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Mal Brothers Contracting Co. v. Director

Decided: May 11, 1973.

MAL BROTHERS CONTRACTING COMPANY, PETITIONER-APPELLANT,
v.
DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, RESPONDENT-APPELLEE



Kolovsky, Matthews and Crahay. The opinion of the court was delivered by Kolovsky, P.J.A.D.

Kolovsky

Petitioner appeals from a judgment of the Division of Tax Appeals which affirmed the determination of the Sales Tax Bureau of the Division of Taxation that petitioner was obligated, under the provisions of the Sales and Use Tax Act, L. 1966, c. 30; N.J.S.A. 54:32B-1 et seq. (the act), to pay, for the period from July 1, 1966 to December 31, 1968, sales taxes totalling $27,589.45 (besides penalties and interest) on rentals it had paid for leased road building equipment.

The essential facts are undisputed.

Subsequent to the effective date of the act, July 1, 1966, petitioner, a road building contractor, had entered into a contract with the Port of New York Authority for the construction of a highway in the "Port of New Jersey." It leased from "Furnival," a Pennsylvania company, equipment used "for the purpose of moving sand." The leased

equipment, which petitioner used only in performance of the Port Authority contract, was operated by persons employed by it.

Petitioner's primary contention is that the rentals paid by it for construction equipment used in performance of its contract with the Port Authority are exempted from taxation by the provisions of section 8(w), N.J.S.A. 54:32B-8(w), a paragraph added to the original act, prior to its effective date, by L. 1966, c. 53. In addition, it contends that "a lease of construction 'equipment' is not a 'retail sale' within the ambit of N.J.S.A. 54:32B-2 and is therefore not taxable under the provisions of N.J.S.A. 54:32B-3." We shall consider the contentions in reverse order.

The act, insofar as here pertinent, imposes a tax at specified rates upon "the receipts from every retail sale of tangible personal property, except as otherwise provided in this act." N.J.S.A. 54:32B-3(a).

The words used in the quoted clause are defined in N.J.S.A. 54:32B-2 which provides:

Unless the context in which they occur requires otherwise, the following terms when used in this act shall mean:

[For purposes of clarity, we deviate from the sequence of definitions appearing in the section.]

(g) Tangible personal property. Corporeal personal property of any nature.

(f) Sale, selling or purchase. Any transfer of title or possession or both, exchange or barter, rental, lease or license to use or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor, including the rendering of any service, taxable ...


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