American National Can Co. v. Tracy

Per Curiam. The seminal question as to the taxability of the machine hoppers turns on whether this equipment constitutes an “adjunct” to direct use during the manufacturing or processing period and therefore is exempt from taxation under R.C. 5739.01(E)(2) and 5739.01(R). In Ball Corp. v. Limbach (1992), 62 Ohio St.3d 474, 478, 584 N.E.2d 679, 682, we quoted Canton Malleable Iron Co. v. Porterfield (1972), 30 Ohio St.2d 163, 170, 59 O.O.2d 178, 181-182, 283 N.E.2d 434, 439: “ ‘[Manufacturing and processing “ ‘ * * * imply essentially a transformation or conversion of material or things into a different state or form from that in which they originally existed — the actual operation incident to changing them into marketable products.’ ” * * * ’ ” We said in Ball, as we say here, that the manufacturer “did not sell” the raw material or “regrind pellets; it sold bottles in partitioned cartons.” Id. “The test for determining the exemption from taxation of equipment by reason of its status as adjunct under former R.C. 5739.01(S), later codified at (R), is * * * ‘ “that the thing sought to be excepted from taxation be (1) an adjunct, (2) used at the same location, and (3) used after the transformation or conversion has commenced. Subsection (E)(2) adds the additional requirement that the thing be adjunct to direct use or consumption.” * * * (Emphasis sic.) Id. at 478, 584 N.E.2d at 682-683. [152] A fact pattern strikingly similar to Ball exists here. Raw material is maintained at locations near the extruders. The actual manufacturing or processing of Am-Nat’s product occurs in the extruder when the form or state of the raw material is changed, ultimately resulting in the saleable product. The machine hoppers that hold the raw material are preliminary to manufacturing and are, thus, not adjuncts, and are subject to tax. Thus, we reverse the decision of the BTA as to the machine hoppers. Regarding the case erectors, Am-Nat’s attempt to extend the scope of the exemption for material used in packaging tangible personal property produced for sale cannot succeed. “We agree with the commissioner’s construction of R.C. 5739.02(B)(15). To be excepted from taxation * * * equipment must be used in placing tangible personal property produced for sale in packages.” Hawthorn Mellody, Inc. v. Lindley (1981), 65 Ohio St.2d 47, 52, 19 O.O.3d 234, 238, 417 N.E.2d 1257, 1261. Am-Nat concedes that the actual placing of the finished product in the shipping containers is done manually. In Ball, “[t]he Tax Commissioner contested] the exception of the * * * carton-forming system * * *. R.C. 5739.02(B)(15) provides an exception for machinery and equipment used in ‘packaging.’ She urge[d] that exception be denied because only machinery and equipment used ‘in placing the item for sale in the packages’ qualifies. She contended] that the BTA erred in extending the exception to machinery or equipment which is neither packaging machinery or equipment, nor an integral part of packaging machinery or equipment.” Id. at 479, 584 N.E.2d at 683. The court held that “Exceptions from taxation are to be strictly construed” and that “ ‘[t]o be excepted from taxation under R.C. 5739.02(B)(15), machinery or equipment must be used in placing tangible personal property produced for sale in packages.’ ” Id. Thus, we reverse the BTA’s decision as to the case erectors. Although there is a factual dispute regarding the function of Am-Nat’s water cooling system, and even as to the number of water cooling systems Am-Nat uses, the BTA found as a fact that “ * * * the system should be looked at as a whole, and due to its adjunctive use, not assessed tax. The two systems work essentially as a single system to accomplish the manufacturing function of cooling equipment during processing.” The BTA is responsible for determining factual issues and, if the record contains reliable and probative support for these BTA determinations, we will affirm. R.R.Z. Assoc. v. Cuyahoga Cty. Bd. of Revision (1988), 38 Ohio St.3d 198, 201, 527 N.E.2d 874, 877. Since the record contains such evidence, we affirm the BTA’s decision as to the water cooling system. Finally, regarding the electrical transforming substation, the commissioner contests only the taxability of the transformer. The test for exemption is to [153] determine whether the transformer is a structure attached to the land. R.C. 5739.01(B)(5). If it is attached, it becomes real property and is exempt from sales and use taxes; if it is not attached, it remains personal property subject to taxation. To qualify for exemption under R.C. 5739.01(B)(5), the transformer must be “ ‘incorporated into a structure or improvement on and becoming a part of real property.’ ” See Rotek, Inc. v. Limbach (1990), 50 Ohio St.3d 81, 82, 552 N.E.2d 640, 641. As defined in R.C. 5701.02, “real property” “include[s] land itself * * * and unless otherwise specified, all buildings, structures, improvements, and fixtures of whatever kind on the land.” “[T]he term ‘incorporation,’ as used in R.C. 5739.02(B)(13), requires physical affixation to the relevant improvement. * * * We perceive no basis for excluding such requirement from the term ‘incorporated’ as used in the construction contract provision found in R.C. 5739.01(B).” Botkins Grain & Feed Co. v. Lindley (1982), 1 Ohio St.3d 64, 68, 1 OBR 105, 108, 437 N.E.2d 1182, 1185-1186. The record shows that this transformer, a large piece of equipment, was neither bolted nor otherwise affixed to the concrete slab upon which it rested. Am-Nat admits that it could be moved with a crane. It was, therefore, freestanding and not a structure or part of real property. The BTA’s failure to find that the transformer was not incorporated into the real property was unreasonable and unlawful, and its decision in this respect is reversed. The decision of the BTA is affirmed in part and reversed in part. Decision affirmed in part and reversed in part. Moyer, C.J., Douglas, Resnick, F.E. Sweeney and Cook JJ., concur. Wright and Pfeifer, JJ., concur in part and dissent in part.