Kollasch v. Adamany

Judgment remand- By reversed and cause the Court. — personnel commission remand ed with directions opinion. proceedings with this consistent Walgen Mary Mary David Joanne Kollasch, Mary Tritz, Hilger, Concepta Mary Raphael bach, Schlitz, Mary Head, Mary Baptista Mary Philomena Vandervoorde, Verzani, Mary Mary Grace Camillus Mary Mary Delaney, Kesner, Patricia Marie Cora Bermel, Mary Finney, Mary Agatha Mary Margaret Glaser, Mary Joyce Goebel, Mary Helen Martha Mary Mary Harvey, Jungles, Danielle Wal Loretta Siedschlag, Mary Sylvia Mary Kim genbach, Marian Benedict, Madison, berley, Wis Sisters of St. corporation, Plaintiffs-Appellants-Petitioners, consin, a Wisconsin v

. Secretary Department David W. Adamany, Defendant-Respondent. Revenue,

Supreme Court September Argued No. 79-1579. 8, 1981. 1, 1981. Decided December (Also 47.) reported in 313 N.W.2d by Trayton L. petitioners were briefs For the there Shelly Ba/rton, Lathrop, Lawton, J. Michael H. Michael Esch, Lathrop Isaksen, Lathrop, Safer, Mary J. B. Lathrop, argument by L. Trayton Clark,

Hart & and oral all of Madison. argued respondents Gerald

For the cause was attorney general, whom on Wilcox, with S. assistant attorney general, Follette, were Bronson La brief C. Armstrong Wood, assistant at- E. Weston John E.

torneys general. is,

DAY, question Bene- are the Sisters J. The subject carrying dict, work out their charges portion of tax for that made Wisconsin sales guests lodging, al- facilities which is for and of food use ? to meals locable in majority the that Sisters

The of the court concludes furnishing with- are not “retailers” meals their meaning 1973, in and not sub- 77.51(7), the of sec. Stats.

ject to the tax. statute, 77.51,

Because we hold that the sales tax seg., 1979, et the apply, not we do not reach Stats. does by appeals the of whether issue decided court of tax sales is an burden on Sisters’ unconstitutional religion. free exercise of declaratory judgment plaintiffs

The action this priory community are members of monastic Roman Ben- women known as the Sisters of Catholic St. Madison,

edict Wisconsin. precipitated action was This when state advised through attorney required Sisters that statutory pay subject tax sanctions and past. pay for failure to it in the

The follow the Rule of Benedict1 in their individual specify and collective lives. The rule does not type work which its adherents should do. by work which is done is dictated the area in which the live, monks or Sisters and circumstances During Benedict, great time. the time of St. there was develop need agriculture, peo- helped and monks ple develop productive the skills needed to create fields grow crops. and In need to ages, the middle there was a preserve knowledge and writings, and the monasteries learning preservation became centers of of culture. times,

In modern emphasized has Sisters’ work hospitals, mothers, schools, orphanages, for unwed homes recently, and similar work. More the order has been ac- furthering together ecumenism, bringing tive or the dialog respect people in an atmosphere of and mutual persuasions precepts of other accordance with by Pope the Second XXIII Vatican Council started John Pope has be- continued under Paul VI. Such work principal activity come the in- at the facilities2 Sisters’ volved here. following facts taken from uncontradicted county

testimony given hearing cir- held in Dane St. Benedict an Italian monk lived in the fifth was who century. living sixth He was the rule for author monastic only by today, even hut some followed Benedictines many (Rules govern the other monastic orders as well. Basil, Augustine other monastic orders are those of Saints Francis.) 2 buildings The on 135 acres facilities consist of two located Unity Building wooded land: The Center Center and Hall. rooms, Building auditorium, dining hall, a houses six conference library, chapel, forty-three Unity a a Hall has and bedrooms. thirty-three lounges, bedrooms, rooms, a three conference two kitchen, chapel, large a can and a recreation room. The facilities people overnight up people in accommodate 100 over and to 350 opportunities meeting rooms. Outdoor available recreational hiking, swimming, tennis, the center and include basketball similar activities. 556 29, 1978,

cuit court on March and and from the ex- hibits which received evidence. priory incorporated the name “Sisters of

The is under part Madison, Benedict of Wisconsin” and is St. Gertrude, a of fifteen

Federation confederation of St. religious autonomous communities. prologue and Rule Benedict consists

The of St. government seventy-three chapters with the which deal services, monastery, principles, of a ascetical daily property, life, appointment of head of monastery, community life similar matters. and chapter especially to our attention

The Sisters direct 53, guests,” begins, all reception “Let which “on going guests he who is arrive be received like Ghrist ”3 you say, guest, to T as a received Me.’ came comprise the Fed- which The Benedictine communities engage which in activities eration of Gertrude St. appropriate and their location. for the time

believe change or ex- communities relocate As times and the according- changes pand, do the work which sisters Madison,4 ly. first arrived When the sisters girl’s The school. response came in a call start 3 Chapter Benedict, provides 53, as follows: Rule of also Superior announced, therefrom, guest let “As soon as a is . . or the meet him all charitable service. . brethren with prayer, let “After have received taken been appointed by . . Superior with them. . him sit or someone Superior guest, unless the sake of a The break his fast for shall may happens principal day vio- not be it fast be . . . lated. separate guests, there “Let be a kitchen for Abbot may guests, when who are never not be brethren disturbed monastery, lacking irregular ain arrive at hours. . . . guest assigned also be to a brother whose soul “The house shall possessed by fear there be number of God. Let a sufficient it; managed up made let the beds house God prudent prudent men and in a manner.” Gertrude, community, Mother foundress these sisters’ began territory her work went in Indian in the 1870’s. sisters Elkton, Dakota, Indian South where founded a school for school, facilities were constructed to house the as well living provide quarters as for the students and the sisters.

During began offering mid-sixties, the Sisters religious weekend retreats at the center. The ul- timately ability provide decided that their to retreats gathering place and a central fur- for those interested in thering greater ecumenism was worth to the com- munity Mary than was their school. As Joanne Sister Kollasch, principal school, former I said: “When recruiting was out . . work so to students the other .

speak knocking They was . . .” closed the at our door school, eventually named Benedict their facilities “St.

Center,” began develop retreats and conferences furthering purpose consistent with their an ecumen- dialogue city. They ical within also believed reception guests with center was consistent chapter 53 of the Rule of St. Benedict. advisory

The Sisters and members of the center’s center activities of the board concerned that narrowly. and others would be focused too The Sisters carry on a continu- work wanted to active the center’s community ing dialogue possi- with as much of They center access to the ble. did not want to limit groups. solely church leaders and other (Or- Philip O.S.B. Kaufman, Reverend Father Sartorius Benedict) der of testified: extremely limit “I think it would be un-Christian religion organized . . the people . openness all.” thrust calls for whole Christian down, went to Sioux After the burned the sisters children. school boarding they began orphanage City, a home Iowa. There young the area needed for it became evident women. When They hospital, started home established one. also Bishop re- Madison

unwed mothers. Diocese of O’Connor school, staffing quested help and some Madison City, purpose for that sisters moved to Madison from Sioux Iowa in 1953. Mary Kollaseh, Joanne Sister former Prioress center, testified: only speak “We do not wish to to ourselves. wishWe speak dialogue groups: necessarily with other professedly religious groups; those who are encounter, and so dialogue, part exercising is of our our ministry Community.” in the Madison testified, others,

She as did that she is in en- nowise gaged activity. in “commercial” Toward the end of broadening people the base of who made use of the cen- ter, offering the Sisters sent letters to some businesses meeting place. the use of the center as a The Sisters guests. make the accepted decision as to who will be govern- meeting place by The center has been used as a agencies, university ment groups, groups, church non- profit by organizations, and ato small extent business groups. provides meeting rooms, The center several in- cluding large groups a auditorium for these It use. opportunities. also offers outdoor recreational The cen- provides overnight ter use of for a fixed the facilities fee, including linens, room, meals, three two coffee breaks, facility again provides, use. It also for a fee, daytime facility use, including fixed lunch cof- evening including use, fee breaks, facility dinner and experience, one their coffee break. Based on own charge organizations. religious often fee smaller day prayer The starts with to which common by participate, are At invited to followed breakfast. a.m., prayer service, open all,

11:45 held and fol- by Vespers p.m., fol- lowed are at the noon meal. 5:15 by guests supper. Participation lowed in the purely voluntary. services is prepare was described food which the Sisters vegetables normally “simple,” includes

one them as grown garden. no menu. The in the center’s There is furnishings overnight stay provided rooms and their simple spartan. were also described as and rather Guests expected up make own beds when arrive. following charges is a breakdown of for meals types groups the various served to which used the center from 1969 to 1973: Benedict,

In accordance with Rule-of if a guest pay arrives who cannot afford to for food lodging, away he is not turned but is some asked do hosp exchange work around the center for the Sisters’ itality.5 guests pay help Even those who are invited to with the dishes. given

Guests at the center are a short orientation lec- ture on the daily center and are invited to attend the prayer services if join wish to do The so. Sisters guests They their meals and converse with them. generally religion during do not discuss their meals with guests guests bring subject unless the up. Philip Kaufman, Father Sartorius O.S.B. testified: period: monastery pretty “. . . at an earlier a was well self- They every- gardens, herd, sufficient. had own their own

thing. guests policy through came and the was centuries pay pay. They usually, those who couldn’t didn’t however, corrupt to do asked some one kind work. . . can those trying help we wrong are charity. with the (Em- kind . . .” phasis added.) declaratory judgment precipitated

This action for was attorney when the dated Sisters’ received a letter Janu- ary 10, 1974, representative department from a necessary Ben- which stated that it would be to have St. register permit, a tax,

edict for obtain Center sales September make for sale of available from records meals 1, 1969, Febru- to date. He also received a letter dated ary 8, 1974, stating fell within the defi- that the Sisters (a), Stats., provided 77.51(7) nition of “retailer” in sec. gross receipts

and that sale of meals were from their subject 77.52(12), provides that to taxation. Sec.

person operates a in the state of Wisconsin who seller guilty permit without a of a misdemeanor. declaratory judg- brought a this action for tax and the sales

ment that were not liable for enjoined at- department also asked that tempting a sales penalize obtain them failure to for requiring pay tax on permit tax and from them to guests.6 meals furnished to judgment answer, requested department

In its required declaring to obtain that the Sisters non- meals, pay tax on permit and to tax for the sale of granted judgment exempt sales. The trial court ground provision meals department on the religion” and was was not “an exercise of the Sisters 77.51, seq., The court taxable et 1977. under Stats. pursuant appeals furnished

of held that the meals were religion, were taxable to an but that exercise of nonetheless. appeal: on our

Two issues are raised for consideration by sec. 77.51 “retailers” defined 1. Are as the Sisters by imposed Stats., tax (7), liable who are for the not. sec. 77.52? holdWe 6 Mary Walgenbach, Prioress, testified that David Sister “charges” kept allowed should be

never even track of what activity. questioned their until the state meals

561 imposition lia- apply, of tax does does 2. If the sales violate bility tax on for collection the sales religion? In right their to the free exercise of this question one, not decide view we do of our answer issue. judicial prudence, should a court

As a matter of is es- constitutionality unless it of a statute decide it. Smith before of the case sential to the determination (1955). 390, 429 384, N.W.2d Co., v. Journal 271 73 Wis. imposed only A tax can be

As to the issue: first ambiguities express all language, clear of the in favor applicability resolved tax must be of the imposed. sought upon person the tax is whom Revenue, Corp. Dept. 91 Wis. Kearney Trecker v. & (1979). construction 753, This 746, 2d 284 N.W.2d 61 applicability issue contrasts tax is at when the exemptions taxa interpretation with the accorded per against tion, ambiguities wherein are resolved Broadcasting claiming exemption. son Mid-Continent 390, Revenue, 379, Dept. 297 N.W. Co. v. Wis. 2d ambiguity statutory (1980). is wheth 2d 191 The test of being two dif capable construed er statute is Dept. ways by reasonably persons. ferent well-informed 44, 2d Refining Corp., Revenue v. Milwaukee Wis. of 49, (1977). 257 N.W.2d 855 77.52(1), imposed Wisconsin sales tax

Stats., which reads: (1) Imposition of retail sales tax. For “77.52. tangible renting personal

privilege property, parts, supplies leasing selling, attachments, including components, accessories, imposed a tax is materials, at retail gross receipts upon rate of all retailers 4% prop- tangible personal sale, or rental of from the lease attachments, accessories, components, including erty, parts, supplies materials, sold, leased or rented at retail in (Emphasis this added.) state.” 77.51(7),

“Retailer” is Stats., defined in perti- sec. provisions nent of which read as follows: “77.51. (7) Definitions ... ‘Retailer’ includes: “ (a) Every tangible seller per- who makes sale of property sonal or taxable . service.. . “(b) Every person engaged making in the business of tangible . personal of . . property for use storage, consumption or making or in the business of sales at auc- tangible personal tion property person owned storage, or consumption.” (Em- others for use or other

phasis added.) 77.51(7) (a) “seller,” Section defines “retailer” as a (b) while “person engaged sub. defines a retailer aas making the business of It sales.” is clear from the record engaged that the Sisters are in a voca- tion, “engaged and are not making in the business of sales.” Therefore 77.51(7) (b) sec. “re- tailers.”

The term “seller” is 77.51(9), defined in sec. Stats.: “77.51. (9) Definitions. every ... ‘Seller’ includes person selling, leasing renting tangible or personal prop- erty selling, or performing furnishing services of a gross kind receipts sale, lease, rental, per- furnishing formance or required of which are to be in- cluded in the measure (Emphasis sales tax.” added.) juxtaposition statutory definitions creates circularity. 77.52(1), Sec. imposes Stats., a tax on “retailers.” “Retailers” 77.51(7) are defined in (a) sec.

as “sellers.” “Sellers” are then 77.51(9) defined sec. “persons” receipts activity who collect for an included pursuant the measure of the sales tax 77.52(1). circularity

This scope makes the of the statute am- biguous. interpretation One would be to read either the

563 Stats., 77.52(1), or “seller” in see. word “retailer” meaning “person.” 77.51(7) (a), This would sec. 77.51(7) (b) in sec. “retailer” definition of

make the in broad superfluous, with the would be consistent but Recht-Goldin-Siegal by terpretation adopted this court term 303, Revenue, 2d Dept. 64 Wis. t. v. Cons may Alternatively, (1974).7 “retailer” 219 N.W.2d 379 “per term something the more inclusive less than mean meaning give interpretation would son.” Such (a) (b). 77.51(7) appro statutory construction to rules Recourse pur ambiguity. statutory of a priate in face intent of statutory is to discern pose construction 340, Soderbeck, 331, 2d 94 Wis. legislature. v. Cross statutes, construing (1980). When N.W.2d 779 288 sen word, every clause given meaning be should which would statute, and a construction tence in the superfluous be avoided should part of the statute make Bylewski, 94 County v. possible. Columbia wherever con (1980). 129 When 153, 164, 288 N.W.2d 2dWis. in relation it

struing statute, must consider the court object context, subject matter scope, history, its Em v. Wisconsin Berns accomplished or remedied. to be 252, 265, 299 N.W. Comm., 2d ployment 99 Relations Wis. usage approved of words (1980). Common

2d 248 contained may established definitions in a statute Haese, dictionary. Estate 80 recognized In re in a (1977). relat 291, 285, 54 Statutes 259 N.W.2d 2dWis. may in con subject

ing matter be considered same Bingo Sup. & statutory provision. struing Wisconsin 293, 303, Bd., Bingo 2d 276 Equip. 88 v. Control Wis. Co. (1979). 716

N.W.2d “ 7 always terms in both in the broadest defined ‘Ketailer’ was present both A ‘retailer’ under statute. statute and tangi every taxable sale of seller who makes statutes includes Recht-Goldin-Siegal Const., supra, property.” 2d at 310. 64 Wis. ble taxability depends of a sale specific on the cir- cumstances of the transaction to which it relates rather parties than of the to it. statutory This is evidenced provisions such as those which absolve a retailer the tax on sales to (sec. 77.52(6), uncollectable accounts Stats.) ; exempt which up from sales tax to three fund- raising year sponsored by events a types certain of non- profit organizations (secs. (c) 77.51(10) ; 77.54(7)); or exempt goods from tax the sale of that are con- sumed in manufacturing process (sec. 77.54(2)).

Other statutes which stress the nature of the transaction 77.54(8), charges include sec. exempts which finance only separately if stated rather than included in the price goods 77.51(11) (c)2, sold, sec. gratuity charge

taxes a if it is in the form of a set added bill, on to a but not if determined and left con- goods sumer or provided. user of the or services Regulations promulgated by agen- department, cy responsible administering tax, sales also focus on the features of the transaction determine whether proceeds subject derived from it are to the sales tax. (4) Sec. TAX (f), provides 11.10 (1978), Adm. Wis. Code primarily someone who will makes nontaxable sales responsible still particular on for the tax those trans- exempt, actions which are not minimal however may light inbe of the seller’s overall business activities. also, Similarly

See 11.87(2) (b) (1978). sec. TAX sec. TAX 11.04, Code, (1979), exempts Wis. Adm. the sale building directly materials which are made to tax ex- empt taxing entities while similar materials sold to despite contractors hired such entities the fact that may the ultimate use of the materials be the same components (i.e., both transactions a church or school). A noninclusive list of other code administrative specifics sections which focus on the of the transaction Code, 11.09, (1978), are: TAX Adm. 11.45 Secs. Wis. (1978), dependent

Code taxation of medicine on whether prescription over-the-counter; (1978), or TAX sec. 11.29 goods transaction not to be or rented taxable if leased (1978), consumed; rather than TAX 11.50 used exempting receipts types from of auctions but some from others.

Prior on decisions of this have also focused court deciding specific circumstances of the transaction receipts In therefrom are taxable. three whether derived involving essentially personal all of the cases sale of property pursuant owner- of a business transfer ship,8 determinant this court held that critical permit taxability was whether held a the seller seller’s two of at the time the transaction was consummated. In 379, cases, supra, 98 Wis. 2d Mid-Continent, 499, permit Ramrod, 2d seller held supra, 64 Wis. sale, held that the time of the and this court 77.54(7) pursuant to secs.

transaction was taxable court (10) (a), Stats., third case this 77.51 while tax, despite exempt held the sale to be its facts, seller had surrendered similar because the' supra, Lions, sale, permit prior Three seller’s 2dWis. 546. Revenue, Dept. 84 Wis. Data Center v.

In Janesville of (1978), that a held 341, this court 2d 656 267 N.W.2d magnetic tapes for keypunched purveyor and of cards subject the sales computer programs was use tangible transfer of involved the tax. The transaction tapes. deter This court property the such as cards in was transaction of the the essence mined tapes, held and then on the cards encoded formation involving the trans- one primarily was that transaction Revenue, supra, Dept. 8 Broadcasting Co. v. Mid-Continent of Revenue, Dept. 72 Supper v. Club Three Lions 379, 98 Wis. 2d Ramrod, Dept. Inc. v. (1976); 546, 190 N.W. 2d Wis. 2d 241 Revenue, (1974). 499, 604 2d 219 N.W.2d 64 Wis. intangible property

fer of scope was outside of the sales tax statute. Similarly, Dept. Revenue v. Milwaukee Refin

ing Corp., supra, 44, analyzed 80 Wis. 2d court this gold alloys sale of to dentists and determined that nature of the transactions was not a “sale made at retail by a retailer” taxable under sec. 77.52(1), Stats. The patient, dentist, dentist’s rather than the ulti was the alloy alloy mate consumer or user of the since the was not placed withdrawn the market until the dentist patient’s in the Accordingly, mouth. since dentist consumer, was not ultimate this court held sales were not pro taxable sales at retail and ruled that alloys subject vider of the was not to tax on these trans Data, In supra, actions. both Janesville Wis. 2d 345-346, Refining, and Milwaukee supra, 80 Wis. 2d at 48-49, applied ambiguities this court the rule that all scope taxing to the of the statute must be construed in against taxpayer imposition favor of the tax. meaning depends of the word “retailer” also on instance,

the transaction to which it relates. For 77.51(7) Stats., (d), will declares that wholesaler persons deemed retailer as to transactions made sellers, yet scope other than be outside of the term in all other cases. ap-

Because word “retailer” is so central plicability tax, defi- the various because 77.51(7), Stats., nitions of the term forth ob- set in sec. clarify term, dictionary

scure rather than recourse discerning legis- appropriate is an definitions means of Dictionary, lative intent. Third International Webster’s (unab. 1976), defines “retailer” as “one retails something [ically] specif . . . middleman : a merchant goods mainly who sells ultimate consumers.” same buyer source defines “merchant” as “a and seller com- profit; . operator . retail busi- modities for . the of a ness.” conception by as shown

The common of a retailer, dictionary definition, is one who transacts business with making profit hopes a consumer in on transac- ambiguity, statutory is it unclear tion. Because meaning legislature by this was intended whether in the sales tax statute. nonprofit solely groups not, by

It is are vir- clear that upon not-for-profit nature, exempt from tax tue of they by is oc- all which make. This evidenced exemption 77.51(10) (c) casional sales contained in secs. (7), Stats., applying groups. TAX to those Sec.

and 77.54 conclusion, 11.10, supports (1978), this Wis. Adm. Code exemption meals repeal of tax for all as does the by formerly groups, 77.52 contained served such 7, was (1) (a) 1967, tax Stats. when the selective sales 217-279, general chapter changed by 154, tax secs.

Laws 1969. generally nonprofit group, finance its eleemos- A may activities, specific transactions or ynary enter into deriving profit undertakings there- hope with may nonprofit groups for the be “retailers” from. These seeking profit there- purpose of transactions and those receipts tax derived therefrom liable for the sales on fore specific exemption unless can claim some from concluding nonprofit groups not However, tax. gross receipts

exempt tax on derived from the sales into not all does from transactions enter ipso groups for tax on require that are liable such facto every en- receipts in which derived from transaction gage. may engage organizations

Nonprofit transactions sought. of meals on profit Provision which no is example activ- of such an row” missions is “skid recompensed organization some- ity. The fact that activities does of such the beneficiaries what fundamentally nature of change nonmercantile concept of “retailer” conclude transaction. We 568

embodied in sales tax encompass the statute does not fundamentally such nonmercantile transactions were as engaged by the case, Sisters on the facts this any receipts that derived therefrom are outside of scope of the sales statute. tax statutory interpretation by

The appeals, court of which held the to be retailers Sisters because sale their Stats., 77.54(20) of meals was excluded (c)l, sec. 77.54(20) exemption food, the sec. accorded there-

by making sellers, unsatisfactory. equally them is As a statutory exceptions matter of construction, contained in only immediately apply statutes should be read to preceding legislature it section unless is clear that in- otherwise, see, tended Casualty Mut. Ins. v. Rural Loof Co., 512, 516, 14 (1961). Wis. 2d 111 583 We N.W.2d legislature can find no indication that intended (c)l 77.54(20) exception anything sec. to relate to more general exemption than the tax food contained accorded light requirement 77.54(20). in sec. In am- biguities against tax, imposition we construed appropriate exception do not it believe to read exemption (c)l (20) expanding in sec. contained 77.54 77.51(7). the definition of retailer in sec. contained give applies The construction which to “retailer” we 77.51(7) (b), Stats., persons the sec. definition to all “engaged making per- in the sales.” business Those are, by statute, required pay gross sons a tax on receipts they of all retail sales which enter into unless point specific exemption can tax. from the 77.51(7) (a) requires persons Sec. who are not in making pay business of sales to if are the sales tax engaging i.e., in a transaction sellers — gross receipts subject pursuant the sales tax 77.52(1). type transactions which one make 77.51(7) (a) a sec. retailer are mercantile ones. support presented extensive evidence Sisters position the meals which served guests their re- in furtherance of

ate with their ligious Especially relevant to this determination beliefs. Benedict, requiring chapter of the Rule of testi- welcome. Uncontested to make all

mony Catholic, and Jew- Protestant the Sisters primary religious that one of the ish leaders established to the ecumenical missions of the sisters was further persons by providing place of all where movement a gather religious surround- beliefs could comfortable ings. that Furthermore, it Sisters was established furthering religious ecu- that and other believed leaders groups religious required menism that other than again persons brought help dialogue, into the understandings. backgrounds common reach from diverse presented that controverted There was no evidence their sole that well-documented contention religious opening than motive for center other groups was to their ecumenical ideals. advance lodging charge charge food, for of set fee a a meeting establish facilities not itself does Testimony provision. mercantile motive underlies Benedict, pursuant of that, to the Rule established lodging for who provided the Sisters food of records pay the The financial fees. unable money every year that it has lost the center reveal that that the operation.9 was uncontroverted has It it been for the deficits An accountant for center testified five-year period center for were as follows: $17,601.44

“1973— $41,566.36 1974— $25,246.43 1975— $11,672.44 1976— $34,020.66” 1977— deficits, operation up money from the is obtained To make such hospital Iowa, City, allocated where salaries of their in Sioux sincerely Sisters are dedicated to the ecumenical cause they, religious and that leaders, as well other believe provision relaxed, setting that the pastoral in which persons backgrounds meet, converse, from varied can together way promote break bread is an effective understanding among callings people of and be- various liefs. percent than evidence showed that less three gross receipts people for meals came from who came sponsored Perhaps center with seminars. business relatively spartan atmosphere center is not larger

attractive because tax write off that busi- people get ness can in more luxurious seminars held surroundings. says

The state in effect: you educational, “When serve meals to members of governmental your guests groups who are dowe we will assume demand sales tax because exemption have tax which from that entitled, you but not because what are but because of you what Conversely group are. if busi- serve professional people ness or on or there re- individuals you pay treat then must a tax.” But the evidence shows that the Sisters make no such They people, people distinction. with, all see them as share to dialogue friendly, relaxed, to have in with out- the going eating, praying act of talking, perhaps and to- gether. purpose teach, Its is to aware to make others it, that why what the do and worth Sisters do is thinking about, appreciating, sharing, worth worth no foreign strange matter experi- how or to the others’ may ence or tradition it be. hospital budget Sisters the are turned over to the Order money testimony and some oí that here. used There was also that hospital registered a Sister who in a works local as a nurse turns salary pursuant her over to the Order to its rule of individual poverty. testimony respond.

The shows do Some work, talk, or with their to alone, come back families pray. sign fellow- shared meal has been a Christian ship days apostles. since the of the day together by day, attending temple partook the “And

breaking glad with homes, of food with bread generous having hearts, praising favor God people. to their number all the And the Lord added day 2:46, by day being Acts who were saved.” those R.S.V. tra-

So too St. Benedict follow the same spirit hoped dition in the for re- same for same sults. it To achieve follow the rule laid down years ago. their founder over 1400 religious aspect sharing of meal was testified Swarensky: Manfred Rabbi regarded serving meals, “. . a . even which can be as thing, activity, mean, I same secular but Benedict’s or restaurants do the it it at the Sisters do difference whether instance, Hotel, or other Park I

commercial establishment. the difference? What’s really it, go deeply however, I don’t want too into point of the say feel I original of view should From the this. view, serving a meal and traditional Christian Eucharist, com just activity,'but is not it’s secular always meals, they re service, munion and other garded sense meal in broader sacramental word; only presence namely, of the there is not also is participates but there of the meal individual who a visible or invisible back newing human lationship meal cient times. Now goes presence of even God purpose of re is for the It Ancient Greeks. attend, among people who kinship reviving renewing their re kinship, and also way a This is the individual to God. of an context of been seen Christ1’amtv has in petered out little bit our it a has amount that a certain but I do believe thinking, secular briefly and still exists described spirit I of that which . .” here.. at Center does obtain also serving sharing Preparing, ques- meals here religious tion is as praying much a equally act as complete untaxable. The lack of mercantilism in the ac- separates tivities shown this record the Sisters from any contemplated by definition “retailer” our sales tax statute. serving the record

What makes is that meals clear a supporting ministry; not means of integ- it is an part ministry. ral of their

This is in contrast to meal service a mere fund support religious raiser to other charitable or activities everyone is familiar with. put testimony state in evidence state em- ployee arranged training who had for for cer- classes employees tain state at the center. He testified that the price attractive, relatively was the center was close building adequate the state provided office facilities department’s purposes. for his He testified the Sisters gave either a talk or film ex- showed a about the center plaining the work of the center and them to the invited religious given testimony services. had Similar been several times witnesses for the then tes- Sisters. He any religious tified that he didn’t attend services at Apparently the times he was there. the state’s purpose in the latter statement was to show that up purpose whole set had as far as he was no merely cheap concerned and him at that to least it was department train- convenient for accommodation ing session.

Undoubtedly, there have been those who have entered get only But Cathedral Chartres out of the rain. change beauty such an act cannot detract from its purpose noble it built. was

We meals conclude the served the Sisters under subject circumstances shown this record are not the sales tax. Judgment

By and cause remand- the reversed Court. — judgment that circuit enter ed with directions the court declaring for plaintiffs not liable sales tax that re- and are not meals at the center served quired permit. a seller’s to obtain (concurring). opinion

COFFEY, I of concur the J. following analysis of the majority the and offer the only fur- applicable provisions to this case sales tax tax was not sales the Wisconsin ther demonstrate apply those of the Sisters to activities like intended in this case. involved Benedict analysis upon significant paradox in the is a There pro- have litigants the courts below the lower it been record has in the in this case. Nowhere ceeded charges appear undifferentiated whether made to and use and meals petitioners for rooms made sponsor- against the various were assessed the facilities participants against ing organizations the individual or appen. meetings. (pet. appears respective It in their capita per only on 305) were calculated the rates was petitioners’ facilities basis; of the that the use meetings conducting and meals group purpose for the charge. But even provided without an additional were regardless assumption, clear that it seems so, of this such, not, ultimate sponsoring were associations Therefore, provided. either of the meals consumers participants question made the individual were participants), or through agency of the (perhaps organizations re- sponsoring made to assigned spon- by the sold, transferred or otherwise participants. soring organizations individual buyer- If important one. difference is kind, the involvement relationship first was seller group sponsoring nonexempt status exempt or wheth- squarely one of becomes The issue immaterial. charge, in- even for a regular provision meals er purely or conference retreat to a cidental subjects peti- families, privately a few convened liability. tioners to sales tax type, relationship second

If, however, was for resale intended apparent meals were it is groups, could not consti- by sponsoring thus, sales,” “gross from retail income retail” or tute “sales at group was sponsoring regardless not the or of whether ex- (9a). to such exempt e.g., sec. 77.54 Sales under also arguably taxable nevertheless, groups may, empt 77.51(4) (b), against by petitioners virtue sec. the meals

assuming groups in fact transfer that such considera- participants “without valuable individual frequent- meetings However, most since business tion.” entity, particular agents employees of a ly include probability in employment would all whose contracts of consideration, requisite provide the themselves receiving compensation in re- organization is business actually regardless money meals, of whether for the turn changes hands. petitioners have that the in this case it is evident

Since exemption sought certificates neither nor obtained organizations to whom any from of the individuals pre- supplied meals, procedural have offered exempt sumption may sales are arise that none gov- exempt for a sale to an either as a sale resale or as organiza- educational, scientific or research ernmental, respondent But, position in this taken tion. only

litigation petitioners for those are liable —that organizations incon- (or for) business sold to meals —is 4). (Res. Most any hypothesis. with such sistent br..at currently plaintiffs are meals “sold” of the meals religious organiza- bought by governmental, charitable or (a), 77.52(9) exempted by sec. purchases are tions whose nonexempt only on sale issue here is The tax at Stats.

groups. concession, indeed, it ob- anomalous

This is an by corporations or as- not consumed are meals vious that kind, only by If the sociations of but individuals. fact, corporations question in and as- were,

sales question sociations, were not it is clear that the sales necessarily exempted retail,” and, hence, “sales peti- “gross under the tax act. The income” event, not, “seller” in that have been a tioners would (9) therefore, and, under sec. 77.51 because seller, they under a “retailer” could not have become Nor, 77.51(7) (a). parties both lower as the concede, appear have been considered

courts could 77.51(7) (b), it to be because seems a retailer under sec.

clearly appellate “that in the court decision established engaged en- no time in a commercial were at groups.” furnishing terprise such as meals business may degree respecting this arise of dissent Whatever appeals, as addressed conclusion of the court meetings, no I know of participants business various simply logical individuals, who reason to believe that participation in a partake incidental of meals their arranged religious exercise, physical en- privately in the monastery, and invited vironment of a as selected religious order, transpose that of a can translate or trifling making simply by activity into a taxable sale considering the payment. without contribution Even or express protection exercises under afforded to Amendment, beyond any reason- the First it seems clear enjoyment simple question with able that of a meal guest family scope or falls within the zone of es- infringe privacy sential which must or the state not enter upon. general presence 77.51(10) (a),

But for the of sec. operate every sales tax statute would of a to make head Department household accountable to the of Revenue as a “seller” and “retailer” as an inci- she, whenever he or value, meal, anything dent to the service of a received of including any fees, charge, charge service labor or other charged price

addition added to the a re- customer tailer, represents gratuity tip or is in lieu of a aor (sec. 77.51(11)). adults could be re- Children or quired permitted keep” by helping or with to “earn their family chores, kitchen or household or to contribute support earnings, personal out of ex- their own without posing parents possible misdemean- criminal (sec. per- (12)) or 77.52 to obtain a retailer’s failure commercially mit, comply any or to with ori- other accounting Logically, procedures ented of the act. reasoning necessarily apply

same would invited guest expect- private whose contribution to a meal was quarterly monthly accepted. ed or The institution of or bridge, gin cribbage “pot rummy social clubs and picnics immersed in luck” dinners and would thus be regulations. and inundated with a sea of revenue legislature, enacting There can be that no doubt 77.51(10) (a), institutional was alert to the obvious shoals, absurdity, practical as well as the of so obvious rights wanton invasion familial of the fundamental privacy. squarely However, appeals, the court faced saving question provision with the was of whether group, any “neighborhood association, available civic garden club, organization” light club, social or similar (10) organizations of sub. ruled all such (c), confined in exer- to the narrow stricture of that section cising degree circumstantially privacy was whatever disagree. my (c) view, (10) due I creates them. In sub. priori presumption nontaxability

an a in favor of activity organizations named within the bounds events, days.” described, is true “Three seven This whether the number of “admissions or tickets” taxable days within ten The subsec- those is or ten thousand.

tion, my occupational opinion, apply in and does not to private (a) sellers, para, was de- distinction which signed preserve. adopted to the court The construction against pri- appeals operate of would to discriminate religious groups, reversing vate and the constitutional priorities. ground

Further, or there is an additional reason for holding protections para, (a) of that are available petitioners, to of these the limitations uninhibited para. religious group (c). person, Neither a nor a of religious residing together religious people, in a com- munity of discipline under the and control strict respective properly or order, can be called a “church” organization.” oper- privately and “similar Their held not, living dining activities are ated and and facilities demonstrates, open public as the all record peti- entry, religious purposes. The who seek even for accurately facility unambiguously de- is and tioners’ “monastery,” of which is radi- scribed as a the function church is cally A different that a church.

designed aof wide needs accommodate the formally range parishoners, people known as some registered as such activities and active in the church’s monastery, contrast, pri- episodic. is and A some mary worship, contemplation and place of residence, joined group religious people service of a closed cloistered, sisterhood, frequently even brotherhood or separated apart While outside world. from the churches, and share monasteries are members faith, evangelistic theological of their doctrine kinds distinct, very separate different two are to their importantly, respect, most with institutions privacy. public restau- operate a

If these monasteries setting offer facility rant outside their monastic enter, lodging to whomever chose and serve meals and the court presented to question a far would be different sketchy There record. facts set forth than the question, however, such circumstances no no showing presented record is void herein. The monastery premises to upon anyone entered break bread, lodging-, participate secure in intellectual and ecumenical dining discussions at the table with the sisters, except upon prior designat- (expressly invitation ing guests) them as at monastery meal. Nor under unbending the strict and Order, any- rules of the could one Thus, do so. ruling to enforce the the court of of appeals go beyond would mandates the revenue significantly code and invade the sisters’ reasonable expectation well-established privacy, contrary dictates of law.

SHIRLEY ABRAHAMSON, (dissenting). S. J. Al- though may I impose think it unwise to a sales tax on Sisters, question of who should be taxed is one legislature, not for the The issue courts. before this court is present whether under the statutes the Sis- ters are taxable. majority interprets requiring the statutes as two

types persons pay gross a tax receipts on the nonexempt “engaged retail sales: Those in the business making (sec. 77.51(7) Stats.) sales” (b), and those “who are not making in the business of sales” but are engaged in (Sec. 77.51(7) “mercantile” transactions.

(a)) Supra,, p. majority 568. The does not define what it means “mercantile transactions.” Nor does the majority person “engaged tell us how a in the business making engaged sales” differs from a seller in “mer- cantile defining transactions.” terms, Without majority explain why cannot are not includ- ed within at reasons, least one of these terms. For these I majority opinion find unpersuasive.

I would appeals affirm the decision of the court of holding that, although religiously work is Sisters’ commercially than motivated, rather the sales of meals the Sisters fall within the tax tax statutes unconstitutional.

Case Details

Case Name: Kollasch v. Adamany

Court Name: Wisconsin Supreme Court

Date Published: Dec 1, 1981

Citation: 313 N.W.2d 47

Docket Number: 79-1579

Court Abbreviation: Wis.