs are mistakenly put down The latter $202.51. actually The costs awarded trial court fee”; amount was “Hearing transcript appropriate of the evidence to there is no doubt that the trial court decid- support such an award. Trial court al- transcript ed that the fee be awarded. $202.51, mistakenly copy- lowed labeled my opinion, the trial court intended to costs, and we affirm trial court’s total costs, also, copying because it said cost incorporated award which the $202.51 (1860 “Copying so: per copy)”; at .15 However, amount. this amount should be (the unfortunately, it inserted depo- cost, deposition transcript reflected as a fee) transcript (the sition instead of $279.00 copying not as an award of costs. costs). copying It is one little error on costs and it should be corrected. support submitted evidence to and, review, upon for costs empowered This Court is under SDCL statutory authority we find “reverse, to affirm trial 15-26A-12 and SDCL 15-30-2 to affirm, modify judgment” exception court’s award of costs with the and “di- entry judgment rect the of such or order as copying long-distance costs and tele- required the court deems the record phone Beers, expenses. Kallis v. *7 Hence, would, costs, I regarding ...” the 642, (S.D.1985); Arcon Const. costs, simply affirm exception the with the Plant, Co. v. S.D. Cement telephone taxable, of costs which are not (S.D.1984). Therefore, we find K.O. modify judgment and the of taxation of Lee is entitled to its reasonable costs in the costs to insert in the column as it $279.00 $671.61, amount adjust and K.O. Lee’s clearly appears to me that it was the inten- accordingly. tion the copying court to award of our affirmance of trial court’s “long and delete the in distance tele- judgment entirety in its on Issues 1 and Thus, phone expense.” I would affirm and we decline to address K.O. Lee’s modify judgment accordingly, thereby the obviating necessity returning asking review issue us to determine wheth- case back the trial court. correctly er trial court acted as to issues 1 2, regardless given, of the reasons hereby deeming it moot. SABERS, (concurring in part and Justice dissenting part).
Trial court’s decision is affirmed with adjust directions to K.O. Lee’s costs 1, 2, I concur with issues but accordance with this decision. dissent on Issue actually copying 3. The amount trial court allowed was find $279.00 trial court did not costs to deposition transcript, for the a cost allowed be reasonable. record, appears SDCL 15-17-4. From the “[o]nly correctly majority The states recovera- by statute are
costs authorized then 15-17- majority
ble.” The cites SDCL part: clerk shall provides “[T]he The copying
also reasonable fees.” tax ... they statutory
majority claims could “find trial award of
authority to affirm exception copying
costs with costs_” added).
(emphasis copy- specifically allows fact,
ing taxable costs! In fees as taxable copying fees as allowed copying
costs. The trial court found these 15-17-4
fees to reasonable under SDCL be a show- they should be allowed absent contrary. majority denies to the copying amount of its fees
K.O. Lee the error”
assuming the trial court’s “clerical than reference to item rather
its reference to amount. least, very
At remand should “clerical to correct its own trial court copying fees
error” and to reconsider the transcript costs under deposition statutory authority 15-17-4. Dakota, Plaintiff
STATE of South Appellee, *8 PHILLIPS, Defendant
Darlene Appellant.
No. 17621. of South Dakota.
Supreme Court May Briefs
Considered Aug. 12, 1992.
Decided