CASTLE CORP. v. REV. DEPT., 142 Wis.2d 716 (Ct.App. 1987)

419 N.W.2d 709

Court of Appeals of Wisconsin.
No. 87-0368.Submitted on briefs November 6, 1987. —
Decided December 23, 1987.

APPEAL from a judgment of the circuit court for Dane county: P. CHARLES JONES, Judge. Reversed and cause remanded.

For the petitioner-appellant the cause was submitted on the briefs of Daniel W. Hildebrand and Ross Stevens, S.C., of Madison.

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For the respondent the cause was submitted on the brief of Donald J. Hanaway, attorney general, an Alan Lee, assistant attorney general.

Before Gartzke, P.J., Dykman and Eich, JJ.

DYKMAN, J.

Castle Corporation appeals from a judgment affirming a Tax Appeals Commission (TAC) order requiring Castle to pay income tax on the total gain of an instalment sale of real estate in the year of sale, even though Castle only received approximately thirty-seven percent of the purchase price that year. The dispositive issue is whether the thirty percent rule found in Wis. Adm. Code, sec. Tax 2.19(1)[1] is invalid because it exceeds the bounds of correct interpretation of sec. 71.11(8), Stats., thus violating sec. 227.11(2)(a), Stats.[2] Because we conclude Wis.

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Adm. Code, sec. Tax 2.19(1) violates sec. 227.11(2)(a), we reverse.

Castle sold land to the city of Oshkosh for $744,072 in February of 1982.[3] By year’s end, Castle had received $274,802.40, approximately thirty-seven percent of the purchase price. Castle reported the transaction on its federal and state income tax returns for the year ending December 31, 1982 as an instalment sale, thus deferring taxes on $319,349.31, the balance of the gain on the sale.[4]

On audit, the Wisconsin Department of Revenue (DOR) disallowed deferral of the $319,349.31 because the payments Castle received in 1982 exceeded thirty percent of the selling price. Wis. Adm. Code, sec. Tax 2.19. The DOR added the $319,349.31 to Castle’s income for 1982, concluded that Castle had received $497,538 income in 1982, applied the appropriate tax rate, and issued Castle a “Notice of Amount Due.”[5] On

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review, TAC affirmed the DOR. On judicial review, the circuit court affirmed TAC.

The interpretation of an administrative rule is a question of law which we review de novo. Falls Communications v. Rev. Dept., 131 Wis.2d 545, 547, 389 N.W.2d 65, 66 (Ct.App. 1986). However, we defer to the DOR’s interpretation of a rule and sustain its legal conclusion if it is reasonable, even though an alternative view may be equally reasonable. Id.

Section 71.11(24)(a), Stats., provides: “The department of revenue may make such rules and regulations as it shall deem necessary in order to carry out this chapter.” The issue is whether Wis. Adm. Code, sec. Tax 2.19(1) carries out the purpose of sec. 71.11(8). Section 71.11(8)(a) provides:

The income and profits of corporations for the income year shall be computed in accordance with the method of accounting regularly employed in keeping the books of the taxpayer, but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made upon such basis and in such manner as in the opinion of the department of revenue does clearly reflect the income.

Wis. Adm. Code, sec. Tax 2.19(1) provides in part: “Subject to the approval of the department of revenue, a sale . . . by a corporation of real property . . . for a price exceeding $1000, may be reported on the instalment basis . . . provided that in the income year of the sale . . . the payments . . . do not exceed 30% of the selling price.”

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In construing a statute we are to give effect to the legislative intent. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 538, 345 N.W.2d 389, 394 (1984). The language of sec. 71.11(8)(a), Stats., is unambiguous and we need look no further to establish legislative intent Id. The DOR must accept and use a method of accounting that “clearly reflects corporate] income.”[6]
Although the DOR argues that the rule at issue has been substantially in its present form for over forty years, this argument is not compelling:

“An administrative rule, even of long duration may not stand at variance with an unambiguous statute. State ex rel. Irany v. Milwaukee County Civil Service Comm. (1962), 18 Wis.2d 132, 135, 118 N.W.2d 137; Plain v. Harder (1955), 268 Wis. 507, 68 N.W.2d 47. In the latter case, at page 551, this court said:
“`The rule-making power does not extend beyond the power to carry into effect the purpose as expressed in the enactment of the legislature. `A rule out of harmony with the statute is a mere nullity.”” (Emphasis supplied.) Basic Products Corp. v. Department of Taxation, 19 Wis.2d 183, 186, 120 N.W.2d 161 (1963).

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Department of Revenue v. Howick, 100 Wis.2d 274, 280-81, 303 N.W.2d 381, 384 (1981).

Wis. Adm. Code, sec. Tax 2.19(1) contradicts the express purpose of sec. 71.11(8)(a), Stats., by requiring a method of accounting which distorts corporate income rather than clearly reflecting it.[7] Because Wis. Adm. Code, sec. Tax 2.19(1) “exceeds the bounds of correct interpretation,” thus violating sec. 227.11(2)(a), Stats., we reverse.

By the Court. — Judgment reversed and cause remanded for proceedings consistent with this opinion.

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