{ "id": 8318957, "name": "MORTON BUILDINGS, INC., Petitioner-Appellant v. E. NORRIS TOLSON, SECRETARY OF REVENUE, STATE OF NORTH CAROLINA, AND HIS SUCCESSORS, Respondent-Appellee", "name_abbreviation": "Morton Buildings, Inc. v. Tolson", "decision_date": "2005-08-02", "docket_number": "No. COA04-1053", "first_page": "119", "last_page": "127", "citations": [ { "type": "official", "cite": "172 N.C. App. 119" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "515 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "350 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132176 ], "year": 1999, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0449-01" ] }, { "cite": "210 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1974, "pin_cites": [ { "page": "205", "parenthetical": "concluding that Clayton-Marcus Co. had \"manufactured\" swatch books because they were \"new and different article[s] from the fabrics . . . contained therein\"" }, { "page": "203" }, { "page": "219" }, { "page": "202-03" } ], "opinion_index": 0 }, { "cite": "286 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564966 ], "year": 1974, "pin_cites": [ { "page": "224", "parenthetical": "concluding that Clayton-Marcus Co. had \"manufactured\" swatch books because they were \"new and different article[s] from the fabrics . . . contained therein\"" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0215-01" ] }, { "cite": "705 A.2d 1384", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 688157 ], "year": 1997, "pin_cites": [ { "page": "1388" } ], "opinion_index": 0, "case_paths": [ "/vt/167/0371-01" ] }, { "cite": "207 U.S. 556", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3639880 ], "weight": 4, "year": 1908, "pin_cites": [ { "page": "562", "parenthetical": "\"A cork put through the claimant's process [of preparing the encasement of the beer] is still a cork.\"" }, { "page": "338", "parenthetical": "\"A cork put through the claimant's process [of preparing the encasement of the beer] is still a cork.\"" }, { "page": "562" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/us/207/0556-01" ] }, { "cite": "10 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "650", "parenthetical": "stating \"whether [particular] acts constituted the 'manufacture or production of lumber' was a question of law for the court to decide\"" } ], "opinion_index": 0 }, { "cite": "218 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615766 ], "year": 1940, "pin_cites": [ { "page": "193", "parenthetical": "stating \"whether [particular] acts constituted the 'manufacture or production of lumber' was a question of law for the court to decide\"" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0184-01" ] }, { "cite": "118 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "254 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625318 ], "year": 1961, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0204-01" ] }, { "cite": "254 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568074, 8568044, 8568013, 8567990, 8567963 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0179-05", "/nc/297/0179-04", "/nc/297/0179-03", "/nc/297/0179-02", "/nc/297/0179-01" ] }, { "cite": "250 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "683" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553020 ], "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0470-01" ] }, { "cite": "164 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "295" } ], "opinion_index": 0 }, { "cite": "274 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560794 ], "year": 1968, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0505-01" ] }, { "cite": "87 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "910-11" } ], "opinion_index": 0 }, { "cite": "242 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617056 ], "year": 1955, "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0486-01" ] }, { "cite": "166 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "275 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558315 ], "year": 1969, "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0215-01" ] }, { "cite": "209 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "756", "parenthetical": "quoting 7 Strong, N.C. Index 2d Statutes \u00a7 5 (1968)" } ], "opinion_index": 0 }, { "cite": "286 N.C. 148", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563921 ], "year": 1974, "pin_cites": [ { "page": "152", "parenthetical": "quoting 7 Strong, N.C. Index 2d Statutes \u00a7 5 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0148-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-164.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(46)" } ], "opinion_index": 0 }, { "cite": "564 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220106, 220010, 220045, 219924, 220085 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0493-04", "/nc/355/0493-01", "/nc/355/0493-05", "/nc/355/0493-02", "/nc/355/0493-03" ] }, { "cite": "560 S.E.2d 163", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9367616 ], "year": 2002, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0610-01" ] }, { "cite": "582 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491584, 491789, 491662, 491790, 491411, 491804, 491478, 491836, 491807 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0252-02", "/nc/357/0252-09", "/nc/357/0252-07", "/nc/357/0252-04", "/nc/357/0252-03", "/nc/357/0252-08", "/nc/357/0252-06", "/nc/357/0252-05", "/nc/357/0252-01" ] }, { "cite": "483 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "392" } ], "opinion_index": 0 }, { "cite": "345 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53839 ], "year": 1997, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0699-01" ] }, { "cite": "573 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "770", "parenthetical": "citing ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251107 ], "year": 2002, "pin_cites": [ { "page": "572", "parenthetical": "citing ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0568-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-164.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-241.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-241.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-266.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 833, "char_count": 19541, "ocr_confidence": 0.746, "pagerank": { "raw": 1.9018758599144845e-07, "percentile": 0.7303894937504078 }, "sha256": "c08a90858d078280754403f073a963e581d2d714f97ef9357e64aeeac13eb051", "simhash": "1:8eebc32f7776b918", "word_count": 3108 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and STEELMAN concur." ], "parties": [ "MORTON BUILDINGS, INC., Petitioner-Appellant v. E. NORRIS TOLSON, SECRETARY OF REVENUE, STATE OF NORTH CAROLINA, AND HIS SUCCESSORS, Respondent-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nMorton Buildings, Inc. (petitioner) is a construction contractor in the business of producing, selling, and erecting prefabricated warehouses and other buildings for use on farms and in industry in forty states. Petitioner seeks a tax refund for the sales and use tax it paid on lumber, steel, and other materials (collectively materials) purchased out of state. These materials were assembled into trusses, columns, purlins, and metal panels (collectively building components) in Pennsylvania and Ohio. The building components were incorporated into buildings constructed in North Carolina.\nPetitioner purchased and stored the materials outside of North Carolina. The materials were not purchased by petitioner for use in any particular customer order, whether in or out of North Carolina.\nPursuant to N.C. Gen. Stat. \u00a7 105-266.1, petitioner filed an application with the North Carolina Department of Revenue (the Depart-merit of Revenue) on 18 December 1996 for a refund of use tax paid, plus interest, for the period of 1 November 1993 to 30 June 1996. Petitioner subsequently filed another application for the period of 1 January 1997 to 31 August 1999. The Department of Revenue denied petitioner\u2019s second refund request on 3 February 2000 and denied the first request on 31 January 2001.\nPetitioner requested and received an administrative hearing by the Secretary of Revenue (respondent), who denied petitioner\u2019s requests for refunds in a final decision dated 24 May 2002. Petitioner appealed this final decision to the Tax Review Board pursuant to N.C. Gen. Stat. \u00a7 105-241.2. The Tax Review Board sustained respondent\u2019s denial of petitioner\u2019s requests for refunds and confirmed respondent\u2019s final decision on 18 March 2003.\nPetitioner petitioned for judicial review of the Tax Review Board\u2019s decision on 14 April 2003, pursuant to N.C. Gen. Stat. \u00a7 105-241.3. Petitioner argued that both respondent and the Tax Review Board erred in the interpretation and application of N.C. Gen. Stat. \u00a7 105-164.6. As statutory interpretation is an issue of law, the trial court reviewed the decision de novo, and affirmed the Tax Review Board\u2019s decision on 14 April 2004. Petitioner appeals.\nPetitioner\u2019s sole assignment of error is that the trial court erred in failing to give effect to the plain language of N.C.G.S. \u00a7 105-164.6, which governs the imposition of use tax. In reviewing an order from a trial court acting in an appellate capacity, our scope of review is restricted to evaluating the trial court\u2019s order for errors of law. Shackleford-Moten v. Lenoir Cty. DSS, 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002) (citing ACT-UP Triangle v. Commission for Health Services, 345 N.C. 699, 706, 483 S.E.2d 388, 392 (1997)), disc. review denied, 357 N.C. 252, 582 S.E.2d 609 (2003). \u201cIn those cases where the superior court [was] required to employ a de novo standard of review of the agency\u2019s decision, appellate review of the superior court\u2019s order requires that this Court also review the agency\u2019s decision de novo.\u201d R.J. Reynolds Tobacco Co. v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 148 N.C. App. 610, 615, 560 S.E.2d 163, 167, disc. review denied, 355 N.C. 493, 564 S.E.2d 44 (2002). The trial court employed a de novo review in the present case, and petitioner raises questions of law; therefore, we review the trial court\u2019s judgment de novo.\nPetitioner first argues that the use tax does not apply to petitioner\u2019s materials or building components, and the trial court erred by ignoring the plain language of the sales and use tax statute. We disagree. N.C. Gen. Stat. \u00a7 105-164.6(b) provides:\nAn excise tax at the general rate of tax set in G.S. 105-164.4 is imposed on the purchase price of tangible personal property purchased inside or outside the State that becomes a part of a building or other structure in the State. The purchaser of the property is liable for the tax.\nN.C.G.S. \u00a7 105-164.6(b) (2003). Tangible personal property is defined as \u201c[p]ersonal property that may be seen, weighed, measured, felt, or touched or is in any other manner perceptible to the senses.\u201d N.C. Gen. Stat. \u00a7 105-164.3(46) (2003). Petitioner does not dispute that it purchased materials, nor that the materials petitioner purchased were tangible personal property. Rather, petitioner argues that the materials did not become \u201cpart of a building or other structure in the State.\u201d See N.C.G.S. \u00a7 105-164.6(b). Petitioner further argues that the materials were \u201cconsumed\u201d and \u201ctransformed\u201d into building components outside of North Carolina, and thus it was the building components that became \u201cpart of a building or other structure in the State.\u201d See id. Inherent to petitioner\u2019s argument is its belief that the statute only taxes items of tangible personal property that are used \u201cin the form in which they were purchased[.]\u201d Specifically, petitioner asserts that the materials \u201ccease to exist upon their consumption and transformation in the manufacture of building components[.]\u201d Thus, petitioner argues that since it did not purchase the building components, and since the materials purchased by petitioner were not incorporated into a building or structure in their unaltered state, petitioner is not subject to the excise tax set forth in N.C.G.S. \u00a7 105-164.6(b).\nHowever, since the plain language of the statute is clear and unambiguous, we are unpersuaded by petitioner\u2019s arguments. \u201c \u2018Where the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein.\u2019 \u201d State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974) (quoting 7 Strong, N.C. Index 2d Statutes \u00a7 5 (1968)) (emphasis added). Contrary to petitioner\u2019s argument, the statute does not contain the limitation that the tangible personal property must be \u201cin the form in which [it was] purchased\u201d to be taxable. We do not agree with petitioner that the materials \u201ccease to exist\u201d when they are assembled into trusses, columns, purlins, and metal panels. However, even assuming arguendo that the materials \u201ccease to exist\u201d when they become part of the building components, the materials as incorporated into building components are still tangible personal property. Therefore, the statute applies to the materials purchased by petitioner because the materials, which are tangible personal property, became \u201cpart of a building or other structure in the State.\u201d See N.C.G.S. \u00a7 105-164.6(b).\nTo hold otherwise would violate the purpose of the use tax. Our Supreme Court has held that the General Assembly intended for the use tax \u201cto impose the same burdens on out-of-state purchases as the sales tax imposes on purchases within the state.\u201d Pipeline Co. v. Clayton, Comr. of Revenue, 275 N.C. 215, 223, 166 S.E.2d 671, 677 (1969); see also Robinson & Hale, Inc. v. Shaw, Comr. of Revenue, 242 N.C. 486, 488, 87 S.E.2d 909, 910-11 (1955) (discussing the predecessor statute to N.C.G.S. \u00a7 105-164.6 and stating the statute \u201cdiscloses a clear legislative intent to make out-of-state purchases of building materials, other than those expressly exempted, subject to the same burdens imposed by the sales tax on purchases within the State\u201d). In the present case, the trial court properly concluded that \u201c[t]he Legislature enacted the use tax so that builders could not gain an advantage by purchasing materials outside the state. The law thus requires that [petitioner] pay tax on all tangible materials, wherever purchased, which are ultimately used in North Carolina buildings.\u201d We affirm the decision of the trial court.\nPetitioner also argues that it is exempt from the use tax imposed under section (a) of N.C.G.S. \u00a7 105-164.6, which provides: \u201cAn excise tax... is imposed on the storage, use, or consumption in this State of tangible personal property purchased inside or outside the State for storage, use, or consumption in the State[.]\u201d Specifically, petitioner argues that section (a) does not apply because petitioner\u2019s raw materials are not stored, used, or consumed in North Carolina. Petitioner contends that while it purchased the raw materials, the raw materials are not only stored outside North Carolina, but that they are \u201cused,\u201d \u201cconsumed,\u201d and \u201ctransformed\u201d into building components outside of North Carolina. Petitioner asserts that \u201c[i]t is the [b]uilding [c]omponents, a manufactured product distinct from the [r]aw [materials, that are brought into the State.\u201d\nSince the use taxes in sections (a) and (b) of N.C.G.S. \u00a7 105-164.6 are alternative stand alone provisions, and since petitioner is subject to the use tax in section (b) of N.C.G.S. \u00a7 105-164.6, we need not review petitioner\u2019s argument that it is not subject to the use tax set forth in section (a). Nevertheless, we note that petitioner is also subject to the use tax under section (a) because the materials purchased by petitioner were used in North Carolina. \u201cUse\u201d is defined by N.C.G.S. \u00a7 105-164.3(49) (2003) as including:\nthe exercise of any right or power or dominion whatsoever over tangible personal property by a purchaser thereof and [including, but not limited to] any withdrawal from storage, distribution, installation, affixation to real or personal property, or exhaustion or consumption of tangible personal property by the owner or purchaser thereof, but does not include the sale of tangible personal property in the regular course of business.\nBy incorporating the lumber and other materials petitioner purchased into the buildings petitioner constructed in North Carolina, petitioner exercised a right, power, and dominion over, and therefore used the lumber and other materials. Petitioner is subject to the use tax under both sections (a) and (b) of N.C.G.S. \u00a7 105-164.6.\nPetitioner next argues that the trial court erroneously ignored stipulated facts. Specifically, petitioner argues that the trial court erred in failing to distinguish between materials and building components when the parties stipulated that the materials were \u201cconsumed and transformed by [petitioner] in the manufacture of finished [b]uilding [c]omponents[.]\u201d Petitioner asserts that because N.C.G.S. \u00a7 105-164.6 only applies to tangible personal property that is purchased, the trial court erred when, despite \u201c[n]umerous references to \u2018manufacturing processes\u2019 or \u2018manufacture\u2019 \u201d throughout the stipulations, it did not recognize that the building components were not purchased but manufactured.\nIn support of its argument, petitioner cites Duke Power Co. v. Clayton, Comr. of Revenue, 274 N.C. 505, 513, 164 S.E.2d 289, 295 (1968), which states: \u201c \u2018 \u201cmanufacturing\u201d has been defined as the producing of a new article or use or ornament by the application of skill and labor to the raw materials of which it is composed.\u2019 \u201d Id. (quoting 55 C.J.S. Manufactures, \u00a7 1 at 667 and 670 (1948)). Petitioner further argues that, as the parties stipulated, the materials were \u201cconsumed and transformed\u201d into a different tangible personal property, i.e., building components, because skill and labor were applied to the materials \u201cto create a different article with a singular use.\u201d Petitioner further argues that because the lumber and steel it purchased as materials lost their identities when they were manufactured into trusses, purlins, and other building components, the trial court erred in treating both the materials and the building components as the same tangible personal property.\nHowever, petitioner ignores that \u201c[stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate.\u201d State v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (citing 73 Am. Jur. 2d Stipulations \u00a7 5 (1974); 5 Am. Jur. 2d Appeal and Error \u00a7 712 (1962)), disc. review denied, 297 N.C. 179, 254 S.E.2d 38 (1979); see also Carringer v. Alverson, 254 N.C. 204, 208, 118 S.E.2d 408, 411 (1961). Whether the materials purchased by petitioner were \u201cmanufactured\u201d into building components is a question of law. Hart v. Gregory, 218 N.C. 184, 193, 10 S.E.2d 644, 650 (1940) (stating \u201cwhether [particular] acts constituted the \u2018manufacture or production of lumber\u2019 was a question of law for the court to decide\u201d). Similarly, whether the materials were \u201cconsumed and transformed\u201d is a question of law, and the parties\u2019 stipulations as to these words are not binding on the trial court or our Court.\n\u201cManufacture implies a change, but every change is not manufacture, but every change in an article is the result of treatment, labor, and manipulation. But something more is necessaryf.] ... There must be transformation; a new and different article must emerge, having a distinctive name, character or use.\u201d Anheuser-Busch Brewing Ass\u2019n v. United States, 207 U.S. 556, 562, 52 L. Ed. 336, 338 (1908) (\u201cA cork put through the claimant\u2019s process [of preparing the encasement of the beer] is still a cork.\u201d). Though petitioner claims that it transforms the lumber, steel and other materials into a different article by a different name, that being \u201cbuilding components,\u201d we are not persuaded that these building components have a distinct character or use. As the trial court found, petitioner constructs trusses in the following manner:\n[T]he lumber for the upper and lower chords of the truss are run through a machine that cuts the chords to the proper lengths and to the proper angles at both ends of each board. Lumber webbing, which is attached between the upper and lower chords, is also cut to the correct length and to the correct angles. The boards for the trusses (chords and webs) are then positioned \u201cface-up\u201d on a fixture table and metal gusset plates are positioned at each joint. The metal gusset plates are made by [petitioner] from rolled steel. The gusset plates are then stitched into position with a pneumatic gun nailer. The truss is then repositioned \u201cface-down\u201d and additional metal gusset plates are positioned onto the joints on that side of the truss. The truss is then put through a roller press which imbeds the metal gusset plates into the wooden chords and webs.\nThe above rudimentary process may change the form of the materials purchased by petitioner, but it is difficult to discern how the building components are a different article with a \u201cdistinctive . . . character and use.\u201d See Anheuser-Busch Brewing Ass\u2019n, 207 U.S. at 562, 52 L. Ed. at 338; see also Morton Bldgs. v. Vermont Dep\u2019t of Taxes, 705 A.2d 1384, 1388 (1997). Cf. In re Clayton-Marcus Co., 286 N.C. 215, 224, 210 S.E.2d 199, 205 (1974) (concluding that Clayton-Marcus Co. had \u201cmanufactured\u201d swatch books because they were \u201cnew and different article[s] from the fabrics . . . contained therein\u201d). The trial court did not err in noting that although the parties had stipulated to the word \u201cmanufacture,\u201d the term \u201cassembly\u201d was more descriptive.\nSimilarly, although the parties stipulated that the materials purchased by petitioner were \u201cconsumed\u201d in petitioner\u2019s manufacture process, the trial court did not err in concluding that the materials \u201cwere not \u2018consumed\u2019 in the way the word is normally understood.\u201d If the statute \u201ccontains a definition of a word used therein, that definition controls[.]\u201d Clayton-Marcus Co., 286 N.C. at 219, 210 S.E.2d at 203. However, nothing else appearing, \u201cwords must be given their common and ordinary meaning[.]\u201d Id. at 219, 210 S.E.2d at 202-03. As the Sales and Use Tax Act does not define \u201cconsume,\u201d the trial court properly applied the \u201ccommon and ordinary meaning\u201d of the term. The trial court did not err in noting:\n\u201cConsume\u201d is defined as \u201cto expend or use up,\u201d or \u201cto destroy totally; ravage.\u201d The American Heritage Dictionary of the English Language (4th ed. 2000). The [m] ater\u00edais were not destroyed or expended; they were used by [petitioner] to make [b]uilding [components that were then brought into North Carolina and incorporated into [petitioner\u2019s] buildings.\nAccordingly, we affirm the trial court\u2019s decision as to the questions of law in the parties\u2019 stipulations.\nFinally, petitioner argues that the trial court improperly rejected the weight of authority from other jurisdictions. Petitioner argues that it has \u201cpreviously litigated this very issue in a number of other jurisdictions throughout the United States\u201d and that seven out of ten courts \u201chave rendered final decisions in favor of\u201d petitioner. However, petitioner does not cite any authority for its argument as to why the trial court erred, and this argument is thus abandoned pursuant to N.C.R. App. P. 28(b)(6). Furthermore, while decisions from other jurisdictions may be instructive, they are not binding on the courts of this State. See Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 465, 515 S.E.2d 675, 686 (1999).\nAffirmed.\nJudges HUNTER and STEELMAN concur.\n. We adopt petitioner\u2019s distinction between the terms \u201cmaterials\u201d and \u201cbuilding components\u201d merely for the sake of clarity throughout this opinion. The distinction has no legal basis.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Maupin Taylor, P.A., by Charles B. Neely, Jr., Nancy S. Rendleman, and Kevin W. Benedict; and Law Offices of Abraham Stanger, by Abraham M. Stanger, for petitioner-appellant.", "Attorney General Roy A. Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for respondent-appellee." ], "corrections": "", "head_matter": "MORTON BUILDINGS, INC., Petitioner-Appellant v. E. NORRIS TOLSON, SECRETARY OF REVENUE, STATE OF NORTH CAROLINA, AND HIS SUCCESSORS, Respondent-Appellee\nNo. COA04-1053\n(Filed 2 August 2005)\nTaxation\u2014 refund of sales and use tax \u2014 lumber, steel, and materials purchased out of state\nA de novo review revealed that the trial court did not err by denying petitioner\u2019s request under N.C.G.S. \u00a7 105-164.6 for refunds of use tax paid plus interest for lumber, steel, and other materials purchased out of state and assembled in Pennsylvania and Ohio into building components which were incorporated into prefabricated buildings constructed by petitioner in North Carolina, because: (1) contrary to petitioner\u2019s argument, the statute does not contain the limitation that the tangible personal property must be in the form in which it was purchased to be taxable; (2) even assuming arguendo that the materials cease to exist when they become part of the building components, the materials as incorporated into building components are still tangible personal property; (3) the Legislature enacted the use tax so that builders could not gain an advantage by purchasing materials outside the state, and the law thus requires that petitioner pay tax on all tangible materials, wherever purchased, which are ultimately used in North Carolina buildings; (4) although the use taxes in sections (a) and (b) of N.C.G.S. \u00a7 105-164.6 are alternative stand alone provisions and petitioner has already been held to be subject to the use tax in section (b), the Court of Appeals nevertheless noted that petitioner would also be subject to the use tax under section (a) since the materials purchased by petitioner were used in North Carolina; (5) contrary to petitioner\u2019s assertion, stipulations as to questions of law are generally held invalid and ineffective, and not binding upon the courts, either trial or appellate; and (6) while decisions from other jurisdictions may be instructive, they are not binding on the courts of this State.\nAppeal by petitioner from judgment dated 14 April 2004 by Judge Wade Barber in Superior Court, Wake County. Heard in the Court of Appeals 23 March 2005.\nMaupin Taylor, P.A., by Charles B. Neely, Jr., Nancy S. Rendleman, and Kevin W. Benedict; and Law Offices of Abraham Stanger, by Abraham M. Stanger, for petitioner-appellant.\nAttorney General Roy A. Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for respondent-appellee." }, "file_name": "0119-01", "first_page_order": 149, "last_page_order": 157 }