{ "id": 4362481, "name": "TECHNOCOM BUSINESS SYSTEMS INCORPORATED, Petitioner v. NORTH CAROLINA DEPARTMENT OF REVENUE, Respondent", "name_abbreviation": "Technocom Business Systems Inc. v. North Carolina Department of Revenue", "decision_date": "2012-02-21", "docket_number": "No. COA11-655", "first_page": "207", "last_page": "213", "citations": [ { "type": "official", "cite": "219 N.C. App. 207" } ], "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": "648 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639126 ], "year": 2007, "pin_cites": [ { "page": "834", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0830-01" ] }, { "cite": "328 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "279", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "313 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718465 ], "year": 1985, "pin_cites": [ { "page": "238", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0230-01" ] }, { "cite": "498 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "384" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648558 ], "year": 1998, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0108-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 105-164.41", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "166 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1969, "pin_cites": [ { "page": "676" }, { "page": "677" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "275 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558315 ], "year": 1969, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0215-01" ] }, { "cite": "322 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "158", "parenthetical": "citation omitted" }, { "page": "214-15" }, { "page": "158" } ], "opinion_index": 0 }, { "cite": "312 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749915 ], "year": 1984, "pin_cites": [ { "page": "214", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0211-01" ] }, { "cite": "548 S.E.2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "517", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 659", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135857 ], "year": 2001, "pin_cites": [ { "page": "664", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0659-01" ] }, { "cite": "361 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3737456 ], "year": 2007, "pin_cites": [ { "page": "535", "parenthetical": "internal quotation marks and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0531-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 105-164.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-164.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(49)" }, { "page": "(37)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-164.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "parenthetical": "a" }, { "parenthetical": "a" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 604, "char_count": 14127, "ocr_confidence": 0.762, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14875249483657155 }, "sha256": "8bcbba648844f810fdd0cd16393d8db4b1b2cd0c55895b338cfab025bff290d9", "simhash": "1:a3b88177107b1812", "word_count": 2293 }, "last_updated": "2023-07-14T22:16:59.313771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEPHENS concur." ], "parties": [ "TECHNOCOM BUSINESS SYSTEMS INCORPORATED, Petitioner v. NORTH CAROLINA DEPARTMENT OF REVENUE, Respondent" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere sales taxes were erroneously collected on optional maintenance agreements and paid to the North Carolina Department of Revenue, pursuant to N.C. Gen. Stat. \u00a7 105-164.11 (a), Technocom\u2019s use tax liability should be offset by the erroneously collected sales tax. Therefore, we affirm the ruling of the trial court.\nFacts and Procedural History\nOn 26 September 2008, the North Carolina Department of Revenue (\u201cthe Department\u201d) issued a Notice of Final Determination (\u201cFinal Determination\u201d) to Technocom Business Systems, Incorporated, (\u201cTechnocom\u201d), a corporation in the business of selling and leasing office equipment. The Final Determination was the result of an audit performed on Technocom for the period between 1 June 2002 and 31 August 2005.\nIn the course of its business, Technocom purchases and uses parts, supplies, and materials to fulfill its optional maintenance agreements. It is under these maintenance agreements that Technocom services the equipment that it sells or leases to its customers. Regarding Technocom\u2019s tax liability under these maintenance agreements, the Department made the following conclusion:\nNorth Carolina imposes a State and local use tax on tangible personal property purchased inside or outside the State for storage, use or consumption in this State. . . . Use tax is payable by the person who purchases, leases or rents tangible personal property or who purchases a service.\n[Technocom\u2019s] use of parts, supplies and materials to fulfill its optional maintenance agreements during the audit period constitutes a taxable use of tangible personal property within the meaning of N.C. Gen. Stat. \u00a7 105-164.3(49). [Technocom] did not pay sales tax or accrue use tax on these items, and the Department has assessed [Technocom] for the appropriate use tax in its proposed assessment and this final determination.\nBetween 1 June 2002 and 31 August 2005, Technocom collected sales tax on its optional maintenance agreements. The Department held that these agreements were not subject to sales tax because they did not involve services necessary to complete the sale of tangible personal property under N.C. Gen. Stat. \u00a7 105-164.3(37). Technocom stated to the Department that its sales and use tax liability should be offset by the sales tax it collected on its maintenance agreements. In response, the Department stated that it could not refund or credit Technocom pursuant to N.C. Gen. Stat. \u00a7 105-164.11 (a) because there was no proof Technocom had refunded its customers the sales tax it erroneously collected on its optional maintenance agreements.\nOn 18 November 2008, Technocom filed a petition for contested case hearing in the Office of Administrative Hearings (\u201cOAH\u201d). Thereafter, on 1 May 2009, Technocom also filed a motion for partial summary judgment and the Department filed a motion for summary judgment. By order entered on 16 November 2009, an administrative law judge granted summary judgment in favor of the Department and sustained the Final Determination. The order concluded that no provision of the Revenue Act allowed Technocom to offset its use tax liability with sales tax it erroneously collected from its customers.\nThe Department, in a final agency decision, upheld the 16 November 2009 decision of the administrative law judge. On 18 March 2010, Technocom filed a petition for judicial review of the final agency decision in Wake County Superior Court.\nFollowing a hearing held 10 December 2010, the superior court reversed the decision of the OAH and the Final Determination of the Department in a 4 January 2011 order. The superior court, in pertinent part, stated:\nTransactions that do not generate a windfall and that do not result in the unfair treatment of customers are not included in the meaning of \u201cexempt or nontaxable sales\u201d in Section 105-164.11(a). Because the transactions at issue here are not \u201cexempt or nontaxable sales,\u201d Section 105-164.11(a) is not applicable. The general provision contained in Section 105-164.41 governs the outcome, and Technocom is entitled to a credit against the sales tax paid to the Department during the audit period.\nThe superior court remanded the case to the OAH with instructions to grant partial summary judgment in favor of Technocom, \u201cleaving open the amount of the tax credit to which [Technocom] is entitled\u201d for the OAH\u2019s determination. Pursuant to the superior court\u2019s order, the administrative law judge entered an order on 3 March 2011 stating the following:\n1. [Technocom] is GRANTED partial summary judgment on the following legal issue:\nWhether the North Carolina Revenue Laws authorize Technocom to offset its use tax liability on the parts and supplies it provided to customers . . . with the sales taxes based on the sales of those same Service Agreements it had previously remitted in error to the Department^]\n2. Petitioner is entitled to a tax credit of $192,457.33 on the parts and supplies [Technocom] previously charged, collected and remitted North Carolina sales tax on when it provided such items to its customers ... if the Order entered in this matter on 4 January 2011 is affirmed on appeal.\n3. No further proceedings at OAH are required in this matter as there is no dispute about the amount of credit [Technocom] would be entitled to if the Order is affirmed on appeal.\nThe Department appeals the superior court\u2019s 4 January 2011 order.\nThe sole issue on appeal is whether the North Carolina Revenue Laws authorize Technocom to offset its use tax liability with sales taxes erroneously paid by its customers. The Department argues that no provision in the North Carolina Sales and Use Tax Act (\u201cAct\u201d), N.C. Gen. Stat. \u00a7\u00a7 105-164.1 et seq., permits Technocom to claim such a credit against its use tax liability.\nAn appellate court reviewing a superior court order regarding an agency decision examines the trial court\u2019s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. When, as here, a petitioner contends the [superior court\u2019s] decision was based on an error of law, de novo review is proper.\nHolly Ridge Assocs., LLC v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 361 N.C. 531, 535, 648 S.E.2d 830, 834 (2007) (internal quotation marks and citations omitted).\nBecause this appeal centers on a close reading of the Act, we must seek \u201c[t]he principal goal of statutory construction [which] is to accomplish the legislative intent.\u201d Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citation omitted). \u201cIf the language of a statute is clear, the court must implement the statute according to the plain meaning of its terms so long as it is reasonable to do so.\u201d Id.\n[T]he Act, with certain exceptions and in pertinent part, imposes upon persons engaged in the business of selling tangible personal property at retail in this state a state sales tax at a rate of three percent of the sales price of each item sold. The Act also imposes a complementary state use tax \u201cupon the storage, use or consumption in this state of tangible personal property purchased within and without this state for storage, use or consumption within this state\u201d at a rate of three percent of the cost of such property \u201cwhen the same is not sold but used, consumed, distributed or stored for use or consumption in this State. ...\u201d\nIn re Assessment of Additional N. C. & Orange County Use Taxes, etc., 312 N.C. 211, 214, 322 S.E.2d 155, 158 (1984) (citation omitted).\nThe first purpose of the Act is to generate revenue for the state. Id. This is accomplished by a sales tax which is\nimposed upon the retail merchant as a privilege tax for the right to engage in that business. The tax is, however, designed to be passed on to the consumer. The second purpose of the sales and use tax scheme is to equalize the tax burden on all state residents. This is achieved through imposition of the use tax in certain situations where the sales tax is not applicable.\nId. at 214-15, 322 S.E.2d at 158.\n\u201cWhile a sales tax and a use tax in many instances may bring about the same result, they are different in conception.\u201d Colonial Pipeline Co. v. Clayton, 275 N.C. 215, 222, 166 S.E.2d 671, 676 (1969). \u201cA sales tax is assessed on the purchase price of property and is imposed at the time of sale. A use tax is assessed on the storage, use or consumption of property and takes ef[f]ect only after such use begins.\u201d Id. at 223, 166 S.E.2d at 677.\nThe General Assembly has defined a \u201csale\u201d as a \u201ctransfer for consideration of title or possession of tangible personal property ... for consideration of a service.\u201d N.C.G.S. \u00a7 105-164.3(36) (2009). A sale may include such things as a \u201clease or rental\u201d or a \u201ctransaction in which the possession of property is transferred but the seller retains title or security for the payment of the consideration.\u201d Id. The sales tax collected on the \u201csales price\u201d includes the \u201ctotal amount or consideration for which tangible personal property ... or services are sold, leased, or rented.\u201d N.C.G.S. \u00a7 105-164.3(37) (2009). A sales price includes \u201ccharges by the retailer for any services necessary to complete the sale.\u201d Id. (emphasis added). A \u201cuse\u201d, on the other hand, is the \u201cexercise of any right, power, or dominion whatsoever over tangible personal property ... by the purchaser of the property or service.\u201d N.C.G.S. \u00a7 105-164.3(49) (2009).\nIn the instant case, Technocom does not dispute that it improperly collected sales tax on amounts charged under its optional maintenance agreements and that Technocom should have paid a use tax in connection with the parts and supplies it provided under those agreements. However, it does argue that pursuant to N.C. Gen. Stat. \u00a7 105-164.41, the Department is required to issue Technocom a credit against \u201cany\u201d tax. Technocom asserts that the Department should credit the sales taxes made in error against the use tax assessment levied by the Department, particularly, whereas here, the Department seeks to treat the transactions at issue as a \u201cuse\u201d for tax purposes but as a \u201csale\u201d for refund purposes.\nN.C.G.S. \u00a7 105-164.41, titled \u201cExcess payments; refunds[,]\u201d states that \u201c[if] it appears that an amount of tax has been paid in excess of that properly due, then the amount in excess shall be credited against any tax or installment thereof then due from the taxpayer[.]\u201d N.C.G.S. \u00a7 105-164.41 (2009). On the other hand, N.C. Gen. Stat. \u00a7 105-164.11 (2009), titled \u201cExcessive and erroneous collections[,]\u201d provides guidance in situations where excessive and erroneous collections are made and, specifically, prohibits the relief sought by Technocom. N.C.G.S. \u00a7 105-164.11 provides the following:\nWhen the tax collected for any period is in excess of the total amount that should have been collected, the total amount collected must be paid over to the Secretary. When tax is collected for any period on exempt or nontaxable sales the tax erroneously collected shall be remitted to the Secretary and no refund shall be made to a taxpayer unless the purchaser has received credit for or has been refunded the amount of tax erroneously charged.\nN.C.G.S. \u00a7 105-164.11 (2009) (emphasis added).\nThe rules of \u201c[statutory construction requiref] that a more specific statute controls over a statute of general applicability.\u201d Stewart v. Johnston County Bd. Of Educ., 129 N.C. App. 108, 110, 498 S.E.2d 382, 384 (1998). \u201cWhen two statutes apparently overlap, it is well established that the statute special and particular shall control over the statute general in nature, even if the general statute is more recent, unless it clearly appears that the legislature intended the general statute to control.\u201d Trustees of Rowan Technical College v. J. Hyatt Associates, Inc., 313 N.C. 230, 238, 328 S.E.2d 274, 279 (1985) (citation omitted).\nN.C.G.S. \u00a7 105-164.41 is the more general statute, applying to any situation where the amount of tax has been paid in excess of that properly due. However, although N.C.G.S. \u00a7 105-164.11 is a more specific and particular statute, it does not apply to the instant case, as the Department would have us hold. N.C.G.S. \u00a7 105-164.11 only applies to taxes collected on \u201cexempt or nontaxable sales.\u201d As previously stated, a sale is the transfer of tangible personal property for a consideration to be paid. In its February 2010 Final Agency Decision, the Department concluded that the optional maintenance agreements at issue constituted a taxable use of tangible personal property within the meaning of N.C.G.S. \u00a7 105-164.3(49) and not a sale. Accordingly, the Department held that the agreements were subject to use taxes and not sales taxes. Therefore, N.C.G.S. \u00a7 105-164.11 does not apply. We hold that the general provision in N.C.G.S. \u00a7 105-164.41 governs the outcome, entitling Technocom to a credit against the sales tax paid to the Department during the audit period. Based on the foregoing, the order of the trial court is affirmed.\nAffirmed.\nJudges ELMORE and STEPHENS concur.\n. N.C.G.S. \u00a7 105-164.3(49) defines \u201cuse\u201d under Article 5 of the General Statutes.\n. N.C.G.S. \u00a7 105-164.3(37) defines the meaning of \u201csales price\u201d under Article 5 of the general statutes.\n. N.C.G.S. \u00a7 105-164.11(a) is titled, \u201cExcessive and erroneous collections.\u201d", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, by Assistant Attorney General Tenisha S. Jacobs, for respondent-appellant.", "The Wooten Law Firm, by Louis E. Wooten, and Everett Gaskins Hancock LLP, by E.D. Gaskins, Jr., for petitioner-appellee." ], "corrections": "", "head_matter": "TECHNOCOM BUSINESS SYSTEMS INCORPORATED, Petitioner v. NORTH CAROLINA DEPARTMENT OF REVENUE, Respondent\nNo. COA11-655\n(Filed 21 February 2012)\nTaxation\u2014use tax liability\u2014offset by erroneously collected sales tax\nThe North Carolina Revenue Law under N.C.G.S. \u00a7 105-164.41 authorized petitioner to offset its use tax liability with sales taxes erroneously paid by its customers.\nAppeal by respondent from order entered 7 January 2011 by Judge Ben F. Tennille in Wake County Superior Court. Heard in the Court of Appeals 9 November 2011.\nAttorney General Roy A. Cooper, by Assistant Attorney General Tenisha S. Jacobs, for respondent-appellant.\nThe Wooten Law Firm, by Louis E. Wooten, and Everett Gaskins Hancock LLP, by E.D. Gaskins, Jr., for petitioner-appellee." }, "file_name": "0207-01", "first_page_order": 217, "last_page_order": 223 }