*1 717 in the fault of counsel here was the ap- appeal through and be saved cannot dismissal instance, persisted because the defect com- first of substantial plication doctrine procedure. imperfect processing reflected of an policy is a decision that is pliance, humil- adopt a of stance neces- This Court should policy in 73.02. This choice is CR of for its share responsibility take preserve finality judgments. ity and sary to the of the goal of system. of The the failure this Id. at 950. for the fair determina- as forum judiciary above, the set forth For reasons dis- on the merits is controversies tion of Kentucky of decision position of by the inflexible served hereby affirmed. is majority. KELLER, COOPER, and STUMBO, JJ., join this and GRAVES
WINTERSHEIMER, JJ., concur. opinion. dissenting LAMBERT, C.J., by separate dissents JJ., STUMBO, with opinion, GRAVES that dissent.
joining Justice,
LAMBERT, dissenting. Chief
Respectfully, dissent. a me- drop” system “clock is person, substitute for a live
chanical by instituted the clerk’s system this was CABINET, Commonwealth REVENUE convenience. office administrative Kentucky, Appellant, Moreover, the notices of practice filing v. through system accepted appeal is It the Jefferson Circuit Clerk’s office. HUBBARD, Erika Administrator Court, as approval of this also has tacit Hubbard, Andy H. Estate d/b/a Thus, we validity. we have not denied its Age Laboratory, Dental Stone sys- who punish not those use this should Bianchi, D.M.D., Appellees, W. John poli- adhering tem now outdated compliance strict when substantial cy of compliance regard standard with Hubbard, Administrator Erika appellate To do so procedure. rules of Andy Hubbard, H. Estate of d/b/a accomplishes purpose recognized no Laboratory, Age Dental meaningful within the administration Cross-Ap Bianchi, D.M.D., W. John the courts. pellants, party preju- here not opposing was A delayed. diced. The lawsuit was not Cabinet, Commonwealth from the office simple phone call clerk’s Kentucky, Cross-Appellee. notifying engendered of the defect counsel Thus, majority 1999-SC-0171-DG, an immediate cure. No. nothing Pyrrhic opinion represents but 1999-SC-0992-DG. form Justice triumph of over substance. Kentucky. Supreme Court of and its effective administration been served. 21, 2000. Dec. device offered a mechanical When March 2001. Rehearing Denied Kentucky personal service
lieu guard system, the device should court or the should user error court
against its imperfections.
make concessions filing notice of
Although the defect *2 Anderson, Dowell,
Lauren M. Douglas Cabinet, Legal Revenue Division Ser- vices, Frankfort, Appel- Counsel lant/Cross-Appellee. Hendrickson,
H. Kent & Hendrick- Rice Harlan, son, Appellees/Cross- Counsel for Appellants.
JOHNSTONE, Justice.
Bianchi, D.M.D.,
Appellee,
pur-
John W.
items,
dentures, crowns,
e.g.,
chased dental
braces, etc.,
bridges,
Appellee,
from
paid
Bianchi
Age Dental Laboratories.
sales taxes on these
Bianchi re-
items.
quested a tax
refund from
(hereinafter
Cabinet”) for
Cabinet
“the
paid
grounds
on
taxes
these items on
exempt
these items are
from sales and use
pursuant
taxes
KRS 139.472. The Cabi-
request.
net
The matter was
denied
appealed
Kentucky
to the
Board of Tax
Appeals, which affirmed
Cabinet’s de-
Age
nial of the refund. Bianchi and Stone
Court,
appealed
the Harlan Circuit
physi
are not licensed
of Tax
Dentists
Kentucky
which reversed the
Board
statute,
within the
Appeals.
appealed
to the
cians
Cabinet
part of the
we focus on the second
which affirmed
thus
to determine whether
part.
granted
and reversed in
We
discre-
order
“pros
question qualify
reverse and remand.
tionary review. We
dental items
*3
individually designed,
...
thetic devises
dispute
in this
There are no facts
solely
altered
for the use of
constructed or
presented, statutory con
case. The issue
to
particular crippled person
a
so as
be
139.472, purely a mat
struction of KRS
brace, support, supplement, correc
come a
subject
and
to de novo review
ter of law
bodily
for the
structure
tion or substitute
”
Isuzu
by this Court. Bob Hook Chevrolet
question
of this
turns
.... The resolution
Commonwealth, Transportation
v.
Cabi
“crippled.”
by
on what is meant
the word
(1998).
net,
488, 490-91
Ky., 983 S.W.2d
Dictionary
New International
Webster’s
(2d ed.1960),
“cripple”
defines
as:
basic rule of
begin
We
with the
(1)
a limb and
deprive
to
of the use of
exemptions
that tax
statutory construction
especially leg;
a
construed,
party
narrowly
are
and
(2)
deprive
capability
for service or
exemption has the burden to
seeking the
efficiency, or wholeness.
strength,
he, she,
that
or it is entitled to the
show
Lines,
exemption. Delta Air
Inc. v. Com
definition,
physi-
someone is
Under this
monwealth,
Cabinet, Ky., 689
deprived
cally “crippled” when he or she is
(1985);
17
see also KRS
S.W.2d
the use
a limb. The statute embraces
139.260,
of con
which codifies this rule
of the term. The statute
this definition
struction.
“crippled person(s).”
twice refers
“crutches,
exempts
walk-
second reference
Age argue
Bianchi and
KRS
beds,
ers, hospital
wheelchairs and wheel-
139.472(2) exempts
dental
items in
for the use of invalids
lifting
chair
devices
question
Kentucky’s
from
sales and use
Clearly,
crippled persons.”
this ex-
and
139.472(2)provides:
tax. KRS
persons who have
emption is limited to
physical
“Prosthetic devices and
aids”
walking or are unable to walk.
difficulty
purpose
for the
of this section shall
in the statute ex-
The first reference
pre-
mean and include artificial devices
“individually de-
empts
prosthetic
a
device
by
physician,
a
or indi-
scribed
licensed
solely
or altered
for
signed, constructed
vidually designed, constructed or altered
so
particular crippled person
a
the use of
solely
particular crippled
for the use of a
brace, support, supplement,
a
as to become
brace,
person
support,
so as to become a
bodily
for the
correction or substitute
for
supplement, correction or substitute
extremities of the
including
structure
including
structure
the ex-
”
added). The
(emphasis
....
individual
individual;
artificial
tremities
part of the
Appeals held that this
limbs,
pre-
eyes, hearing
artificial
aids
ques-
items in
exempted
statute
the dental
indi-
physician,
scribed
a licensed
or
tion.
vidually
or altered
designed, constructed
“A
“Extremity” is defined as:
limb of
solely
particular
for the use of a
disabled
walkers,
beds,
crutches,
body;
leg; esp.,
an arm or a
the end
person;
hospital
part
de-
of it.” Webster’s New International
lifting
and wheelchair
wheelcnairs
(2d ed.1960).
in-
specific
crippled Dictionary
use of invalids and
vices for the
makes
persons; colostomy supplies, insulin and
clusion of the word “extremities”
thereof,
limbs,
any part
are
hypodermic
clear that
supplies,
diabetic
such
(urine
needles,
“bodily structure.”
sugar
included in the term
syringes
blood)
purchased
find a definition for
testing
materials
While we are unable to
structure,”
“bodily
term
the use of
for
use
diabetics.
139.472(2). Rather,
definite article
“the” indicates
to KRS
the Dent-
body
statute refers to the entire
held
that the items
ex-
were
Craft
parts
components
discrete
or
that could be
empt
under the
of the statute that
structure,”
“bodily
e.g.,
considered a
limbs,
exempted
“sales
artifi-
words,
In
person
mouth.
other
a
who
equipment
cial
other
worn as a
dentures, crowns, bridges
needs
or braces
any
correction or
functioning
substitute for
his or her
“crippled”
teeth is not
within
portion
body
....”
Id. at 716. KRS
of the statute.
139.472(2)
similar section which ex-
empts
eyes,
“artificial
hear-
support
We find
our
construction of
ing
prescribed by
physician,
aids
a licensed
Supreme
the statute in the Connecticut
individually designed,
or
constructed or al-
Court’s construction of a similar
solely
particular
tered
for the
use
Conn.,
Laboratories
Inc.
Dent-Craft
*4
person.”
important
disabled
differ-
Sullivan,
Commissioner,
Tax
148 Conn.
ence between the
(1961).
two sections is
Con-
struction. “crippled,” determine the
To majority quotes two-part dictionary cripple.” “to Yet the
definition verb upon then first
majority only relies
part of the definition and fails to even acknowledge part-, which second COLWELL, Appellant, Ronnie deprive capability
follows: for ser- “[T]o vice, efficiency, According or wholeness.” definition, to this teeth one without or with KENTUCKY, OF COMMONWEALTH crippled, teeth defective would be as such Appellee, would person deprived ability be digest effectively to eat and food and effi- ciently, might unable speak also be *5 Dashielle, Appellant, Dale This, if to coherently. rely we are on definitions, dictionary the whole definition applied just than por- should be rather Appellee. Kentucky, Commonwealth
tion of it. 1998-SC-1071-MR, No. aside, Dictionary definitions the tenor 1999-SC-0095-TG. purpose of leaves the statute no doubt Kentucky. Supreme mind that Court my applies pros- it to dental thetics. statute refers items indi- Dec. 2000. vidually designed particular person for a that “substitute for the structure.” 22, 2001. Rehearing Denied March teeth, There can be no doubt false braces,
bridges, fall crowns into this Moreover,
category. no there is reason
logic prosthetic to exclude such devices. think of no
can rational basis allow the exemption
tax for artificial aids, hearing
eyes, and other items deny exemption pros-
thetic dental devices. a distinction While
might be made artificial limbs neces- ambulation,
sary for serve
only purpose, hearing a cosmetic and while undoubtedly important,
aids are I doubt they universally regard-
whether would be important
ed as more than artificial dental
devices. analyze not the
It is role of tax legislation
the wisdom creates
exemptions, yet legislature when impose arti-
spoken, this Court should not Rather, limitations the Act. we
ficial on