Village of Lannon, Plaintiff-Respondent, v. Wood-Land Contractors, Inc., Defendant-Appellant, Mary L. Barnekow, Defendant, 259 Wis. 2d 879

BROWN, J. ¶ 1. Wisconsin allows certain property to be exempt from general property taxes. One of these exemptions is for logging equipment. Wisconsin Stat. § 70.111(20) (1999-2000), entitled "Logging Equipment," gives an exemption for "[a]ll equipment used to cut trees, to transport trees in logging areas or to clear land of trees for the commercial use of forest products." Wood-Land Contractors, Inc., is in the business of clearing land for developers.

Incidental to its business, it cuts trees, removes them from the developers' land, produces logs, firewood and wood chips from these trees and sells the products. The Village of Lannon sought to tax Wood-Land's tree cutting equipment. Wood-Land refused to pay the tax and the Village sued. We agree with the trial court that the statute was designed to give an exemption for those systematically involved in the logging business, not to those who incidentally cut logs and sell the products as a small part of an altogether different kind of business.

We affirm the trial court's judgment that Wood-Land must pay taxes on its tree cutting equipment. ¶ 2. This case is here on review of a

summary judgment that was granted after the parties agreed to the undisputed facts. The facts are as follows: WoodLand is a contractor that clears land for developers. As part of its operations, it removes all of the timber from the site and either processes it at the site before removal or removes it to its facilities where the trees are turned into logs or firewood. Wood-Land owns approximately 1.3 million dollars in equipment. In 2001, Wood-Land had total sales of $749,697. Of this total, $666,150 came from "construction sales" and the remainder came from the sale of logs, firewood and wood chips.

Thus, Wood-Land's sale of commercial forest products represents less than fifteen percent of its total sales. For the tax year 2000, the Village assessed personal property taxes of $15,398.63, which Wood-Land refused to pay. ¶ 3. Wood-Land's position before the trial court was straightforward. It noted that it cuts trees, the trees are cut to clear land and the trees are then allocated for commercial use of forest products. Therefore, Wood-Land asserted that it came within the exemption. The trial court did a statutory construction analysis. It gave special emphasis to the word "for" in Wis.

Stat. § 70.111(20) as suggested by the Village. It consulted Black's Law Dictionary and Webster's Third New International Dictionary regarding the word "for" and determined that, in the context of the statute at hand, "for" means "for the purpose of' or "for the reason of." The trial court then concluded that because WoodLand cuts trees both "for the purpose of' clearing land for its customers and also "for the purpose of' producing forest products, and because the production of forest products was not the "primary purpose" of such activity, the exemption should be denied.

The trial court relied upon this court's opinion in Village of Menomonee Falls v. Falls Rental World, 135 Wis. 2d 393, 400 N.W.2d 478 (Ct. App. 1986). The trial court saw this case as establishing the law that unless the primary purpose of the business is one that the exemption is designed for, the exemption may not apply, even if — incidentally—the business might satisfy the statute. From this judgment, Wood-Land has appealed. El-53 ¶ 4. Our first order of business is to construe the statute. Statutory construction is a question of law. Wis. Cent. Ltd. v.

DOR, 2000 WI App 14, ¶ 9, 232 Wis. 2d 323, 606 N.W.2d 226. Therefore, we review the statute de novo. Id. In so doing, however, we value the trial court's opinion. Because this is a tax exemption case, the burden of establishing entitlement rests with the taxpayer. Friendship Village of Greater Milwaukee, Inc. v. City of Milwaukee, 181 Wis. 2d 207, 219, 511 N.W.2d 345 (Ct. App. 1993). Exemption statutes are strictly construed and must be clear and express. State ex rel. Dane County Title Co. v. Bd. of Review of City of Madison, 2 Wis. 2d 51, 61, 85 N.W.2d 864 (1957).

If doubt exists, the doubt is resolved against the taxpayer. See Friendship Village, 181 Wis. 2d at 220. In analyzing a tax exemption claim, the taxpayer must show that the proffered construction is supported by clear evidence of legislative intent. Owens-Illinois, Inc. v. Town of Bradley, 132 Wis. 2d 310, 314, 392 N.W.2d 104 (Ct. App. 1986). The legislative intent is derived by giving the statutory language its ordinary and accepted meaning. Id. In the absence of a statutory definition or case law to define terms within the statute, the common and generally understood meaning of the term should be applied.

State v. City of Madison, 55 Wis. 2d 427, 433, 198 N.W.2d 615 (1972). ¶ 5. Before we begin our statutory construction of the exemption statute, we point out that we will not consider disputed language in a statute in isolation, but in the context of the entire statute. Town of Avon v. Oliver, 2002 WI App 97, ¶ 7, 253 Wis. 2d 647, 644 N.W.2d 260, review denied, 2002 WI 109, 254 Wis. 2d 263, 648 N.W.2d 478 (Wis. June 11, 2002) (No. 01-1851).

Rules of grammar and punctuation should not be applied at the expense of a natural, reasonable reading of statutory language, taking into account the context in which it appears and the purpose of the statute, especially when the result would be an expansion or contraction of the statute contrary to its terms. Peterson v. Midwest Sec. Ins. Co., 2001 WI 131, ¶ 23 n.7, 248 Wis. 2d 567, 636 N.W.2d 727. ¶ 6. We begin our analysis with the title. Although the title is not part of the statute and cannot defeat the language of the law, it is persuasive evidence of statutory

interpretation. Mireles v. LIRC, 2000 WI 96, ¶ 60 n.13, 237 Wis. 2d 69, 613 N.W.2d 875. The title is "Logging Equipment." As stated by the Village, there is no case in Wisconsin defining the term. Nonetheless, we may resort to a recognized dictionary in order to gain understanding as to the common and generally understood meaning of the term. Falls Rental World, 135 Wis. 2d at 397. We have found cogent

definitions of "logging" in both Black's Law Dictionary and Webster's Third New International Dictionary. We will italicize what we consider to be important as regards this case. Black's Law Dictionary defines "logging" as an industry which: [ijncludes felling and preparation of logs for transport, log assemblage, and main log haul; it includes also production of large quantities of pulpwood, cross ties, poles, piling, mine timbers, veneer logs, bolts and miscellaneous other forms. (Citation omitted.) Black's Law Dictionary 1091 (4th ed. 1968). ¶ 7.

Webster’s Third New International Dictionary defines "logging" as: [T]he occupation of felling trees and cutting them up into logs and transporting the logs to sawmills or to a place of sale. (Emphasis added.) Webster's Third New International Dictionary 1330 (1993). ¶ 8. From these

definitions, we see that the statute applies to a specific genre known as the logging industry, an industry involved in the systematic cutting and transporting of logs for eventual commercial use. We emphasize the word "systematic" because it separates those in the logging business from those who incidentally cut trees as part of some other business. ¶ 9. The logging industry has equipment which, the statute says, is used to cut trees, to transport trees in logging areas or to clear land for the commercial use of forest products.

Wood-Land has not asserted that its employees cut and transport trees in logging areas. Therefore, in order to come within the purview of the statute, Wood-Land focuses on the phrase "to clear land of trees for the commercial use of forest products." It claims that its equipment is used for such purpose. ¶ 10. At trial, the parties, and ultimately the trial court, focused on the term "to clear land of trees for the commercial use." As we explained at the outset, the Village construed the phrase to mean that the commercial use of forest products must be the primary reason why the land is being cleared.

Wood-Land, on the other hand, noted that the word "primary" is not in the statute and asserted that it does clear land and the trees that are cleared are processed for commercial use. ¶ 11. In determining whether the trial court correctly construed the phrase, we broaden the question a bit. Instead of concentrating on the term "to clear land of trees for the commercial use," we add the last part of the phrase and construe the term "forest products" as part of our

interpretation of the whole phrase. In other words, we will review the following phrase, "to clear land of trees for the commercial use of forest products." In our view, the term "forest products" is a meaningful part of the phrase, especially in relation to the term we have earlier defined, logging equipment. We observe that the legislature did not write into the statute the term "to clear land of trees for the commercial use of felled trees." It specifically and expressly used the term "forest products." What is a "forest product?" Again, Webster's helps us out.

A forest is: [A] dense growth of trees and underbrush covering a large tract of land. Webster's Third New International Dictionary 890 (1993). ¶ 12. We surmise that most Wisconsinites would agree that this is the common and generally understood meaning of the term. A reasonable person would also not think of a tree standing in front of a residential lawn as a potential "forest product." ¶ 13. Again, we cannot take words in isolation, but must look to the relevant language in the whole statute.

When we do, we see that this exemption applies to the logging industry, to those who are in the business of cutting and transporting trees in logging areas or who are in the business of clearing forest land for the express purpose of using the fruits of their labor for eventual commercial use. Under this definition, WoodLand does not qualify. Its business is to clear land for the purpose of giving developers what they want: land free from obstructions. That is what it gets paid for. While Wood-Land may incidentally fell trees as part of its business, it does not cut and transport from logging areas.

And it does not go into a forest with the express purpose in mind of clearing land "for the purpose of' commercially using the felled trees. Any incidental value it gets from commercially selling the felled trees it carries from developers' property is collateral to its main occupation. Wood-Land is not engaged in the systematic occupation of logging. ¶ 14. While we do not think the statute is ambiguous, we may refer to legislative history in support of our construction. State v. Timmerman, 198 Wis. 2d 309, 321 n.3, 542 N.W.2d 221 (Ct. App. 1995).

We note that in one of the drafts of the statute at hand, 1983 A.B. 38 stated: All equipment used to cut trees, for lumber to transport trees in logging areas or to clear land of trees in lumbering. While the last part of the statute was changed to say "for the commercial use of forest products," we think the change still refers to the lumbering or logging industry. Wood-Land, plainly and simply, is not engaged in clearing the land for lumbering. ¶ 15. The parties spend much of the time in their briefs arguing about the meaning of Falls Rental World.

The case is applicable, but not for the reason submitted by the Village, which reasoning was adopted by the trial court. In Falls Rental World, a rental center sought an exemption for its stock, claiming that it qualified as "merchants stock-in-trade." Falls Rental World, 135 Wis. 2d at 395. We held that even though worn-out rental equipment might be moved out of stock and sold, the real purpose of having the stock was to rent it out, not to turn the product over. Id. at 398.

We held that the statute was designed to provide an exemption for merchants who have stock on the shelves for a short time with the intent of selling the items. See id. Since the taxpayer in Falls Rental World was selling a service, not a product, its "stock-in-trade" was the performance of its goods and equipment. Id. Thus, we looked to the kind of business that the legislature intended to grant an exemption to and found it within the plain meaning of the statute. We did not adopt a "primary purpose" test.

Here, just as the legislature did not intend to provide an exemption for businesses such as Falls Rental, it likewise did not intend to provide an exemption for businesses such as Wood-Land. ¶ 16. But even though Falls Rental World cannot he cited for the proposition that we look to the primary purpose rather than the incidental purpose of the taxpayer, the trial court's reasoning still makes perfect sense.

We are convinced that the legislature crafted a narrow exemption for the logging industry whose existence is based upon cutting forest products in logging areas or cutting and clearing land in forests so that it can use the fruits of its labor for some commercially viable use. The legislature did not intend to grant this exemption to businesses outside the logging industry. So, even if Falls Rental World did not establish a "primary purpose test," we do. The bottom line is we must ask ourselves the purpose for which the tax exemption was granted.

If it was for a specific industry, then all of those who incidentally may come within the statute, but who are not part of that industry do not get the exemption. ¶ 17. While there are no prior cases in Wisconsin adopting the "primary purpose test," we note that the test is not applied unless we are convinced that the legislature meant to give an exemption to a narrowly tailored business. If so, then those outside that business do not get the exemption even if they can argue that the wording of the statute includes them.

As such, this case is not the first time a Wisconsin appellate court has adopted a similar rationale. In Landish Malting Co. v. DOR, 98 Wis. 2d 496, 498, 297 N.W.2d 56 (Ct. App. 1980), the supreme court read Wis. Stat. § 70.11(27) as allowing an exemption for business machinery used in manufacturing tangible personal property. Landish, 98 Wis. 2d at 498. The Department of Revenue contended that the disputed items of property, attemporators, kilns and malt elevators, were "buildings." Id. at 498-99. The court rejected the physical appearance test in favor of a "function and use" test. Id. at 506.

Under that test, the central question was whether the structure is one "whose utility is principally and primarily a significantly contributive factor in the actual manufacture or production of the product itself." Id. The same test was applied in another case, DOR v. Greiling, 112 Wis. 2d 602, 607, 334 N.W.2d 118 (1983). That case involved greenhouses. Id. at 603. In both cases, the court looked to the legislative purpose for the exemption — to allow an exemption for components that are actively involved in the making of the product itself.

In both cases, the court allowed the taxpayers to come under the exemption because they satisfied the primary purpose of the legislature's intent. Thus, in our view, these two cases provide the foundation for our decision in this case. The primary purpose of the statute is to give an exemption to those systematically engaged in the logging industry. Wood-Land does not qualify. ¶ 18. Even if we are wrong in our construction of the law and even if Wood-Land's construction of the statute is reasonable, at the very most, all this does is make the statute ambiguous.

Doubt still remains because our construction is just as reasonable. Long ago, our supreme court wrote about what we do when there is doubt with regard to a taxation exemption statute. In Mitchell v. City of Horicon, 264 Wis. 350, 352, 59 N.W.2d 469 (1953), the court wrote: Practical construction, it is true, has its place in the

interpretation of statutes whose meaning is doubtful. The trouble with that argument here is that it is a fundamental rule of taxation that, if there is doubt, the doubt must be resolved against the party claiming an exemption. ¶ 19. We are satisfied that our construction is correct and gives vitality to the idea that the purpose of the statute was to provide a narrow exemption for Wisconsin's logging industry. Alternatively, even if Wood-Land's construction is a reasonable one, ours is equally so and all doubts are resolved in favor of the taxing authority.

We therefore affirm the trial court's judgment ordering that Wood-Land pay taxes on its land clearing equipment. By the Court. — Judgment affirmed. All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. The dissent contends that we should remand so that Wood-Land can have the opportunity to put into evidence that it is, in fact, in the logging business. But Wood-Land had the statute in its hands when it applied for

summary judgment. It agreed that all of the facts were undisputed. In its brief-in-chief, it did not ask for a trial, but asked for a decision favoring it as a matter of law. We are convinced that had Wood-Land in fact claimed that it was in the logging business, it would have made that claim in the trial court and asked for a trial to prove it.