This appeal involves the appellant’s assessment of a sales tax on repair services performed on electrical transformers by the appellee at its business location in Fort Smith, Arkansas. After exhausting its administrative remedies, appellee filed suit in chancery court, alleging the appellant’s assessment was an illegal exaction. The chancellor upheld the appellant’s sales tax assessment on the repairs performed for Arkansas customers, but disallowed as an illegal exaction the assessment on repair services performed within the state on transformers owned by out-of-state customers. The chancellor also awarded appellee attorney’s fees. Both parties appeal from the chancellor’s decree.
The facts are undisputed. Appellee is in the business of repairing, rewinding and remanufacturing electrical transformers, and while all its repair services are performed in Arkansas, appellee’s customers are both within and outside the state. In either case, appellee sends its own truck to pick up the customer’s burned out transformer, takes the unit to appellee’s business location in Fort Smith for the required repairs and, again by truck, returns the transformer to the customer. As a result of appellant’s sales tax audit of appellee’s records during the period of April 1977 through March 1983, appellee was assessed an additional tax, interest and penalty of $39,361.18.
Appellant first argues the chancellor erred in determining that no taxable sale occurred on services appellee rendered in the state for its out-of-state customers. In reaching his decision, the chancellor reasoned that before a taxable service can exist, Ark. Stat. Ann. § 84-1902(c) (Repl. 1980) requires that the transfer of title or possession of the customer’s transformer must occur within Arkansas. Based upon this same reasoning, the chancellor upheld appellant’s assessment of sales tax upon the repairs appellee performed for its Arkansas customers. Thus, the question posed by appellant’s argument is whether the sales tax can be imposed on services performed on electrical devices when the repairs are performed in the state, but the transfer of possession of the device to appellee actually takes place outside the state. We hold it can, and, therefore, must reverse the trial court’s holding to the contrary.
Arkansas imposes a three percent tax upon the gross proceeds or receipts derived from all sales listed in Ark. Stat. Ann. § 84-1903 (Repl. 1980 and Supp. 1985), and, under subsection (c)(3) of that statute, the tax is levied on, among other things, the service of alteration and repair of electrical appliances and devices. Under Ark. Stat. Ann. § 84-1902(c), the term “sale”, in pertinent part, is defined to mean the transfer of either title or possession for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished. Appellee’s argument, adopted by the chancellor below, is that because appellee picked up and delivered the transformers owned by out-of-state customers at the customers’ business locations, no sale, i.e. transfer of possession, occurred within the state pursuant to §§ 84-1902(c) and -1903(c) to make those transactions taxable. To support its argument, appellee cites the case of Gaddy v. DLM, Inc.,
In considering the proper construction to be given § § 844902(c) and -1903(c), as those provisions pertain to the assessment of taxes on services, it is this court’s duty to look to the whole act and, as far as practicable, to reconcile the different provisions to make them consistent, harmonious and sensible. Ragland v. Alpha Aviation, Inc.,
For example, the general assembly, in three instances, has deemed it necessary to exempt from the gross receipts tax certain services performed in-state on out-of-state property. In 1981, it excluded from the tax the repair or maintenance of railroad parts, railroad cars and equipment brought into the state for such repair. See Ark. Stat. Ann. § 84-1903(c)(3) (Supp. 1985), as amended by Act 983 of 1981. That same year, the general assembly also provided that the gross receipts tax would not apply to in-state services performed on watches and clocks which are received by mail or common carrier from outside the state and which, after the service is performed, are returned in the same manner, or in the repairman’s own conveyance, to points outside the state. See Ark. Stat. Ann. § 84-1903.4 (Supp. 1985). And, finally, the general assembly in 1985, provided an exemption (until July 1, 1987) for in-state repair or refurbishing services performed on telephone instruments that are sent into this state, and, after such repairs or refurbishing, are shipped back to the state of origin. See Ark. Stat. Ann. § 84-1903.6 (Supp. 1985). Unquestionably, the general assembly, in providing for these special exemptions on specified equipment or devices brought into state for repairs, obviously understood and intended Arkansas’s sales tax, levied under § 84-1903(c)(3), to cover services performed within the state for both in-state and out-of-state customers.
Appellant underscores another compelling reason why Arkansas’s gross receipts law must be construed in this fashion by pointing to the absurdities that could result if that law were read to allow the imposition of tax on services only when a transfer of possession occurs within the state. To illustrate, under appellee’s rationale and the trial court’s holding, the repair of a television could be taxable only if the owner surrendered title to or possession of his set. Thus, if the repairman picks up the set and repairs it at the shop, the sales tax would apply; if he repaired it at the customer’s house, no transfer would occur, so no tax would attach. The same rationale would extend to other type services or repairs, as well. In the same vein, we need only look to this court’s decision in Department of Finance and Administration v. Otis Elevator Co.,
Next, we turn to appellee’s arguments that Arkansas’s Gross Receipts Act is ambiguous, vague and violates appellee’s rights to due process and equal protection. Appellee, consistent with its earlier contention, argues that, at best, uncertainty exists under the act as to whether a sales tax should be assessed on transactions involving its out-of-state customers. Referring to Wiseman v. Arkansas Utility Co.,
In response to appellee’s concerns, we simply cannot agree that § 84-1903 (c)(3) is in any way vague in its levy of taxes upon the services provided by appellee. Even appellee concedes that the transformers are electrical devices covered under § 84-1903(c)(3) and, as such, the repairs of the transformers are subject to the sales tax. Contrary to appellee’s assertion, we simply disagree that the tax law is vague in its levy of taxes on appellee’s out-of-state customers. Nor do we agree that the appellant’s prior audit could have reasonably misled appellee into the belief that its out-of-state transactions would not be assessed. We have carefully reviewed appellee’s exhibit #5, which it argues reflects a tax was not assessed on five out-of-state customers; we find the five transactions to which appellee refers bear changes in each instance to reflect Arkansas addresses. In short, the exhibit provides no real insight concerning whether the transactions occurred in state or out.
Finally, appellee attacks the assessment as a violation of the interstate commerce clause, saying all the sales occurred outside the State of Arkansas, and to tax those transactions would have a chilling effect on its ability to do business with out-of-state customers. We find no merit in appellee’s argument. In Evco v. Jones,
Consistent with the foregoing reasons, we reverse and remand this cause. In doing so, we need not reach appellant’s challenge of the trial court’s award of attorney’s fees to the appellee as the prevailing party below, except to state that award, too, is reversed upon remand of this cause.