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Wisconsin Tax Appeals Commission
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STATE OF WISCONSIN | TAX APPEALS COMMISSION |
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JOHN TAYLOR GOLF, INC., d/b/a THE BOG 9611 N. Columbia Drive Mequon, WI 53092 Petitioner, vs. WISCONSIN DEPARTMENT OF REVENUE P.O. Box 8907 Madison, WI 53708 Respondent. |
DOCKET NO. 98-S-193
DECISION AND ORDER |
MARK E. MUSOLF, CHAIRPERSON:
This matter was heard at Milwaukee on October 14 and 15, 1999. Attorneys John R. Austin and Margaret M. Derus represent the petitioner. Attorney Robert C. Stellick, Jr., represents the respondent.
Having considered the entire record, the Commission hereby finds, concludes, and orders as follows:
FINDINGS OF FACT
1. John Taylor Golf, Inc., d/b/a The Bog ("petitioner"), was audited by the Wisconsin Department of Revenue ("the Department") for the years 1993 through 1996 ("the period under review") for sales and use tax.(1)
2. Pursuant to a Notice of Amount Due dated October 31, 1997, the Department assessed petitioner additional sales and use taxes, interest, and late filing fees in the amount of $77,974.62.
3. The Department assessed petitioner pursuant to Wis. Stat. §§ 77.53(2) and (12) and 77.52(2)(a)20 for use taxes on purchases of tangible personal property and services, including landscaping.
4. The Department determined the following items, totaling $505,000 (64.3%) of petitioner's $785,000 construction contract with Golf Course Consultants ("GCC"), to be taxable landscaping activities:
Silt Fencing $ 25,000
Greens, Tee, Bunker Construction 150,000
Finish Grading, Rock Wall Construction 135,000
Seedbed Preparation 90,000
Seeding and Sodding 105,000
These are the only items of dispute between the parties in this appeal.(2) The auditor relied primarily on the Department's Publication 210 (May 1994) in determining what activities were taxable.
5. The same percentage (64.3%) was then applied to petitioner's $500,000 design contract with Palmer Course Design Company ("Palmer"), resulting in tax imposed on $826,655 of landscaping services in the construction and design of The Bog.(3)
6. Petitioner timely filed a petition for redetermination with the Department, which was denied by a Notice of Action dated June 15, 1998.
7. Petitioner timely filed a petition for review with the Tax Appeals Commission.
8. Petitioner's principal business activities included the development, design, construction, and subsequent operation of "The Bog" golf course ("The Bog," "the course," or "the golf course.") K. Terrence Wakefield ("Mr. Wakefield") was petitioner's president and majority shareholder.
9. Petitioner purchased approximately 297 acres of land on which the golf course is located, adjacent to the Cedarburg Bog, in Saukville, Ozaukee County, Wisconsin.
10. Petitioner contracted with a number of companies to assist in the design, development, and construction of the golf course, clubhouse, parking lot, and other amenities.
11. Petitioner contracted with Palmer for the primary design of the golf course. Palmer's lump sum contract provided that petitioner would pay Palmer $500,000 for "architectural and design" services, which included: preparation of preliminary and final land use plans such as course routing, site location for the clubhouse, maintenance area, practice facilities, and related amenities, including cost estimates; participation in zoning meetings; preparation of construction plans and specifications for all features of the golf course, including tees, fairways, roughs, greens, mounds, swales, bunkers, grading cut and fill calculations, grassing and/or seeding plans, and plans for irrigation systems; and preparation of bid documents, including preparation of bid packages, evaluation of bids, selection of contractors, construction scheduling and programming for the 18 holes, and assistance in administration of the course construction. Palmer also was required to: inspect and monitor the construction work; coordinate with the landscape architect in the location of trees for strategic and aesthetic purposes, rain and comfort stations, water fountains, and other amenities; perform various inspections; coordinate with the construction manager to ensure timely construction; and approve construction bills.
12. Palmer prepared drawings depicting the master plan for the golf course, the features of each golf hole, including the greens complex, and the practice facility. The detail drawings included information regarding tee boxes, grade elevations, locations of fairways, bunkers, hazards, native areas, greens, cart paths, bridges, retaining walls, and natural elements adjacent to the specific golf hole.
13. Petitioner contracted with GCC and others for the construction of the golf course. The contract with GCC stated that it would supply all the necessary equipment, skilled equipment operators, and laborers required to construct the golf course. GCC also provided project superintendents, assisted in supervising and sequencing all other contractors, and various on-site management services.
14. GCC's contract provided a schedule of additional services and related prices.
15. Petitioner contracted with Burkhart Construction Company ("Burkhart") for the on-site supervision of GCC, general consulting with respect to engineering and construction issues, and management and supervision of the construction process. In addition, Burkhart was paid $30,500 for installation of silt fencing.
16. Petitioner contracted with Hawks Nursery for the purchase and installation of $50,000 of various trees and paid the applicable sales tax. Mr. Wakefield, Palmer, and Burkhart determined the sites for planting these trees. The taxability of products and services provided by Hawks Nursery as landscaping services is not in dispute.
17. Petitioner contracted with David J. Frank Landscape Contractor ("Frank Landscape") for services which included the development of a landscape plan for, and the purchase and planting of grasses, flowers, shrubs, and trees in or near, areas adjacent to the clubhouse. Frank Landscape also installed lighting (at the golf course entryway), drain tiles, wood mulch, wood chips, practice area steps, and irrigation around the clubhouse. Petitioner paid sales tax on the items Frank Landscape designated as subject to sales tax on its invoices. The taxability of products and services provided by Frank Landscape, including the landscape plan developed by Frank Landscape, are not in dispute.
18. Petitioner also contracted with Bruce Landscaping Company, Western Contractors, and Robert Weyker for other construction services.
19. During the design of the golf course, petitioner obtained permits from various state (Wisconsin Department of Natural Resources) and local (Town of Saukville) government agencies.
20. Construction of The Bog changed and modified the natural features of the land and ornamented the natural landscape by altering the plant cover to incorporate the various golf course features, including tee boxes, fairways, roughs, greens, mounds, swales, bunkers, and cart paths.
21. Features of the golf course were designed into the course by Palmer based on strategies of the golf game and the playability of the golf course. In addition, like other golf courses designed by Palmer, The Bog was designed to appear natural and beautiful, emulating the original roots of golf.
22. The design of a tee box (including whether the tee box is elevated or cut into an existing grade) depends on the location and visibility of the desired landing area of the tee shot, including the number and location of tee boxes behind the tee box in question.
23. Fairways directed the player's intended line of play through the incorporation of landing areas (desired location of golfer's shots), hazards, and slopes.
24. Hazards are designed into the course to direct the player to the intended line of play and to penalize the player for taking a different path to the green.
25. Greens surrounding the hole were designed as a complex maze of natural-appearing undulations (hills or valleys) and slopes that add to the playability factor of the entire course.
26. Because of the topography and physical characteristics of the natural landscape, irrigation and drainage elements were added to almost every element of the golf course, including the tee boxes, fairways, bunkers, sand traps, and greens.
27. Detention ponds and irrigation reservoirs were also designed by Palmer and constructed by GCC. These elements were incorporated into the overall design of the golf course to ensure playability under adverse weather conditions.
28. At the beginning of the October 14-15, 1999 hearing, the parties stipulated in writing that one principal issue to be decided by the Commission is:
What activities with respect to the design, development and construction of The BOG golf course, if any, constitute either landscaping or lawn maintenance service subject to sales and use taxes pursuant to Section 77.52(2)(a)20, Wis. Stats. Landscaping or lawn maintenance services in the clubhouse, parking or entrance areas are not at issue here.
The parties further stipulated that they would address themselves to the costs of the various activities to be assessed, based on the Commission's "final determination as to the classification of the subject activities."
APPLICABLE STATUTES
77.52 Imposition of retail sales tax.
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(2) For the privilege of selling, performing or furnishing the services described under par. (a) at retail in this state to consumers or users, a tax is imposed upon all persons selling, performing or furnishing the services at the rate of 5% of the gross receipts from the sale, performance or furnishing of the services.
(a) The tax imposed herein applies to the following types of services:
* * *
20. The sale of landscaping and lawn maintenance services including landscape planning and counseling, lawn and garden services such as planting, mowing, spraying and fertilizing and shrub and tree services.
77.53 Imposition of use tax.
(1) Except as provided in sub. (1m), an excise tax is levied and imposed on the use or consumption in this state of taxable services under s. 77.52 purchased from any retailer, at the rate of 5% of the sales price of those services; ...
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(2) Every person storing, using or otherwise consuming in this state tangible personal property or taxable services purchased from a retailer is liable for the tax imposed by this section. The person's liability is not extinguished until the tax has been paid to this state, but a receipt with the tax separately stated from a retailer engaged in business in this state or from a retailer who is authorized by the department, under such rules as it prescribes, to collect the tax and who is regarded as a retailer engaged in business in this state for purposes of the tax imposed by this section given to the purchaser under sub. (3) relieves the purchaser from further liability for the tax to which the receipt refers.
ISSUES INVOLVED
1. Were the services purchased by petitioner and assessed by the Department for the design, development, and construction of The Bog golf course landscaping services within the meaning of Wis. Stat. § 77.52(2)(a)20?
2. If so, did the Department properly assess sales and use tax on all or certain portions of the disputed services as landscaping services under Wis. Stat. § 77.52(2)(a)20?
CONCLUSIONS OF LAW
1. With the exception of silt fencing and rock wall construction, the services purchased by petitioner and assessed by the Department for the design, development, and construction of The Bog golf course were subject to sales and use tax as landscaping services within the meaning of Wis. Stat. § 77.52(2)(a)20.
2. Determination of whether the amounts assessed by the Department for each landscaping item were proper will be made at a subsequent hearing, pursuant to prior stipulation of the parties.
OPINION
We must first determine which of The Bog's disputed design, development, and construction activities, if any, are taxable as landscaping services under § 77.52(2)(a)20 ("the statute").(4)
The burden of showing error in an assessment is on the taxpayer. Woller v. Dept. of Taxation, 35 Wis. 2d 227, 233 (1976). However, because this case involves an imposition statute, any ambiguity must be resolved against respondent. Kearney & Trecker Corp. v. Dep't of Revenue, 91 Wis. 2d 746, 753 (1979).
The essence of the dispute between the parties is what constitutes "landscaping" and "landscape planning and counseling" services, because the statute expressly taxes those services. Because the statute does not define these terms, they must be construed according to common and approved usage, which may be established by resort to dictionary definitions. Swatek v. County of Dane, 192 Wis. 2d 47, 61 (1995).
Landscaping Defined
Webster's New World Dictionary of the American Language, Second College Edition (1976), cited by both parties, defines "landscaping" as:
to change the natural features of (a plot of ground) so as to make it more attractive, as by adding lawns, trees, bushes, etc. to work as a landscape architect or gardener.
The same dictionary defines "landscape architecture" as:
the art or profession of planning or changing the natural scenery of a place for a desired purpose or effect.
It defines "landscape gardening" as:
the art or work of placing or arranging lawns, trees, bushes, etc. on a plot of ground to make it more attractive.
Petitioner maintains that these definitions show that landscaping is a service performed for the purpose of beautifying land or making it more attractive, unlike petitioner's golf course, whose design, development, and construction were related solely to its function and playability rather than making the land more attractive or beautiful.
The Department disagrees, arguing that landscape architecture involves changing the natural scenery "to produce the most attractive or desirable effect" (emphasis added by the Department), with the effect produced in this case being petitioner's golf course. Petitioner counters that only landscaping services are taxed, not all services performed by a landscape architect.
We find more clarity in Webster's Ninth New Collegiate Dictionary (1991), which defines "landscaping" as:
to modify or ornament (a natural landscape) by altering the plant cover
This definition captures all of the elements of the various related New World Dictionary definitions in a single definition: landscaping modifies (changes)or ornaments (beautifies) a natural landscape by altering the plant cover.
This definition limits landscaping to activities involving the alteration of plant cover. Arguably, the definition of landscaping incorporating the definition of landscape architecture in the Webster's New World Dictionary of the American Language (supra, page 10) is not so limited. Without such a limit, however, any change of the natural scenery for a desired purpose could arguably constitute landscaping. Because imposition statutes are to be construed narrowly, we limit the statutory term to activities involving the alteration of plant cover.
Petitioner cites Capital City Tree Experts, Inc. v. Dep't of Revenue, Wis. Tax Rep. (CCH) ¶ 202-874 (WTAC 1987), to argue that the Commission has previously held that the only landscaping services taxable under § 77.52(2)(a)20 are those whose function or primary purpose are for beautification. The Commission's decision in Capital City Tree Experts contains no opinion or discussion of its rationale. Petitioner argues that the Commission's decision was necessarily based upon the analysis of function or primary purpose because one of the Commission's findings was that the service provided by Capital City Tree Experts was not performed for aesthetic purposes.
Petitioner's reliance is misplaced. All but one of the 52 findings in Capital City Tree Experts were stipulated by the parties. We cannot take the recitation of any of these findings by the Commission as an indication of its rationale. These stipulated findings were negotiated by the parties with the expectation that the Commission would apply them to support their respective positions. The parties in Capital City Tree Experts also stipulated to the classifications of different types of tree trimming services in the Standard Industrial Classification Manual. Id. at 13,489. We could just as easily conclude that this classification, and not the primary purpose of the activity, was the basis of the decision. We therefore cannot conclude that the decision was premised on the primary purpose or function of the activity involved.
Landscaping Applied
These definitions make it clear that "landscaping" involves changing the natural landscape by altering the plant cover, whether for beautification or otherwise. We therefore reject petitioner's assertion that landscaping necessarily involves making a plot of ground more attractive.(5) Its common and ordinary meaning is broader.
Therefore, because construction of The Bog involved changing the natural landscape to fairways, roughs, greens, bunkers, and other golf course features with different vegetation, these dictionary definitions lead us to the inescapable conclusion that the design and construction of The Bog involved landscaping services within the meaning of § 77.52(2)(a)20.
However, even if we were to deem beautification and attractiveness a necessary purpose of landscaping, we would find that these qualities were a consideration in the design and construction of The Bog, just as they are in the design and construction of all golf courses. The expert testimony confirms this, as do the learned treatises in the record on golf course design and construction.(6) Indeed, Palmer's own design philosophy states that a golf course must be built to "be truly beautiful." As an example of this precept, Palmer's agreement with petitioner expressly requires Palmer to coordinate with petitioner's landscape architect in the location of specimen tree groupings for both "strategic and aesthetic purposes."
We therefore reject petitioner's contention that the design, development, and construction of The Bog by Palmer and GCC related solely to the function and playability of the golf course rather than making the altered landscape more attractive or beautiful. All of these qualities clearly figured into The Bog's design and construction.
Specific Landscaping Items Assessed
Having concluded that taxable landscaping services were involved in the design, development, and construction of The Bog, we must determine if the Department properly assessed particular activities as landscaping services.
On October 31, 1997, the Department assessed the following GCC construction contract items as taxable landscaping activities:
Silt Fencing $ 25,000
Greens, Tee, Bunker Construction 150,000
Finish Grading, Rock Wall Construction 135,000
Seedbed Preparation 90,000 Seeding and Sodding 105,000
The application of a statute to a particular set of facts is a question of law. Blackhawk Teachers' Federation v. WERC, 109 Wis. 2d 415, 421 (Ct. App. 1982). We will now apply the definition of landscaping to the facts of this case.(7)
SiltFencing. Nothing in the record shows why this item was assessed as landscaping. The fencing showed up nowhere in the photographs entered into evidence, and neither party mentioned it at the hearing or in the briefs. We therefore assume it was never permanently installed.(8) The auditor's notes suggest it was punitively assessed for failure to provide certain information. Based on the record before us, we conclude that the Department improperly assessed this item as landscaping.
Greens, Tees, Bunker Construction. Greens, tee boxes, and bunkers all involve modifying and/or ornamenting the natural landscape by altering the plant cover. Determination of whether the Department properly allocated the cost of landscaping for this item will be made at a subsequent hearing on this matter in accordance with the stipulation of the parties.
Finish Grading, Rock Wall Construction. Final grading prior to seeding or otherwise planting vegetation falls within the definition of landscaping. Ordinarily, the construction of a rock wall would not necessarily fall within the definition of landscaping since rocks are not plant cover. If in further proceedings petitioner demonstrates that the assessment included tax on rock wall construction services, the Commission will modify the assessment to remove those services.
Seedbed Preparation and Seeding and Sodding. Seeding, sodding, and seedbed preparation clearly involve changing the natural landscape by altering the plant cover. It does not appear that allocation of these costs should be an issue unless the parties decide to submit it to the Commission at a subsequent hearing.
The Palmer Design Contract
The above items assessed as landscaping total $505,000, which was 64.3% of petitioner's $785,000 contract with GCC. The Bog was planned and designed by Palmer. We therefore conclude that Palmer's services included landscape planning and counseling within the meaning of § 77.52(2)(a)20. Unless petitioner can show at a subsequent hearing that the Department's allocation method for the $500,000 Palmer design contract was inaccurate or contrary to law, the Commission will accept the Department's allocation as rational and reasonable.
ORDER
1. Respondent's determination that services for the design, development, and construction of The Bog were taxable landscaping services under Wis. Stat. § 77.52(2)(a)20 is affirmed, except for the silt fencing and rock wall construction, subject to the Commission's determination at a subsequent hearing concerning the specific amounts assessed by the Department for each landscaping item.
2. The Commission will contact the parties to schedule further proceedings to resolve issues remaining between the parties.
Dated at Madison, Wisconsin, this 16th day of November, 2000.
WISCONSIN TAX APPEALS COMMISSION
___________________________________________
Mark E. Musolf, Chairperson
___________________________________________
Don M. Millis, Commissioner
___________________________________________
Thomas M. Boykoff, Commissioner
1 All facts pertain to the period under review unless otherwise stated.
2 The petitioner paid sales and/or use tax on personal property and services that are not in dispute here.
3 Petitioner's depreciation schedule showed total course construction costs of over $3.77 million, not including irrigation, cart paths, bridging, various buildings (over $2.5 million for the clubhouse), and other amenities.
4 The parties' stipulation also refers to tax on "lawn maintenance services" under the statute, but neither party has otherwise addressed that language, and we have therefore not considered it.
5 As a practical matter, it is doubtful that those who engage in the landscaping business would remain extant for long unless their work resulted in a somewhat attractive end product, at least from the subjective viewpoint of their customers.
6 Golf Course Design by Robert Graves and Geoffrey Cornish (© 1998 by John Wiley & Sons, Inc.) and The Golf Course: Planning, Design, Construction and Maintenance by F. W. Hawtree (University Press, Cambridge, G. B. 1983).
7 The Department relied primarily on its Publication 210 (May 1994) in determining what activities were taxable. Because the statutory interpretations in Publication 210 have not been promulgated in an administrative rule, they do not necessarily have the force of law. We therefore base our decision on the statutory definition of "landscaping."
8 A "change order" in Exhibit J indicates that silt fence installation was removed from the GCC contract.