*1 indicates, exchange objection BENTON, C.J., PRICE, the defense this case specific: LIMBAUGH, ROBERTSON, went further and was more COVINGTON HOLSTEIN, JJ., McHENRY, ... I moving [Defense Counsel]: am also Judge, Senior concur. grounds
on the that the strikes were done way in a against as to discriminate women White, J., sitting. well, saying I’m not that Batson deals specifically gender with the issue of but saying making objection
I’m that I’m that as well.
THE Very COURT: well. I’m asking
[Prosecutor]: that that be ruled discussion, part out of this gen- about der, nothing since that has to do with Batson. INTERNATIONAL BUSINESS that, THE I’ll COURT: sustain that will CORPORATION, MACHETES point if necessary the defendant Appellant, urge appeal. can Okay. [Defense Counsel]: The Court’s fail- REVENUE, Respondent. ure to DIRECTOR OF allow me make a record with regard discriminating to the State in terms No. 79681. gender my rights violates Ghent’s to due process equal protection, [and] .... Supreme Missouri, Court of En Banc. THE Very COURT: well. Overruled. identified, The defense counsel then Dec. 1997. by gender, name and ten women who had Rehearing Denied Jan. prosecutor been stricken the state. The stipulated identity gender to the of the
venirepersons he had stricken. Defense specific
counsel’s
venireper-
identification of
sons belonging
protected group
to a
were stricken
asserting
the state and
hearing
denial of a
regarding the strikes
Equal
violated the
Protection Clause was
Parker,
sufficient to raise the Batson claim.
Certainly
any specificity gender lack of in the Batson objection. Having asked for relief and ob jected handling to the trial court’s of the
problem, preserved appeal. the issue was Grim,
State v. banc), denied, cert. U.S. S.Ct. (1993).
562,
to determine whether the used peremptory the state’s strikes remove solely gender. members on the basis of Upon completion hearing, of that the record proceeding shall be certified to this
Court. *3 Tucker, Shaw,
Laurence R. Stuart K. Kan- City, Appellant. sas Nixon, (Jay) Atty. Gen., Jeremiah W. Evan Buchheim, Gen., J. Atty. Asst. Jefferson City, for Respondent.
BENTON, Chief Justice. 1990,1991
In International Busi- ness Corporation Machines sold mainframe computers, scanners, document direct stor- devices, age tape printers drives and to DST Inc., Systems, $21,456,387.56. IBM re- mitted sales tax on these items to the Di- rector of but later claimed a refund $1,388,870.38 based on the Supp.1990.1 section RSMo Director and the Hearing Administrative Commission ap- denied the refund. IBM V, peals. Mo. Comt. art. sec. 3. Affirmed.
I. designs operates
DST software in or- process der to information for the mutual fund, insurance, transfer, pharma- securities ceutical, banking and real estate industries (though most of DST’s customers are mutual funds, or companies). mutual fund service Specifically, DST receives financial data satellite, telephone, facsimile, mail and vari- performs ous electronic means. DST trans- information, actions with the which include buying shares, selling of mutual fund funds, purchasing securities from mutual va- funds, luing portfolios for pricing mutual mu- funds, updating records, tual shareholder on daily manipulates a basis. DST thus data to output create forms of such as bal- ance, exception reports, super control and (reports sheets daily activity for each fund), statements, reports ad hoc ac- statements, count confirmation dividend and checks, redemption forms, tax information output and net asset values. The informa- (mostly) tion is transmitted to mutual fund shareholders, companies, public and the me- statutory 1. All references are to RSMo 1990 un- less otherwise noted. Hear- (as Administrative pally It the custom- relied appropriate). reaches
dia in this case. There copy, ing Commission including means hard er various transmission, “product” does optical storage, the term tape stated electronic microfiche/film, outputs as a “service.” defined storage, access stor- include direct However, at as the dissent there personal computers. Id. age, downloading to say—the sales recent cases noted—and the “product” to II. law not limit the term tax does (citing at tangible property. Id. personal refund, IBM to a order for receive Dictionary, Third International Webster’s use of DST’s (1976)). output Because requirements must meet value, tangible it can be either with market which from sales tax: ex- personal property or a service. To the Machinery purchased ... opinion and the tent inconsistent with expand existing and used ... manufac- *4 cases, of term recent GTE’s discussion the turing ... in the if such plants state ma- no 780 “product” longer be followed. should chinery in equipment directly is used and 60—52[3].2 S.W.2d at product manufacturing ... a which is in- ultimately to for final use or tended be sold however, 144.030.2(5), not ex- Section does consumption empt machinery equipment used sales of statute, determining meaning In the of a the directly any product. manufacture The to point plain of starting language is the the “prod- the statute does end with word Egg itself. L R 144.030.2(5) statute & Co. v. Director Rather, uct.” section of Revenue, (Mo. 624, 796 S.W.2d 625 banc equipment sales of used di- 1990). rectly product is to manufacture a “which ultimately sold for final use or intended to be The Director that DST used concedes consumption.” equipment expand the to plant. existing theOn next relevant element statutory has a defi term “sold” The statute—contrary position to of the give nition this must effect. to which Court concurring opinion—it Director Revenue, Jones v. Director 832 S.W.2d of organizing “established that information 516, (Mo. 1992). banc “Sold” is a verb 517 through computer technology is ‘manufactur form of noun “sale.” “Sale” means House, ing.’” Publishing Concord v. Inc. Revenue, 916 transfer, barter, Director S.W.2d 191 any exchange or condi- of 1996). (Mo. remaining banc The otherwise, issue is any in manner or tional or “product whatsoever, whether DST makes a which is any tangible person- of means ultimately to for final intended be sold use property al consideration and valuable consumption.” furnishing rendering, selling or any of sub- valuable consideration “product” The term has been defined stances, desig- things and services herein output in recent as “an cases with market as taxable under nated and defined v. Dairymen, value.” Mid-America Inc. Di of sections 144.010to 144.510 terms Revenue, (Mo. 924 283 rector S.W.2d of 1996); Iron, selling tangible McKinley also Inc. v. “Sale” thus includes both banc see Revenue, personal property rendering ser- Director 707 taxable S.W.2d of (Mo. 1994). in By call use the term banc These recent cases into vices. of “sold” 144.030.2(5), Assembly question the in Automatic section the General discussion GTE Revenue, exemption apply v. to to machin- Electric Director 780 S.W.2d intended that of (Mo. 1989), prinei- ery generate of was 50-52 banc which [144.030.2(5)] explicit re- concurring opinion contains no 2. The asserts that Gener- statute Assembly adopted judicial quirement ‘tangible’ al the “settled con- in order GTE in later reenactments of sec- struction” of exemption apply.” manufacturing for the fact, 144.030.2(5). only nine tion months Bridge Data Co. 204, Director of GTE, any legislative after ment, and before reenact- held, contrary to GTE: "The tangible personal property state, or taxable ser- ment in regardless of whether the vices. products might subject involved become the Missouri sales tax.” As shown in section
III. above, II the issue is whether the ultimate 144.030.2(5) Thus, aim implements is a “sale.” purpose the overall of Section general purpose law, implemented of the sales tax the sales tax law is made section explicit in encourage section 144.021RSMo 1986: sale of machin- ery that have the aim or end purpose and intent of sections 144.010 ultimately generate a sale within the impose to 144.510 is to upon a tax meaning of the sales tax laws. privilege business, of engaging in the state, selling tangible personal IV. property and those services listed in sec- point tion 144.020. The decisive then is whether products DST’s are Selling computer “sold.” in section encour printouts computer output is defined ages development enterprises statute tangible not to be “the person sale produce products that are within scope Wh010.8(ii). property.” Further, al Sec. the sales tax law. Quarry Lake West & selling computer printouts computer out Schaffner, Material Co. v. 451 S.W.2d put is not one of the services listed as taxable (Mo.1970). 111.010(8); in the sales tax laws. .Sec. *5 argues purpose IBM that the of the statute Therefore, exemp RSMo 1986. 111.020 encourage is to development, economic 1-14.030.2(5) tion in section is not available for IBM, whether or not there ais “sale.” how- machinery equipment to used manufac ever, effectively analysis ends its computer printouts, ture computer out 144.030.2(5) “product” at the word ig- put on microfiche or microfilm—which in statute, nores the rest of the which requires products. clude several of DST’s that the be “sold” within the statuto- ry definition outputs of that term. DST’s are also transmitted to storage customers various devices such aS particularly IBM Bridge relies on Data v. optical tape storage. There is no evi Revenue, Director which “It states: is said of dence in the record that DST transfers to manufacturing exemption exists to devices, storage the title to these customers encourage development the economic of the required which is for a “sale.” See Dean (Mo. 1990). 204, state.” 794 S.W.2d 206 banc Machinery, 918 at S.W.2d 246. Nor is there support, Bridge For Heidelberg Data cites to storage evidence that devices are the Central, exaggerates which fact to the object” “true or “true essence” of the trans contrary: Revenue, Sneary action. See v. Director of purpose clearly One of the statute was to (Mo. 342, 1993); 865 345 S.W.2d banc IBM promote manufacturing business in the Corp. Revenue, v. Director 765 S.W.2d of of by exempting State Missouri manufac- (Mo. 613-14, 1989); banc James v. Tres from equipment turers sales taxes on the Inc., Computer Systems, 642 S.W.2d 349 they purchased; done, which pre- this was (Mo. 1982). banc ' sumably, in view of the fact that sales paid outputs taxes would be on all of their finished DST’s are also to transmitted products electronically. when sold. customers A requires “sale” transferring tangible personal property or Inc., Heidelberg Dept. Central v. Director of rendering taxable service. Sec. (Mo.1972) 476 S.W.2d of 114.010.1(7); 111.010(8); sec. sec. 1H.020.1 added). (emphasis RSMo 1986. DST’s electronic transmission Bridge Data also cites State ex rel. Ozark qualify of information not does as a “sale.” Goldberg, Lead v.Co. 610 S.W.2d (Mo.1981), equally impor- which states: “An products None of DST’s are intended object Thus, tant [manufacturing] exemp- ultimately of such to be “sold.” develop- tion is the apply furtherance of industrial in section does not to optical not a sale of the of whether or purchase tive DST’s of has storage at issue here tape devices from IBM. occurred. V. I. outputs argues that IBM DST’s Today this Court manufacturers Data’s, Bridge which “squarely” resemble from sales exemption. justify held to See
were uses machin purchaser if tax statute Data, Bridge at The Bridge 794 S.W.2d 206. This ery equipment to render services. however, opinion, analysis has Data little policy contrary is to the tax interpretation statutory language, analysis no of the firmly legislature is “[i]t formulated phrase “product which is intended critical is the and ex engrained that taxation rule sold_” fact, Bridge is found- Data exception and such emption therefrom premise function on the Court’s ed in the law.” are not favored Missouri claims update the sales tax laws: Comm’n, Scientology v. State Tax Church of manufacturing recognition of the ex- (internal (Mo. 1977) 837, 844 560 S.W.2d represents adoption emption a reasonable omitted). correctly majority ac citation processes of the which were statutes knowledges interpretation its in the role known, they hardly at time known purely tax is “[S]ales the sales tax statute: were enacted. of the power of statute and within matter Data, at To the Bridge 794 S.W.2d subject limits. to constitutional legislature, contrary, purely tax is a matter of sales authority to This Court has no amend power legisla statute and within the of the update tax laws in order to them.” ture, subject City to constitutional limits. omitted). (internal V, supra citations Sec. Carroll, Louis St. however, opinion, principal II of the Section authority This no amend Court has well-recognized principle contravenes update the sales tax laws in order to them. broadening “prod definition term opinion, To the extent inconsistent with this scope of uct” to include within the services *6 Bridge longer Data no followed. should be exemption. tax the sales at 794 S.W.2d 205-06[1]. majority the disagree I with the because an Assembly expressed has never General VI. products classify services as even intent Hearing The decision of the Administrative specific it some services though exposed has Commission is affirmed. v. tax. In Electric to sales GTE Automatic Revenue, this concluded Director Court of PRICE, LIMBAUGH, ROBERTSON, products. services were not 780 S.W.2d that HOLSTEIN, JJ., and concur. WHITE 1989). (Mo. 49, was 51 banc Since GTE DOWD, Special Judge, R. concurs JAMES 1989, Assembly has in the decided General opinion separate in filed. 144.030on several occasions amended section language altering the of section without COVINGTON, J., sitting. not 144.030.2(5).1 legislature’s I the deci- believe DOWD, Special Judge, R. JAMES 144.030.2(5) un- sion to reenact section concurring in result. acceptance changed its of GTE’s indicates agree majority’s that I with the decision products. are interpretation that services not not the sales long ago, IBM and DST are entitled to Court “where As stated this in section a tax contained a statute has received Legislature, after 144.030.2(5). construction, respectfully disagree judicial I with or car- reenacts settled expansion change, reincorpo- majority’s of or definition ries forward without language section con- “product” term as used the exact theretofore rates 144.030.2(5). strued, of disagree presumed im- is to that it knew I further with the it be previ- adopted judicial construction plication passage that of title is determina- and 1996, 509; 466; 1995, 411; p. p. p. p. Laws Laws Laws 1. See Laws 560
ously given Roy to the statute.”- F. Stamm ly reasonably a service does not fit within Co., Electric Co. v. Hamilton-Brown Shoe any these of definitions. (1943).
350 Mo. 171 S.W.2d addition, majority’s expanded In defini- majority Dairy- “product” The cites tion the terra Mid-America of conflicts with the men, Revenue, purpose Inc. v. of Director 924 S.W.2d the sales tax The statute. Gener- of (Mo. 1996), Iron, McKinley Assembly exempted banc and al certain Revenue, Inc. v. Director equip- S.W.2d from the sales tax statute this because of (Mo. 1994), as providing banc foundation ultimately a trigger ment would sale at retail for its decision broaden the of definition products when it was used to manufacture “product.” the term Significantly, neither of ultimately “sold use or consump- final holdings of these an required eases inter- Missouri tion.” sales tax focuses on the re- pretation the tax- Machinery tail See Dean level. Co. Di- payers in seeking cases these were not rector 918 S.W.2d 245-46 fact, tax exemptions for services. a fair majority claims that reading of Dairy Mid-America indicates purpose of section is to “en- equated tangible the Court goods with couraged development enterprises products: product, “It sufficient if the produce products are within the marketable, although law,” Ill, is used instead scope supra of the sales tax sec. processor ingre- however, same manufacturer or added), as (emphasis creating an ex- yet product.” dient or base another emption majority for ser rices as the desires Dairymen, 924 at Mid-America fulfill goal. contrary, will not this To the as added). (emphasis view, In my cases these opinion, a result this sale of justify departure do not existing such from longer subject will no law. even though sales tax equipment may generate prod- a taxable importantly, plain language More uct. such precludes sweeping statute inter- pretation. statute from sales interpret language intending To tax products misinterprets services constitute equipment, plain
[mjachinery meaning directly the mate- the statute’s con- supplies solely required rials and for the the clear travenes intent of General As- sembly. installation construction machin- I of such believe that we should adhere to ery purchased construing equipment, used to the limited role in statutes ex- existing Conagra expand pressed Poultry establish or to manu- new mining plants facturing, fabricating in Co. v. Director Revenue: “This Court *7 not legislative the state if such construe a intent to and should directly is sales tax ... manufacturing, mining exemption used allow a without clear fabricating product statutory language or a effect.” which is intended to that ultimately to or be sold for final con- S.W.2d use
sumption. II. 144.030.2(5), (emphasis Sec. add- RSMo 1994 ed). statute, According product agree majority’s to the is I with a the assessment “manufacturing, the or is not to the mining result of fabri- that IBM entitled sales tax cating.” exemption by computer that a not It is clear service is the virtue of DST’s product mining output fabricating prin- printouts computer or and on microfiche as However, cipal opinion majority that language omits and focuses or microfilm. seems solely manufacturing. exception out an to section question on to carve therefore, remains, is whether not a ser- for DST’s transmissions on vari- or storage majority implies Manufacturing vice can be is ous devices. The manufactured. simply transferred title to defined as “to make into a suitable that had DST customers, by a “sale” for use” or “to make from raw to its would materials these devices exempt from by machinery.” hand or Third have occurred would Webster’s (1976). Dictionary Clear- used to International tax the White, Williams, Robinson, Tur- D. Ronald encrypt on these devices and the information Rolla, P.C., for appel- ley, Rigler, agree I not White & to the customer. do transmit it 144.010.1(8)(ii) lant. analysis. Section with that: 1994 states
RSMo Carnahan, Harvell, & Brian L. Carnahan computer com- selling printouts, [T]he P.C., Rolla, respondent. microfiche puter output or microfilm or compositions computer photo assisted PER CURIAM. purchaser purchaser to to to a enable the dissolved, marriage was parties’ use informa- obtain for his own the desired on judgment a decree the court entered printouts, computer in such tion contained Subsequently, a motion July 1995. or computer output on microfilm micro- hearing a held on filed. At contempt was photo compo- computer fiche assisted entry of year of March within one as the sale of a sitions shall be considered con- called on the motion for judgment, tangible not as sale of service and judg- sought reopen tempt, parties personal property. alleged judg- errors ment to correct majority can I do not understand how the stipulation on parties filed a ment filed. The distinguish computer output on microfiche or judgment A was filed March new computer output microfilm from stored on 11,1996. April on optical optical tape Storage or media. on or proceedings hearing at the on Finding the tape simply equivalent media is modern 14, 1996, consequent stipula- March Optical tape of microfilm or microfiche. 25,1996, parties March tion filed type media is the successor of informa- 74.06, Rule motion under constitute a originally storage tion and transmission envi- judgment is affirmed. Assembly. According sioned the General finding of law in this This no error interpretation existing determining opinion would case of informa- DST’s transmission value, trial precedential court’s have no optical tape tion on media would enti- judgment affirmed this memorandum is exemption IBMtle to an from the sales tax 8). 16(b). decision. Rule passes title not. statute whether This 144.010.1(8)(ii)specifically so because section a
classifies such transmission as sale of service, present and under law service is However, product. not a that the ma- now jority type of this classifies transmissions
products, may IBM claim the sim- Missouri, Respondent, STATE ply upon “passage of title.” PAYNE, Defendant-Appellant
Juan No. 71095. Appeals,
Missouri Court of *8 District, Eastern KUNSTEL, Respondent, A. Laurie Division Five. Oct. Appellant. KUNSTEL, Jr., David W. Rehearing Transfer Motion and/or No. 80223. 24,1997. Supreme Nov. Court Denied Missouri, Supreme Court of Supreme Motion Transfer En Banc. 15,1998. Denied Jan. 27, 1998. Jan.