noting that taxpayer did not 2 clearly establish a right to the deduction because, if the statute clearly and 3 unambiguously authorized the deduction, the court would not have had to construe 4 the phrase, “initial use”
How later courts described this case
- noting that taxpayer did not 2 clearly establish a right to the deduction because, if the statute clearly and 3 unambiguously authorized the deduction, the court would not have had to construe 4 the phrase, “initial use”
Written by the judges who cited it.
The opinion
SPIESS, Chief Judge (dissenting).
I am unable to concur in the opinion announced by the majority and respectfully dissent.
The majority, in affirming the decision of the Commissioner, have treated the term “initial use” [§ 72-16A-14.12, N.M.S.A. 1953 (Repl. 10, pt. 2, Supp.1969)] involving a delivery truck used exclusively by its owner for delivery of bread in Texas, as the equivalent of “driving the truck.” Upon this premise, the majority conclude that driving the truck from New Mexico to Texas constituted the initial use of the product of the service (repair work) in New Mexico.
To my mind, the premise is unsound in that the words “use” and “driving” (operating), which the majority appear to treat as synonymous, are, as employed here, words of different meaning. The word “use,” particularly of a truck by its owner, relates to the utilization of the vehicle for the purpose or objective of the owner. Driving the vehicle from the repair shop in New Mexico to the point where it was to be employed as a delivery truck in the state of Texas would be in aid of its use and not its use. Driving or operating simply means controlling the mechanism to the end that the vehicle will travel from place to place, and is not, under the facts involved here, the purpose or objective of the owner.
The definition of the word “use” as a noun, is, according to Webster’s New International Dictionary, 2d ed., the “(1) [a]ct of employing anything, or state of being employed; application; employment; as, the use of a pen * * *” “(7) [fJunction; particular service; as, everything in nature seems to have its use.”
Random House, to which the majority refer, defines the word as the act of employing, using, or putting into service; the state of being employed or used; an instance or way of employing or using something; a way of being employed or used; a purpose for which something is used.
According to the New Century Dictionary, to make use of is, “to employ, put to use for one’s own purpose or advantage.”
Accordingly, I think the legislature intended the word “use” to mean the employment of the product of the service for the purpose or objective of the owner, which, in this case, as stated, was for the delivery of bread in Texas. The initial use consequently would have occurred in Texas and not New Mexico.
In my view, the taxpayer’s right to a deduction is clearly established by the record. The nontaxable transaction certificate should have been accepted by the Commissioner and the deduction allowed.
I would reverse.