(concurring in the result).
I concur in the result.
Taxpayer was engaged in using trucks owned by the taxpayer to haul a variety of construction materials for certain prime contractors who entered into construction contracts with the New Mexico Highway Department to build highways in New Mexico.
The Commissioner made extensive findings which accurately stated the facts. Based upon G.R. Regulation 3(C)-1 — , his decision was correct. By petition for certiorari to the Supreme Court, his decision will be sustained and this opinion will not be published. Nevertheless, I desire to express my views to be preserved for future use. This case is one of first impression in New Mexico and deserves serious consideration.
The Commissioner held that taxpayer was subject to the gross receipts tax because “the taxpayer only hauled or transported personal property from one place to another. After delivering the personal property to a designated place, others, not the taxpayer, began or continued the function of building a highway.” In other words, “this taxpayer did not ‘build’ anything.”
Section 7-9-52(A), N.M.S.A.1978 reads in pertinent part:
Receipts from selling a construction service may be deducted from gross receipts if the sale is made to a person engaged in the construction business
The sole issue on this appeal is whether taxpayer sold a “construction service” to a highway contractor engaged in building a highway. If taxpayers did sell this “construction service, it is exempt from payment of the gross receipts tax.
My dispute with the Commissioner revolves over the meaning of “construction service.” His view is narrow — mine is broad. It is obvious that a Commissioner will narrowly interpret the statute if it will provide additional revenue for public purposes. My criticism of the office of a Commissioner has been stated many times. See Ealey v. Bureau of Revenue, 89 N.M. 174, 548 P.2d 454 (Ct.App.1975), Sutin, J., specially concurring, rev’d, 89 N.M. 160, 548 P.2d 440 (1976). Taxes are the sinews of the State and taxpayers sustain the operation of the State and its political subdivisions. But the office of the Commissioner was not created for the purpose of unduly burdening the taxpayer by a narrow interpretation of the statute. He must hold a genuinely impartial hearing conducted with critical detachment. This is psychologically improbable if not impossible when the Commissioner has at once the responsibility of appraising the strength of the ease and seek to make it as strong as possible in favor of the State.
The Commissioner sits as a judge in an adversary proceeding between the State and the taxpayer. The Commissioner must not be arrayed against the taxpayer. Yet it is his attorney that represents the State and it is the advice of his attorney that becomes the Decision of the Commissioner. If a decision of the Commissioner was ever favorable to the taxpayer, the State has never appealed the decision to this Court. This administrative process establishes the fact that the Commissioner and the State are one entity arrayed against the taxpayer.
The duty of the Commissioner and his attorney is to construe language of doubtful meaning in the Act in favor of the taxpayer and most strongly against the taxing authority. Western Elec. Co. v. N. M. Bureau of Rev., 90 N.M. 164, 561 P.2d 26 (Ct.App.1976), Sutin, J., specially concurring; Torridge Corporation v. Commissioner of Revenue, 84 N.M. 610, 506 P.2d 354 (Ct.App.1972), Sutin, J., dissenting.
One of the purposes of the Act “is to provide revenue for public purposes by levying a tax on the privilege of engaging in certain activities within New Mexico . [Emphasis added.] Section 7-9-2. This purpose should not be accomplished with “semantic niggling.” Cardinal Fence Co., Inc. v. Commissioner Bur. of Rev., 84 N.M. 314, 502 P.2d 1004 (Ct.App.1972), Sutin, J., dissenting. These “certain activities” constitute a business operation because an excise tax is imposed upon any person engaged in business in New Mexico. Section 7-9 — 4.
A contractor engaged in the business of building a highway is confronted with many “construction activities” upon all of which income the contractor is subject to the excise tax. To avoid a double tax, one who sells a “construction service” to the contractor may deduct all monies received from gross receipts. In the instant case, the Commissioner seeks to impose a double tax.
The words “construction service” mean “construction activities” engaged in for other persons for a consideration. Section 7-9-3(K). “Construction activities” are words of doubtful meaning and must be construed in favor of the taxpayer. A reasonable interpretation of the words leads to the conclusion that the taxpayer is exempt from taxation if he sells to a prime contractor a service that falls within the circumference of all of the “construction activities” of the contractor. I take this view to avoid the doctrine of double taxation.
Under Section 9(b) of the Atomic Energy Act of 1946, the “activities” of the Atomic Energy Commission were exempt from state taxation. The word “activities” was given such broad and comprehensive meaning that independent contractors who performed sub-contract construction work for the Commission were exempt from state sales and use taxes. Reynolds Electrical & Engineering Co. v. Lujan, 64 N.M. 43, 323 P.2d 890 (1958). For the broad definition of the term “activities,” see Carbide & Carbon Chemicals Corp. v. Carson, 192 Tenn. 150, 239 S.W.2d 27 (1951); aff’d, Carson v. Roane-Anderson Co., 342 U.S. 232, 72 S.Ct. 257, 96 L.Ed. 257 (1952), cited in Reynolds.
In the instant case, the prime contractor is comparable to the Atomic Energy Commission, and taxpayer, a subcontractor who sells his “construction activities” to the prime contractor, is comparable to those who did construction work for the Commission.
Section 7-9-3(C) defines “construction” as building a highway in the ordinary course of business. This definition relates to the work performed by the prime contractor. To complete satisfactory performance of the work, all labor, materials and equipment are essential. When a contractor bids for a highway job, its “construction activities” includes hauling by truck hot mix, base course, aggregate and other materials. Without this service, the highway cannot be built. This type of “activity” is a part of the construction process. It is of necessity a “construction activity.”
The Commissioner contends that the taxpayer must “build” some part of the highway to constitute a “construction activity”; that all contract work performed prior to, during or after the completion of the highway that is not manual labor used in the actual construction of the road is not a “construction activity.”
The Commissioner holds that a concrete pumping truck which lays down concrete in inaccessible locations such as a box culvert or the upper stories of a building, performs a “construction activity.” If taxpayer had dumped the materials upon the roadway instead of by the side of it, would he have been entitled to the exemption? Where shall the line of demarcation be drawn?
To adopt the Commissioner’s interpretation of the words “construction activities” unduly limits the meaning of the words. I interpret the Commissioner’s view to mean that “construction activities” do not begin until the materials hauled to the job are actually used to build the highway. To me, this is a rather narrow view. The taxpayer sold a construction service to the prime contractor and he is entitled to the benefit of Section 7-9-52(A).