Hennage Creative Printers, Inc. v. Department of Taxation

By JUDGE DONALD H. KENT This matter came before the Court upon summary judgment motions filed by both the plaintiff and the defendant. The parties have agreed that the Court would decide the case without hearing testimony. The only dispute as to evidence concerns two affidavits filed by the plaintiff. The Court finds that it is not proper to consider an affidavit in support of a motion for summary judgment, therefore, the affidavits will not be considered. The Court, having reviewed the pleadings and submissions of both parties, finds that the transactions described in the stipulation are exempt from taxation under Section 58.1-608(20) of the Code and Department of Taxation Regulation § 630-10-51 and their predecessors. The State seeks to have the court impose a requirement that delivery be to the buyer outside the Commonwealth. No such requirement exists in either the Virginia statute nor in the State’s own regulation. It would not be proper for the Court to re-write the statute or regulation. The cases cited by the defendant in support of their position are not on point since they concern statutes which are entirely different from ours. Mr. Costello should prepare an order directing the defendant to refund the erroneously assessed tax with interest as allowed by law.