If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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- 

### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

TRUGREEN LIMITED PARTNERSHIP

,

Plaintiff

- Appell ant

, FOR PUBLICATION April 10, 2020

9:00 a.m.

v No. 344142

Court of Claims

DEPARTMENT OF TREASURY

, LC No. 17

- 000141

- MT

Defendant

- Appell ee

.

Before: S HAPIRO

, P .J., and G LEICHER and S WARTZLE , JJ.

G LEICHER

, J

.

Michigan ’s use tax exempts property consumed in the tilling, planting, caring for or harvesting things of the soil, or in the breeding, raising or caring of livestock

, poultry or horticultural products for further growth. The se words conjure images of our state’s bean fields, dairy farms , and cherry orchards. The question presented is whether the Legislature intended that

a lawn care company w ould reap the fruit s of this exemption

. T he statutory vocabulary describe s a tax subsidy aimed at growing Michigan’s agricultural economy
, not ornamental grass and shrubs

. The Court of Claims reached the same conclusion. W e affirm.

I

The history of the statute at issue dates back to 1935, when the Legislature first exempted from “sale at retail” under the General Sales Tax Act “any transaction

. . . of tangible personal
property

. . . for consumption or use in industrial processing o r agricultural producing.” 129 CL

3663

- 1(b.1), as amended by 1935 PA 77. Two years later, the Legislature exempted the same

transactions from the use tax. 1929 CL 3663

- 44(g), as amended by 1937 PA 94.

Between 1937 and 2012 the Legislature revised the u se tax language several times

. For more information regarding the amendments, see this link to the Legislature’s website : http://bit.ly/2Rc7zG5

. The version of the statute in effect during the tax years relevant here
exempts from the use tax:- 2

- Property sold to a person engaged in a business enterprise and using and consuming the property in the tilling, planting, caring for, or harvesting of the

t hings of the soil or in the breeding, raising, or caring for livestock, poultry, or horticultural products, including transfers of livestock, poultry, or horticultural products for further growth. This exemption includes machinery that is capable of

simul taneously harvesting grain or other crops and biomass and machinery used for the purpose of harvesting biomass. This exemption includes agricultural land tile, which means fired clay or perforated plastic tubing used as part of a subsurface drainage syste m for land used in the production of agricultural products as a business enterprise and includes a portable grain bin, which means a structure that is used or is to be used to shelter grain and that is designed to be disassembled without significant damage to its component parts. This exemption does not include transfers of food, fuel, clothing, or similar tangible personal property for personal living or human consumption. This exemption does not include tangible personal property permanently affixed to and becoming a structural part of real estate. As used in this subdivision, “biomass” means crop residue used to produce energy or agricultural crops grown specifically for the production of energy. [MCL 205.94(1)(f), as amended by 2012 PA 474 (emphasis added). 1 ]

Our task is to determine whether the italicized language applies to Tru G reen.

Tru G reen offers its customers lawn and ornamental plant care services. An affidavit submitted by Tru G reen’s director of technical operations describes that Tru G reen ’s business is

built around seasonal or annual service subscriptions entered into by residential homeowners and commercial, institutional and private landowners. For a set fee, t he company cares for grass, trees

, and shrubbery at a variety of locations in a ddition to homes , including school grounds, parks, athletic fields, business parks, malls, airports, roadways and pastures not used for agricultural production. Tru G reen utilizes fertilizers, herbicides, and insecticides to care for its customers’

turfs a nd ornamental plants, providing nutrients, controlling weeds, and preventing insects

. Sometimes Tru G reen must “amend” the soil after testing it by adding additional ing r edients (such as lime, sulfur, gypsum, or iron) to enhance the health of grass, trees, or shrubs

. It also aerate s lawns and add s additional seed to remedy bare spots

. Tru G reen does not offer services to nurseries, tree or nut farms, or individuals or entities engaged in fruit or vegetable production . T he affida vit

elucidates : “ Our branch location business licenses are specific to turf and ornamental plant care only.”

In November 2015, Tru G reen requested a use tax refund in the amount of $4,745.39 for the fertilizer, grass seed, and other products it used in its commercial lawn care business during a

31

- day period in 2012. The Department of Treasury denied the refund claim and Tru G reen requested an informal conference. Before the conference could be held , Tru G reen submitted

1 A different version of the statute applied to part of the 2012 tax year, but the operative language

in the first sentence remained the same.- 3

-

another use tax refund claim for a lon ger period (four and a half years) in the amount of $1,168,333.49.

A referee concluded that Tru G reen had established its eligibility for the exemption and was entitled to a refund. The referee reasoned that “there are only two requirements for this exemp tion, (1) that a person be engaged in a business enterprise, and (2) the tangible personal property be used and consumed in the . . . planting [or] caring for . . . things of the soil.” In 2004, the referee noted, the Legislature removed language from the statute requiring that an entity be engaged in “agricultural production.” 2 The referee concluded, “Petitioner is engaged in a business enterprise (servicing lawns) and used and consumed the tangible personal property purchased (grass seed and

fertilizer ) in the planting and caring for of [sic] things of the soil. As such, the grass seed and fertilizer it purchased meets the two requirements set forth in [MCL 205.94(1)(f)] for exemption from use tax in Michigan.”

The d epartment issued a “ Decision and O rder of Determination ” denying the refund claim

, reasoning that “the statute and administrative rules requiring tangible personal property to be used within agricultural production remained valid notwithstanding [the 2004] amendment.” According to the d ep artment, caselaw following the amendment continued to construe the exemption as implicating “agricultural production

. ” “In giving proper meaning to the undefined phrase ‘things of the soil,’ ” the d epartment advocated, “it is important to consider that Mi chigan follows the doctrine ‘that a word or phrase is given meaning by the context of its setting

. . . .” The other words in the statutory “setting” support that the Legislature envisioned that “things of the soil” meant growing, cultivating, or extracti ng crops or comparable things.

Tru G reen appealed in the Court of Claims , where the parties filed cross

- motions for summary disposition. Tru G reen raised two arguments in support of its eligibility for the exemption. First, Tru G reen contended, it s activities satisfy the plain language of the statute, as the company is engaged in “tilling, planting

. . . [and] caring for

. . . things of the soil.” Second, TruGreen argues that this Court’s opinion in William Mueller & Sons, Inc v Dep’t of Treasury

, 189 Mich App 570, 571; 473 NW2d 783 (1991)

, compel s the same conclusion

, asserting that it stands for the proposition “that agricultural production is not required by the statute.”

The Court of Claims rejected both arguments, ruling that the statute req uired the claimant to create or contribute to an agricultural or horticultural product. Citing several of this Court’s cases interpreting MCL 205.94(1)(f), the Court of Claims observed that all “support the conclusion that production of horticultural or a gricultural products is necessary.” (Emphasis in original

. ) The

2 The 2004 amendment eliminated two sentences from the statute: “ At the time of the transfer of that tangible pers onal property, the transferee shall sign a statement, in a form approved by the department, stating that the property is to be used or consumed in connection with the production of horticultural or agricultural products as a business enterprise. The state ment shall be accepted by the courts as prima facie evidence of the exemption. ” MCL 205.94(1)(f), as amended by 2004

PA 172. We discuss this amendment later in the opinion.- 4

-

Court of Claims denied Tru G reen’s motion for reconsideration and Tru G reen now appeals as of right.

II

Because this case presents a purely legal question, our review is de novo. Gen Motors Corp v Dep ’ t of Treasury , 290 Mich App 355, 369; 803 NW2d 698 (2010). A few tax principles

, combined with a couple of interpretive precepts

, inform our thinking

.

“ T ax exemptions are the antithesis of tax equality ” and therefore must be “ strictly

construed

, ” generally “ in favor of the taxing authority. ” Canterbury Health Care, Inc v Dep ’ t of Treasury , 220 Mich App 23, 31; 558 NW2d 444 (1996) . Justice C OOLEY explained the underlying rationale for considering tax exemption s cautiously and conservat ively as follows :

“ Exemptions are never presumed, the burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption will be strictly construed and cannot be made out by inference or implication but must be beyond r easonable

doubt. In other words, since taxation is the rule, and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms; it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain; and the burden of establishing it is upon

him who claims it. Moreover, if an exemption is found to exist, it must not be enlarged by construction, since the reasonable presumption is that the State has granted i n express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what

was meant. ” [ Detroit v Detroit Commercial College , 322 Mich 142, 149 ; 33 NW2d 737 (1948), qu oting 2 Cooley, Taxation (4th ed), § 672, p 1403.]

Thus, Tru G reen bears a heavy burden. It must demonstrate that the L egislature had the economic interests of lawn care compan ies in mind when it enacted the exemption, MCL 205.94(1)(f). “Implication s ” and “inference s ” do not suffice. 3

3 The dissent takes issue with Justice C OOLEY ’s approach to the construction of t ax exemptions, preferring the views expressed in Scalia & Garner, Reading Law : The Interpreting of Legal Texts (St. Paul: Thomson/West, 2012)

. The quote “ cannot be taken at face value,” the dissent maintains

, as a “reasonable doubt” standard of proof coul d not possibly apply in this civil case. True enough,

and lik ely the dissent correctly pegs that aspect of the quote as a “rhetorical flourish.” But

“ r hetorical flourish” or not, our Supreme Court put its thumb on Justice C OOLEY ’s side of the scale

in 19 48 in Detroit v Detroit Commercial College , 322 Mich 142, 149; 33 NW2d 737 (1948), and kept it there as recently as 1980 in Ladies Literary Club v Grand Rapids , 409 Mich 748, 754; 298 NW2d 422 (1980) (“Justice C OOLEY best summarized the rule of law in his treatise on

taxation [.] ”)

. A s Scalia and Garner point out, Reading Law at 359, the United States Supreme Court has set out the same principles as recently as 2011 in Mayo Found ation for Med Ed &

Research v United St ates , 562 US 44, 59

- 60; 131 S Ct 704; 178 L Ed 2d 588 (2011) (“[W]e have- 5

-

Against this legal backdrop

, we turn to the words

. The exemption applies to:

P roperty sold to a person engaged in a business enterprise and using and consuming the property in the tilling, planting, caring for, or harvesti ng of the things of the soil or in the breeding, raising, or caring for livestock, poultry, or horticultural products, including transfers of livestock, poultry, or horticultural products for further growth.

. . . [MCL 205.94(1)(f), as amended by 2012 PA 474 .]

TruGreen contends that that because it “plants” grass and is engaged in “caring for things of the soil,” it is excused from paying use taxes on the fertilizer, insecticides

, and myriad other products it consumes to keep customers’ lawns green and he althy. E mploying a purely textual approach, TruGreen urges that its activities fall within the realm of “horticulture” and “caring for”

soil. The analysis is simple, TruGreen insists. Because it uses and consumes tangible personal property to “plant” and “care for” grass, trees and shrubs

— indisputably things of the soil

— it is plainly and unambiguously entitled to the use tax exemption.

Often, “[w]hat is ‘plain and unambigu ous ’

. . . depends on one ’ s frame of reference.” Shiffer v Bd of Ed of Gibraltar Sch Dist , 393 Mich 190, 194; 224 NW2d 255 (1974). Were we to consider the words and phrases cherry

- picked by TruGreen in isolation from the rest of the text, we might agree that TruGreen should prevail. TruGreen’s proposed interpretive methodology, however, reduces the statute’s meaning to a couple of selectively harvested words, and bur ie s the

balance of the text. This approach risks an interpretation in tension with the w hole te x t’s most logical and natural meaning

. Rather than plucking words from the statute, we focus on the whole

text ual landscape . We endeavor to harmoniz e all the words, thereby cultivating a coherent reading that promotes the Legislature’s goals while maintaining fidelity to underlying legal principles. Here, those principles counsel in favor of a narrow reading of the exemption

, rooted in the rationale for relieving certain entities from the burden of paying the tax.

“[T] he meaning of statutory langu age, plain or not, depends on context. ” King v St

Vincent ’ s Hosp , 502 US 215, 221; 112 S Ct 570; 116 L Ed 2d 578 (1991)

. “Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetr ate the other, but all in their aggregate take their purport from the setting in which they are used

. ” Id

. ( cleaned up )

. 4 This focus on the big picture echoes a primary canon of

instructed that ‘ exemptions from taxation are to be construed narrowly[.] ’ ”)

. And our Supreme Court has oft repeated that statutory exceptions to governmental immunity are to be “na rrowly construed,” Nawrocki v Macomb Co Rd Comm’n , 463 Mich 143, 158; 615 NW2d 702 (200 0 ), another “rule” that is entirely judge

- made. But see Justice V IVIANO ’s concurring opinion in Schaub as Next Friend of Schaub v Seyler , 504 Mich 987; 934 NW2d 46, 49 (2019), which seems to call into question the application of such rules.

4 This opinion uses the parenthetical “ cleaned up ” to improve readability without altering the substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets, alterations, internal quotation marks, and unimportant citations have been omitted from the quotation. See Metzler, Cleaning Up Quotations , 18 J App Pract & Process 143 (2017).- 6

-

construct i on: the individual, discrete words of a statute must be read holis tically “ with a view to their place in the overall statutory scheme. ” Davis v Mich Dep ’ t of Treasury , 489 US 803, 809 ; 109 S Ct 1500 ; 103 L Ed 2d 891 (1989); see also Scalia & Garner, Reading Law: The Interpretation of Legal Texts ( St. Paul: Thomson/West, 2012) , p 167 (“[T]he whole

- text canon

. . . calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts

. ”) ; S outh Dearborn Environmental Improvem ent Ass ’ n, Inc v Dep ’ t of

Environmental Quality , 502 Mich 349, 367

- 3 68; 917 NW2d 603 (2018) (“ However, we do not read statutory language in isolation and must construe its meaning in light of the context of its

use. ”). 5

T he exemption ’s first relevant sentence is a string of participles: tilling, planting, caring for, harvesting, breeding, and raising. The words describe actions respecting “things of the soil” or “livestock, poultry or horticultural products.” They are located in a statute creating a n exemption from taxation, which we must strictly construe. Although g rass and trees are “things of the soil,” that phrase is surrounded by words describing activities that take place on farms. A

“ fundamental principle of statutory construction (and, ind eed, of language itself) [is] that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which

it is used. ” Deal v United States , 508 US 129, 132; 113 S Ct 1993; 124 L Ed 2d 44 (1993)

. TruGreen plants grass and ca res for it. But the grass it plants and tends is decorative , and the work it does is unrelated to crop cultivation or agricultur e in general

. Considered within its contextual milieu, the term “things of the soil” pertains to the products of farm s and hor ticultural businesses,

not blades of well

- tended grass

. 6

Independent of the rest of the statute , the terms “caring for” and “planting” could apply to

Tru G reen’s lawn care enterprise , and the vivisection ist model of statutory interpretation supports

that result. Our Supreme Court has applied such an approach, we acknowledge, in cases such as

Robinson v Detroit , 462 Mich 439, 461

- 462; 613 NW2d 307 (2000) (relying on a dictionary definition of the word “the”)

, and Nawrocki v Macomb Co Rd Comm’n , 463 Mich 143, 1 60 ; 615 NW2d 702 (2000) (examining the four sentences of a single statutory subsection separately and

5 Li ke TruGreen, the dissent champions a purely textual approach, emphasizing that “things of the soil” means “things” (grass is a “thing”) that come from the “soil” (grass comes from the soil). True enough

—

no one disputes that grass is a “thing of the soil.” But the meaning of a phrase also depends on how its constituent parts are joined and interact. Sometimes “things of the soil” do not grow from the soil at all. See 1 The Schocken Bibl e: The Five Books of Moses (Random House 2000), Genesis 1:25 ( “God ma de the wildlife of the earth after their kind, and the herd

- animal s after their kind, and all crawling things of the soil after their kind.” ).

6 TruGreen’s interpretation would extend the use tax exemption to every lawn care and tree service company doing business in Michigan. And c onsistent with TruGreen’s interpretation of “things of the soil,” those businesses would be eligible for a sales tax exemption on lawn and garden

related purchases, as Michigan’s sales tax includes the same exemption. See MCL 205.54a (1) (e) ( stat ing that “a sale of tangible personal property to a person engaged in a business enterprise that uses or consumes the tangible personal property, directly or indirectly, for either the tilling, planting, draining, caring for, maintaining , or harvesting of things of the soil or the breeding, raising, or caring for livestock, poultry, or horticultural products” is exempt from sales tax )

.- 7

-

independently to discern their meaning)

. Nevertheless, the “context is king” method we employ today has a long and health y pedigree. For example, t he United States Supreme Court has explained that “ [i] n determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its ob ject and policy

. ” Crandon

v United States , 494 US 152, 15 6 ; 110 S Ct 997 ; 108 L Ed 2d 132 (1990)

. The Michigan Supreme

Court has frequently followed the same interpretive pathway, counseling that words “ must be read in context with the entire act, and th e words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute, construed in the light of history and common

sense. ” Arrowhead Dev Co v Livingston Co Rd Comm , 413 Mich 505, 516; 322 NW2d 702 (1982)

. More recently, in GC Timmis & Co v Guardian Alarm Co , 468 Mich 416, 421; 662 NW2d 710 (2003) (cleaned up) , the Supreme Court highlighted that the statutory language at issue in that case
did not “stand alone” and “ should not be construed in the void, bu t should be read together to harmonize the meaning, giving effect to the act as a whole.” Our Supreme Court continued

, “A lthough a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context ,” which requires interpreting courts to refrain from “divorc[ing]” “words and clauses

. . . from those which precede and those which
follow.” Id

. (cleaned up). “[W] ords grouped in a list should be given related meaning.” Id

. (cleaned up).

The wo rds closely adjoining “planting” and “caring for things of the soil” are : “ tilling, ”

“ harvesting of things of the soil ,” “ breeding, ” “ raising, ” “ caring for livestock, poultry, or horticultural products, ” and “ the transfers of livestock, poultry, or horticu ltural products for further growth. ” This collection of words and phrases logically connotes that the use tax exemption

incentivize s investment in the agricultural realm

. 7 Farmers “till,” “plant,” “care for” and “harvest” things of the soil; they also “care for” animals. Several sentences that follow ed these, then located in the same statutory subsection, reinforce that the Legislature intended the exemption to apply to agricultural activities. 8 The second sentence of MCL 205.94(1) ( f ), as amended by 2 012 PA 474

, state d that the “ exemption includes machinery that is capable of simultaneously harvesting grain or other crops and biomass and machinery used for the purpose of harvesting biomass.” 9 The third

sentence further provide d that the “ exemption inc ludes agricultural land tile, which means fired clay or perforated plastic tubing used as part of a subsurface drainage system for land used in the production of agricultural products as a business enterprise and includes a portable grain bin

. . . .”

Rea d as a cohesive whole, MCL 205.94(1) was and is intended to benefit businesses that contribute to our state’s agricultural sector.

7 P romoting agricultural investment benefits Michigan’s economy and helps put local food on our

tables. Lawns, on the other hand, demand fertilizer, water, energy

, and land. The exemption from

taxation at issue encourages the production of market resources, not their consumption.

8 The remaining sentences of MCL 205.94(1)(f) , as amended by 2012 PA 474, hav e since been

moved to other subsections of the statute.

9 The subsection define d “biomass” as “crop residue used to produce energy or agricultural crops grown specifically for the production of energy.” MCL 205.94( 1 )( f ), as amended by 2012 PA 474

.- 8

- III

W e are not the first judges to conclude that MCL 205.94(1) applies to businesses associated with agriculture. The casela w has consistently referred to the statutory subsection at issue as the “agricultural

- production exemption.” See Detroit Edison Co v Dep ’ t of Treasury , 498 Mich 28,

50 n 14; 869 NW2d 810 (2015); Sietsema Farms Feeds, LLC v Dep ’ t of Treasury , 296 Mich App 232, 235; 818 NW2d 489 (2012) ; Mich Milk Producers Ass ’ n v Dep ’ t of Treasury , 242 Mich App 486, 488; 618 NW2d 917 (2000) ; Kappen Tree Service, LLC v Dep ’ t of Treasury

, unpublished opinion of the Court of Appeal s, issued April 2 6, 2016 (Docket No 325984) , s lip op at 3

.

William Mueller & Sons

, 189 Mich App 570, is instructive. In that case, we held the exemption applicable to Mueller & Sons’ purchase of fertilizer equipment. Mueller & Sons was “in the business of testing farm soil, recommending fertilizer mixes, and selling seed and fertilizer

to farmers.” Id

. at 571. The company also purchased produce from farmers, and both used

fertilization

- application equipment and offered it for rent to farmers. Id . This Court rebuffed the

d epartment’s argument that to qualify for the exemption the taxpayer had to direc tly produce agricultural products, and instead explained that “[s]ection 4(f), by its plain language, exempts property sold to a business enterprise if the property is used for agricultural or horticultural growth

. ” Id . at 573. T he taxpayer itself need n ot engage “in the business of producing agricultural products[.]” Id . at 573

- 574. The touchstone, we highlighted, was involvement in an agricultural

endeavor. Id . at 574.

TruGreen asserts that Mueller is inapposite, as the statute in effect at that time included the following two sentences:

[ A ] t the time of the transfer of that tangible personal property, the transferee shall sign a statement, in a form approved by the department, stating that the property is

to be used or consumed in connection with the production of horticultural or agricultural products as a business enterprise. The statement shall be accepted by the courts as prima facie evidence of the exemption. [MCL 205.94(f), as amended by 1978 PA 262.]

In 2004, the Legislature eliminated this s igned

- statement requirement. 2004 PA 172. The elimination of statutory language sometimes supplies an indicator of legislative intent. Sam v

Balardo , 411 Mich 405, 430; 308 NW2d 142 (1981). Here, however, all that was removed was a certification requir ement. The Court of Claims noted that this amendment was part of a larger legislative plan to adopt the Streamlined Sales and Use Tax Administration Act

, MCL 205.801 et

seq

. The seller now bears the burden of identifying the ground for an exemption, not the purchaser.

See MCL 205.104b(1). This administrative change did not alter the design, structure, purpose or meaning of the rest of the statute.- 9

-

MCL 205.94(1) permits a tax exemption for property used in agricultural production and supply

. TruGreen is not involved in any agricultural endeavors. Applying a n organic approach to

all the statutory words

, we affirm the Court of Claims

.

/s/ Elizabeth L. Gleicher /s/ Douglas B. Shapiro