No. 90-441 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

UNITED GRAIN CORPORATION, Petitioner and Appellant,-vsTHE DEPARTMENT OF REVENUE OF THE 

### STATE OF 

### MAY

### 20

### 1991 MONTANA, AND THE STATE TAX APPEAL 

### BOARD OF THE STATE OF MONTANA, SLE~K OFSUPREMECOURT STATEOFMON~~~~ Respondent and Cross-Appellant.

APPEAL FROM: District Court of the First Judicial District, 

### In and for the County of Lewis & Clark, The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD: ForAppellant: Terry 

### B. Cosgrove; Luxan & Murfitt, Helena,Montana For Respondent: David L. Nielsen, Legal Counsel, Dept. of Revenue, Helena,Montana

Filed: Submitted on Briefs: April 11, 1991Justice John Conway Harrison delivered the Opinion of the Court.

The taxpayer, United GrainCorporation (United),appeals,and theDepartmentofRevenue (DOR)cross-appealsanorder of the First JudicialDistrictCourt,Lewisand ClarkCounty,which reclassified certain property owned by United and which affirmed a prior valuation of said property. TheDistrict Court'sholding reversed in part, remanded in part, and affirmed in part a prior decision of the State Tax Appeal Board (STAB). We affirm the District Court'sorder. United raises the following issue on appeal:

(1) Whether DOR has properly determined the market value of United's grain elevators. DOR raises the following issues on appeal:

(2) Whether the District Court erred in holding that the machinery in United's elevators is taxable as class four property rather than class eight property. (3) Whether the District Court erred in ordering STAB to recalculatethevalue of the elevatorsbased on the findings of the District Court regarding the rating of the facilities. FACTS This appeal resulted from a dispute over DORIS tax assessment of threegrain elevators owned by United. These elevators are all located in easternMontana; one is inMacon, one is in Sprole,and the other is in Kershaw. United appealed DORIS 1986, 1987, and 1988valuationsof the elevatorsto the County Tax Appeal Board oftheappropriatecounties. United thenappealedeach countyboard's decisionto STAB. The separate appealswere consolidatedand tried before STAB. STAB issued three separate decisions with separate findings of fact and conclusions of law. United then appealed STAB'S orders to the District Court. United moved to consolidate; the District Court granted themotion on September 13, 1989. On June 21, 1990, the District Court issued its order on United's appeal. First, the District Court reversed STAB'S conclusion of law I and concluded that United's grain elevator machinery should be classified as class four rather than class eight. STAB'S conclusion of law I states: "The Board finds that the machinery and equipment is properly classified by the DOR as class eight personal property, based on its use in moving raw material throughan industrial distributionprocess." TheDistrict Court held that the machinery was not used in a manufacturing process, and, therefore, concluded that it could not be properly classified as class eight. From this decision, DOR appeals. Second, the court reversed and remanded STAB'S valuation of the machinery which is part of the Macon and Kershaw elevators, and held that STAB'S finding of fact I11was clearly erroneous and prejudiced United. The District Court held the following: The appraiser [for DOR] also rated the elevator [Kershaw] as excellent because he assumed that the elevator was capable of loading out 30,000bushels of grain per hour.

[N]o evidence substantiates accepting DORIS figure incorporating Kershawlsalleged 30,000 bushel per hour capacity. This is clearly erroneous and substantiallyaffects the rights of United Grain.

[Tlhe value of what STAB terms "personal property111 should be adjusted to reflect that Macon [and Kershaw] has only a 15,000bushel per hour capacity and not a 30,000bushel capacity. The Court will not pursue this calculation in either the Kershaw or Macon case but leaves itto STAB toperformthemathematicalgymnastics. From this decision, DOR appeals. Third, the court affirmed STAB in all other respects, including STAB'S adoption of DOR1svaluation method. From this particular decision, United appeals, arguing that its proposed llincomen method should have beenused tovalue its elevatorsrather than the "cost replacement" method proposed by DOR. Additional factswill be discussed as necessary.

STANDARD OF REVIEW This Court has interpreted 

### 5 2-4-704,MCA, the standard for judicial review of an administrative ruling, to mean that an agency

## 's findings of fact are subject to a ''clearly erroneous1' standard while an agency's conclusions of law are subject to the broader "correct interpretation1' standard. Steer, Inc. v. Department of Revenue (Mont. 1990), 803 P.2d 601, 603, 47 St.Rep. 2199,2200. Under the 'Icorrectinterpretation"standardasapplied to conclusions of law, our standard of review will be merely to determine if the agency's interpretation of the law is correct.

I~he court refers to STAB'S finding of fact I11 and resulting order which incorporates DOR1sappraisal of United's ''personal property1'at $205,689 for 1986, $216,169 for 1987 and at $181,102 for 1988.1 'I Steer at 603.

The first issue for review is whether DORIS valuation of United's elevators was proper. United contends that DOR erred in using the cost replacement method to evaluate United's three elevators, and asserts that the income method should have been used:Wewill not evaluate the advantages and disadvantagesof aparticular assessmentmethod as applied to a taxpayer. "Tax appeal boards are particularly suited for settling disputes over the appropriate valuation of a given piece of property or a particular improvement, and the judiciary cannotproperly interfere with that function." (Citationsomitted) Assessment formulations are within the expertise of the State Tax Appeal Board and we will not overturn their decisions unless there is a clear showing of an abuse of discretion. Northwest Land v. State Tax Appeal Board (1983)

### , 203 Mont. 313, 317, 661P.2d 44,47. DORhasdetermined that the costreplacement method is the most appropriate method of measuring the value of hard assets and has promulgated rules to that effect. We have reviewed the entire record and find that United has not overcome its burden to show clear abuse in DORIS application of the cost replacementmethod to determine themarket value of the elevators. Therefore,wehold thattheDistrict Court properly affirmed STAB'S valuation of United's elevators based on the cost replacement method.

I1 The second issue is whether the District Court erred in 5holding that the machinery used in conjunction with United's elevators is taxable as class four, rather than class eight, property. All taxableproperty inMontana is classified under Title 15, Chapter 6, Part 1, MCA, according to its use and type, for the purpose of determining the taxable value of theproperty. Section 15-6-138,MCA, provides: (1) Class eight property includes:

(c) all manufacturing machinery, fixtures, equipment, tools that are not exempt under 1-6-201(1) (r), and supplies except those included in class five. On the other hand, 5 15-6-134,MCA, together with ARM 42.22.1303, requires that if themachinery is used in a storage facility it is properly classified as class four. Themachinery thatmoves the grain in and out of the elevator storage bins is at the heart of this dispute. This machinery is used to carry grain from the trucks into the storagebins and out again. It is much like a conveyorbelt with buckets which carries the grain from one place and dumps it off at another. The machinery is designed specifically for a particular elevator. United argues that the machinery is part and parcel of the storage facilities and, therefore, an improvement to the land pursuant to ARM 42.22.1303 and classified as class four. Furthermore,United argues that the machinery is not involved in

a manufacturing process and, therefore, cannot be classified as class eight. DOR, on the other hand, contends that themachinery

### should be within class eight, arguing that it is part of a manufacturing process. The fact that the grain elevators are used as storage facilities isnot contestedby eitherparty. What is contested is whether the conveyor belts and other machinery, which are used to merely transport thegrain into and out of the storage facilities,

are involved in a manufacturing process. We think not. The outcome here depends upon the definition of the word llmanufacturingu in § 

### 15-6-138, MCA. 

### Manufacturing machinery is that flusedto transform raw or finished materials into something possessing a new nature or name and adapted to a new use." ARM 42.22.1305. Therefore, the question iswhether or not the subject machinery fits within the above definition of the word "manufacturing

# .l1 

### Regarding the machinery of the Sprole elevator, the record shows that United used this facility for the sole purpose of storing its crop. No other activity went on at this elevator. Grainwasmerely dumped intothiselevator for storageuntil itwas finally sold on the market at a later date. The simple movement of grain from the truck to a storage bin does not constitute manufacturing. Manufacturing property requires more than mere movement of grain from one place to another; there must be a transformation. ARM 

### 42.22.1305. Such an activity does not occur at the Sprole elevator. Therefore, STAB1sconclusion that this machinery belongs to class eight is incorrect. As such, we hold that the District Court properly reversed STAB1sdecision in thisregard. considering the Macon and Kershaw elevators, the grain at these elevators is stored,aswell asmixed,occasionally, in order to obtain a grain of a particular protein content. DOR contends that this mixing is enough to constitute manufacturing. We disagree, and hold otherwise. A review of case law indicates that whether a process constitutes llmanufacturingfl turns upon whether the end product of the disputed process is flsignificantly changedff from the original substance. Reynolds Metal Co. v. State Tax commission (Wash. 1965), 400 P.2d 310, 314; Bornstein Sea Foods, Inc. v. State Tax Commission (Wash. 1962), 373 P.2d 483, 486. The statutes do not define llmanufacturingfl but the administrative regulations define ffmanufacturing property"as that Ifusedto transformraw or finished materials into something possessing a new nature or name and adopted to a new use.f1 

### ARM 42.22.1305. Furthermore, Webster defines Iltransf~rrn~~ as l1tochange in composition or stru~ture~~ or "to change in character or condition. If Webster s New Collegiate Dictionary The District Court concluded that: No transformation takes place at the Macon and Kershaw elevators. The grain is not cleaned, aerated, or milled. Occasionally, grains of differing protein content may be mixed to create a grain of a desired content but the grain is not mixed with other chemicals or incorporated into some other material. The product that goes into the storage bins is virtually identical to the product that comes out. There is no new name, nature, oruse. While sometype of processingmay go on at theelevators,ffmanufacturingll as it isdefined inARM 42.22.1305 does not. Therefore, it is the opinion of this Court that the disputed property cannot be placed

### in class eight asmanufacturing property. Rather it is part and parcel of the storage facilitiesand belongs in class four as an improvement to land. Mixing grains of

### varying protein contents doesnotproduce an end product that is significantly changed. We, therefore,agree with the District Court's reasoning and holding as set out above. The Macon and Kershaw elevators are storage tanks and the occasional mixing of the grain does not turn these facilities,or the respective machinery, into manufacturing property. In the alternative, DOR argues that the machinery should be class eight property under the catch-all provision of 5 

### 15-6- 138(1) (g)

### , MCA (1985). Section 15-6-138,MCA (1985) states: (1)Class eight property includes:

(g) all other machinery exceptthatspecificallyincluded in another class. DOR argues that the District Court erred because it did not consider this provision when classifying the machinery. To the contrary, the District Court specifically held that the machinery Itispart and parcel 

### of the storage facilitiesand belongs in class four as an improvement to land.'' As such, the District Court concluded that themachinery is lgspecifically included in another class1' and,therefore, does not fallwithin the catch-allprovision of § 

### 15-6-138(1)(g), MCA (1985). We have adopted the District Court's holding and, therefore, conclude that the machinery is specifically included in class four as an improvement to land.I11 The last issue raised by 

### DOR is whether the District Court erred in ordering STAB to recalculate the value of the elevators based on the findings of the District Court regarding the rating of the facilities. With regard to the elevators at Kershaw and Macon, the department's appraiser, Gary Spaulding, rated the elevators as excellent. The record shows that the appraiser based this llexcellentll rating on his mistaken belief that these elevators, together with their machinery, could unload grain into freight cars at a rate of 30,000bushels per hour. Apparently the appraiser assumed that because there were two legs2 that each could run 15,000 bushels per hour, the facility had a 30,000bushel per hour capacity. United contends that its elevators can only load at a rate of 15,000bushels per hour. At 15,000bushels, the equipment would be rated as I1goodl1rather than llexcellentll and its value would drop. At the STAB hearing, Bill Rittal of Great Falls, Montana, supervisor for United, testified that the capacity was rated at 15,000 bushels per hour, even though the elevators had two legs each of which where capable of handling 15,000bushels per hour. He explained that even though the legs can run simultaneously,only

one is capable of moving grain at any particular time because the conveyor from the two adjacent tanks can only run into one leg at 

### he lllegsll of the elevator function much like a conveyor belt; they transport grain into and out of each particular storage bin. 10a time. He testifiedthatwithout major design changesneither the Macon nor the Kershaw elevator has the capacity to load 30,000 bushels per hour. DOR admits in its brief that the elevators have a load capacity of less than 15,000 bushels per hour: Even though the maximum capacity might be 15,000rather than 30,000,there is still the ability of the elevator to load out two-52 car trains in a 24 hour period. Although it is not obvious at first glance, simple arithmetic establishes the fact that an elevator which can load out two 52- car trains in a 24-hour period can load out at a rate of approximately 14,000bushels per hour. This fact is illustrated by Mr. Rittal'stestimony at the STABhearing as follows: There are elevators with more than two legs in them and they don't take the combination of those legs 

# . . . testimony was given yesterday that it takes 12 hours to load a 52 car unit train. There's 172,000bushel in a 52 car unit train. If it takes 12 hours, that computes out to about a little over 14,000bushel per hour. That is what our houses are rated at 

# . . . 

# . The foregoing evidencewas ignoredby STAB in its findingsand conclusions. Further, no evidence substantiates accepting DORIS figure which incorporates this alleged 30,000 bushel per hour capacity. We, therefore, conclude that STAB'S finding in this regard is clearly erroneous. Since this finding directly impacts

on the amount of taxes United owes, we also conclude that the

erroneous finding substantially affects the rights of United. Therefore, we hold that this finding, according to Rule 52(a), M.R.Civ.P., was properly set aside by the District Court in favor of its own finding, which is supported by substantial, credibleevidence, thatthesubject elevatorshave a load capacity of 15,000 bushels per hour. Furthermore, we hold that the District Court properly remanded this case to STAB with instructions that the value of what STAB terms vvpersonal propertyvvshould be properly adjusted, inevery respect, toreflect its findings thattheMacon and Kershaw elevators have a load capacity of only 15,000, rather than 30,000, bushelsperhour. We have reviewed the entirerecord

on appeal and find no error. The ~istrict Court is hereby affirmed.

We concur:

V~hie'f Justice