Southwestern Bell Yellow Pages, Inc. v. Director of Revenue

RICHARD B. TEITELMAN, J.,

dissenting.

I respectfully dissent from the majority’s decision to overrule the IBM case and this Court’s longstanding interpretation of section 144.610.1.

For over 35 years, this Court’s decision in IBM has stood for the proposition that the use tax prescribed by section 144.610 does not apply to any article, whether raw or completed, if it “was never used in the state as such.” IBM, 408 S.W.2d at 836. During this time, the General Assembly, which is presumed to act with full awareness and complete knowledge of the law, *393has repeatedly declined to revise section 144.610.1 and has left the IBM rule intact.

Because the General Assembly has not amended the statute to overrule the IBM case, this Court should presume that it knew of and adopted the IBM rule. State v. Pritchard, 982 S.W.2d 273, 277 (Mo.banc 1999); State ex rel. Howard Elec. Coop. v. Riney, 490 S.W.2d 1, 9 (Mo.1973); Duckworth v. U.S. Fidelity & Guaranty Co., 452 S.W.2d 280 (Mo.App.1970). Under these circumstances, it is the prerogative of the General Assembly, not this Court, to modify section 144.610.1. This Court should not interject itself into the province of the legislature and interrupt the settled expectations of Missouri taxpayers subject to the use tax.

Additionally, the majority’s reliance on Southwestern Bell Telephone v. Director of Revenue, 78 S.W.3d 763 (Mo. banc 2002), as authority for expressly overruling existing precedent is misplaced. Bell is distinguishable. Unlike today’s opinion, the Bell opinion did not squarely overrule longstanding, existing precedent. Instead, in Bell, this Court simply discarded dicta from an earlier case, GTE Automatic Elec. v. Dir. of Revenue, 780 S.W.2d 49 (Mo. banc 1989), in interpreting the term “manufacturing” in another tax statute, section 144.030.2, RSMo Supp.1992. Bell, 78 S.W.3d at 767-68. Furthermore, in overruling the dicta, this Court acted within a 3-year window in which the legislature could have responded to that dicta, but here, the window for legislative response was 30 years, a stronger indication of legislative acceptance of this Court’s position.1

I would affirm the Administrative Hearing Commission’s decision ordering the refund of the use tax paid by Southwestern Bell.

. Although decided in 2002, the tax year at issue in Bell was 1992. Thus, in interpreting section 144.030.2, this Court was only concerned with the 3-year window spanning our 1989 decision in GTE and the 1992 version of the statute.