Wisconsin Department of Revenue v. River City Refuse Removal, Inc.

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2007 WI 27 SUPREME COURT CASE NO.: OF WISCONSIN 2004AP2468 COMPLETE TITLE: Wisconsin Department of Revenue, Petitioner-Respondent-Petitioner, v. River City Refuse Removal, Inc., Respondent-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS 2006 WI App 34 Reported at: 289 Wis. 2d 628, 712 N.W.2d 351 (Ct. App. 2006 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: March 8, 2007 October 13, 2006 Circuit Dane Gerald C. Nichol ABRAHAMSON, C.J., dissents (opinion filed). BRADLEY, J., joins the dissent. NOT PARTICIPATING: ATTORNEYS: For the petitioner-respondent-petitioner the cause was argued by F. Thomas Creeron III, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general. For the respondent-appellant there was a brief by James R. Lowe, Barbara J. Janaszek, and Whyte Hirschboeck Dudek S.C., Milwaukee, and oral argument by Barbara J. Janaszek. An amicus curiae brief was filed by Timothy G. Schally, Robert A. Schnur, and Michael Best & Friedrich LLP, Milwaukee, on behalf of the Milwaukee Symphony Orchestra, Inc., the Milwaukee Ballet Company, Inc., the Florentine Opera Company, Inc., the Skylight Opera Theatre Corp., and the United Performing Arts Fund, Inc. 2007 WI 27 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP2468 (L.C. No. 2003CV2774) STATE OF WISCONSIN : IN SUPREME COURT Wisconsin Department of Revenue, FILED Petitioner-Respondent-Petitioner, v. MAR 8, 2007 River City Refuse Removal, Inc., A. John Voelker Acting Clerk of Supreme Court Respondent-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 JON P. WILCOX, J. Affirmed. This is a review of a published court of appeals decision, Wisconsin Department of Revenue v. River City Refuse Removal, Wis. 2d 628, 712 N.W.2d 351. Inc., 2006 WI App 34, 289 The court of appeals reversed the order of the Dane County Circuit Court, Gerald C. Nichol, Judge. The circuit court had reversed the Tax Appeals Commission (Commission) order and reinstated the assessment made by the Wisconsin Department of Revenue (Department). ¶2 fixed Two issues are before this court. assets River City Refuse Removal, First, whether the Inc. (River City) No. received through intercompany transfers with 2004AP2468 wholly-owned subsidiaries of its parent company are subject to use tax. We hold that they are not in this case because of the lack of the requisite "retailer" or "purchase" necessary for the transfers to fall within the scope of Wis. Stat. § 77.53(1)(1993-94).1 ¶3 Second, whether River City satisfied its burden to show that its nonpayment of taxes was due to good cause and not due to neglect, pursuant to Wis. Stat. § 77.60(3). River City satisfied its burden. negligence penalty. We hold that River City need not pay a Accordingly, we affirm the court of appeals. I. ¶4 River Wisconsin Claire, BACKGROUND City was a law, with its principal place It collected refuse Wisconsin.2 Wisconsin for Wisconsin residences consumer use stock and tax corporation of business and businesses. permit, organized which in Eau recyclables River is under City in held required a for businesses that regularly acquire taxable items from sellers who do not collect tax. 1 All subsequent references to the Wisconsin Statutes are to the 1993-94 version, unless otherwise stated. 2 River City was organized in 1978 as a wholly-owned subsidiary of Browning-Ferris Industries (BFI). In October 1997 all BFI subsidiaries were combined into one entity: BFI Waste Systems of North America, Inc. We refer to River City throughout this opinion because it was the business entity at the time of the audit at issue in this case. 2 No. ¶5 Ferris 2004AP2468 River City was a wholly-owned subsidiary of BrowningIndustries corporation, which (BFI).3 had BFI a was number a of publicly other traded wholly-owned subsidiaries in a number of different states (BFI subsidiaries), including Browning-Ferris Industries of Wisconsin, Inc. (BFI- Wisconsin); Town & Country Waste, Inc.; Troy Area Landfill; BFI of Illinois; Woodlake Sanitary Service, Inc.; Browning-Ferris Industries of Minnesota, Inc.; and BFI Medical Waste Systems of Minnesota, Inc. ¶6 BFI and its subsidiaries were accrual basis taxpayers, meaning they recognized transactions at the time they occurred. Accounting entries for a liability or expense were made irrespective of the receipt or disbursement of a payment. ¶7 BFI maintained consolidated financial statements for all of its wholly-owned subsidiaries. Such a practice is in accordance with generally accepted accounting principles (GAAP). BFI also filed a consolidated federal income tax return for all of its wholly-owned subsidiaries. River City filed a separate Wisconsin tax return, pursuant to state law.4 ¶8 BFI would assess the equipment needs of its subsidiaries and direct the transfer of assets accordingly. For 3 Allied Waste Industries, Inc., which trades on the New York Stock Exchange, bought out BFI in August of 1999 for a reported $9.1 billion dollars. 4 Wisconsin adheres to the legal-entity theory, which requires "each separate legal entity . . . to file its own separate return." Interstate Fin. Corp. v. Dep't. of Taxation, 28 Wis. 2d 262, 273, 137 N.W.2d 38 (1965). 3 No. 2004AP2468 accounting purposes, three sets of books would be involved: the sending subsidiary's, the receiving subsidiary's, and BFI's. The subsidiaries each had an intercompany payables account and an intercompany receivables account. would add payables the net book Net account. value book of The receiving subsidiary assets value to would its be intercompany arrived at by subtracting the accumulated depreciation previously taken by the sending subsidiary from sending subsidiary would the original subtract intercompany receivables account. the purchase same price. value from The its Subsidiaries did not exchange money for the intercompany transfers. BFI took responsibility for reconciling each subsidiary's receivables and payables in BFI's books, with the intercompany transfers netting zero on BFI's consolidated financial statement. ¶9 After the intercompany transfer, the subsidiary would continue to depreciate the assets. book value would be used as the initial cost basis. receiving The net Any gains over the initial cost basis would be reported as income if the assets were sold. ¶10 In BFI's Policy and Procedure Manual, BFI identified tax liability as a potentially adverse effect of intercompany transfers. The manual warned that "such transfers may inadvertently trigger foreign and U.S. tax consequences without careful study." ¶11 River City took part in intercompany transfers. When River City received fixed assets from other BFI subsidiaries, it would receive all rights to, and ownership of, the transferred 4 No. assets. 2004AP2468 River City would retitle the assets in its name and recognize the transfers in its financial records. tax at the time of retitling. It paid no In recognizing the transfers, River City followed the procedure provided by BFI. ¶12 The Department audited River City from October 1993, to September 30, 1997 (period under review). 1, The audit identified five categories of transactions for which River City did not pay use tax: (1) purchases of miscellaneous items; (2) purchases of motor fuel with respect to which the Department had issued Wis. Stat. § 78.75 motor fuel tax refunds; (3) transfers of non-fixed assets tangible personal posters, brochures, purchases of from other such property BFI as florescent recycling and subsidiaries, books, bulbs, waste including videos, and labels, containers; assets; reduction (4) (5) and transfers of fixed assets from other BFI subsidiaries, including trucks, tractors, and tractor-trailers that were between two and four years old. Related to the first category, River City did not appeal the audit. ¶13 Related to It conceded that it owed tax. the disagreed with the audit. latter four categories, River City Believing that River City needed to pay use tax, the Department sent River City a notice of field audit action (assessment), which assessed River City a total of $144,010.03. The total included $88,877.86 for unpaid use tax, $32,912.70 for interest, and $22,219.47 as a negligence penalty. The assessment covered the period under review. ¶14 After receiving the Department's assessment, River City filed a petition for redetermination with the Department's 5 No. appellate bureau. 2004AP2468 In the petition, River City contended that the intercompany transfers were not subject to use tax, the recycling and waste reduction assets were exempt from the use tax, and that the audit had miscalculated the motor fuel sales tax. The Department denied it. ¶15 review River City then filed a petition for the Commission to the Department's redetermination. intercompany assets. ¶16 The transfers denial petition and the of its sought petition review recycling and for related waste to reduction It did not seek review related to the motor fuel. As Wisconsin litigation and Browning-Ferris the related to Department Indus. of this case litigated Wisconsin, proceeded, similar Inc. v. BFI- issues. DOR, No. 2004AP3091, unpublished slip op. (Wis. Ct. App. June 28, 2001), aff'g slip op., No. 00-CV-418 (Dane Co. Cir. Ct. Sept. 28, 2000), aff'g Wis. Tax Rptr. (CCH) ¶400-469 (WTAC 2000), petition for review denied 2001 WI 117, 247 Wis. 2d 1036, 635 N.W.2d 784. In BFI-Wisconsin's case, the Commission reached the following conclusions of law: BFI-Wisconsin's recycling and waste reduction activities were not exempt from use tax, sales tax applied to its sales and rentals of compactors to customers, use tax did not apply to intercompany transfers, and the motor fuel tax applied. ¶17 After the Commission issued its order in Browning- Ferris Industries of Wisconsin, Wis. Tax Rptr. (CCH) ¶ 400-469 (WTAC 2000), the Department issued a notice of nonacquiescene related to the Commission's order pertaining to the intercompany 6 No. transfers. The Department Wis. Stat. § 73.01(4)(e)2. issued Its the effect notice was that 2004AP2468 pursuant although to the Commission's order related to intercompany transfers was binding in Browning-Ferris Industries of Wisconsin, Wis. Tax Rptr. (CCH) ¶ 400-469 (WTAC 2000), "the [c]ommission's conclusions of law, the rationale, and construction of statutes . . . related to the issue of the intercompany transfers [were] not binding upon or required to be followed by the [Department] in other cases." ¶18 BFI-Wisconsin appealed to the circuit court, but related to only the applicability of the recycling and waste reduction use tax exemption.5 Commission's order. The circuit court affirmed the Browning-Ferris Indus. of Wisconsin v. DOR, No. 00-CV-418, unpublished slip op., (Dane Co. Cir. Ct. Sept. 28, 2000). which the BFI-Wisconsin appealed the circuit court's order, court Wis. 2d 990. of appeals affirmed. Browning-Ferris, 246 BFI-Wisconsin's petition for review was denied by this court on September 19, 2001. Browning-Ferris Indus. of Wisconsin v. DOR, 2001 WI 17, 247 Wis. 2d 1036, 635 N.W.2d 784. 5 BFI-Wisconsin did not seek judicial review of the Commission's order as it related to either the taxability of the sales and rentals of compactors or the motor fuel tax. In providing context for this case, the Commission recounted the procedural history of Browning-Ferris Industries of Wisconsin. After explaining that the Department issued the notice of nonacquiescene, the Commission stated that BFIWisconsin "appealed the Commission's other conclusions of law." This seems to indicate that BFI-Wisconsin sought judicial review of the Commission's order related to the taxability of the compactors and motor fuel, which was not the case. 7 No. ¶19 course 2004AP2468 Based on the outcome of Browning-Ferris, during the of the Commission's review of this case, River City agreed to pay tax for both the recycling and waste reduction assets and transfers. the non-fixed assets received from intercompany Therefore, the Commission considered the taxability of only the transferred fixed assets and the applicability of the negligence penalty. ¶20 In considering the taxability of the fixed assets, and the applicability of the negligence penalty in this case, the Commission granted River City's motion for summary judgment. It concluded that intercompany transfers between BFI subsidiaries were not subject to use Wis. Stat. § 77.51(13) tax. The retailers Wis. Stat. § 77.51(12) purchase. and subsidiaries there were was not not a The Commission also concluded that River City had satisfied its burden of showing that its nonpayment neglect." of tax was Therefore, "due River to good City did cause and not not need to due pay to the Wis. Stat. § 77.60(3) negligence penalty. ¶21 The Department appealed to the circuit court. The circuit court reversed the Commission's order and it reinstated the assessment and the negligence penalty. In reviewing the Commission's order, the circuit court provided no deference to the Commission. Concerning the use tax issue, the circuit court characterized the issue as one of "very nearly first impression" that necessitated case law interpretation as much as statutory interpretation. assessed because It concluded that River City owed the amount the subsidiaries 8 were § 77.51(13) retailers No. 2004AP2468 and, pursuant to § 77.51(12)(a), River City purchased the fixed assets. ¶22 Concerning the negligence penalty, the circuit court reviewed the imposition of it de novo because it depended on the disposition of the use tax issue. directly The circuit court concluded that River City had not satisfied its burden and that the negligence penalty was properly imposed. ¶23 River City appealed to the court of appeals, which reversed the circuit court's Commission's ruling and order. order and reinstated the Related to the taxability of the intercompany transfers, the court of appeals concluded that the Commission's interpretation of the use tax statute was entitled to due weight deference. It held that the Commission's interpretation was reasonable and that the Department failed to offer a more reasonable interpretation. ¶24 Related to the negligence penalty, the court of appeals concluded that the Commission's interpretation of the penalty statute was entitled to great weight deference. that the Commission's determination that River It held City had satisfied its burden that its nonpayment was "due to good cause and not due to neglect" was reasonable. appeals reversed the circuit court Therefore, the court of and reinstated the Commission's ruling and order. ¶25 The Department sought review in this court, which we granted. II. STANDARD OF REVIEW 9 No. ¶26 This case requires us Wis. Stat. §§ 77.53(1) and 77.60(3). presents a question of law 2004AP2468 to interpret Statutory interpretation that we review de novo. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 659, 539 N.W.2d 98 (1995). In interpreting statutes, we primarily focus on the statutory language. County, 2004 WI State ex rel. Kalal v. Cir. Ct. for Dane 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; Id., ¶46. reasonably, to avoid absurd or unreasonable results." We assume that the legislature's intent. meaning, our Lincoln inquiry Sav. Bank, statutory language Id., ¶44. ceases S.A. and v. and expresses the When it manifests a clear we DOR, will 215 apply that Wis. 2d 430, meaning. 443, 573 N.W.2d 522 (1998). A. Ambiguity ¶27 Only when a statute is ambiguous do courts apply rules of statutory construction or look to extrinsic evidence of the legislature's intent, such as an agency's interpretation. Inc. v. LIRC, "'Statutory 201 Wis. 2d 274, interpretation 281, involves meaning, not a search for ambiguity.'" 548 the N.W.2d 57 UFE (1996). ascertainment of Kalal, 271 Wis. 2d 633, ¶47 (quoting Bruno v. Milwaukee County, 2003 WI 28, ¶25, 260 Wis. 2d 633, 660 N.W.2d 656). Ambiguity exists only when a statute reasonably gives rise to two or more interpretations. Bruno, 260 Wis. 2d 633, ¶25. Mere 10 disagreement about the No. 2004AP2468 meaning of the statute is not enough to constitute ambiguity. Kalal, 271 Wis. 2d 633, ¶47. "[W]hen a case comes before this court it is obvious that people disagree as to the meaning to be given to a statute. determine whether confused." This is not controlling. 'well-informed Recht-Goldin-Siegal persons' Constr., The court must could Inc. have v. been DOR, 64 Wis. 2d 303, 306, 219 N.W.2d 379 (1974). ¶28 In interpreting §§ 77.53(1) and 77.60(3), therefore, we first determine whether either is ambiguous. ¶29 The relevant part of Wis. Stat. § 77.53(1) provides that use tax is "[a]n excise tax . . . levied and imposed . . . on the storage, use or other consumption in this state of tangible personal property purchased from any retailer, at the rate of 5% of the sales price of that property." The issue before this court related to use tax is whether the intercompany transfers fall within the scope of the use tax statute. legislature defined "retailer," in the this case, using the term "seller." "Seller" is defined by Wis. Stat. § 77.51(17). on a "retailer." the scope section purchases from of the to sales tax statute. The sales tax statute imposes sales tax Wis. Stat. § 77.52(1). a applicable Wis. Stat. § 77.51(13)(a). A "seller," and a "seller" collects "sales tax." to The "retailer." "retailer" is a Use tax applies Wis. Stat. § 77.53(1). Juxtaposed, the statutes raise ambiguity related to the scope of the use tax. Because ambiguity exists related to § 77.53(1), we will consider extrinsic evidence to ascertain the legislature intent, such as the Commission's interpretation. 11 No. ¶30 2004AP2468 Wisconsin Statute § 77.60(3) provides the following: If due to neglect an incorrect return is filed, the entire tax finally determined shall be subject to a penalty of 25% . . . of the tax exclusive of interest or other penalty. A person filing an incorrect return shall have the burden of proving that the error or errors were due to good cause and not due to neglect. Unlike § 77.53(1), this language from § 77.60(3) does not reasonably give rise to multiple interpretations. It is not ambiguous. as Therefore, extrinsic evidence, such agency interpretations, will not be necessary in interpreting it. We will apply the statute's plain meaning. B. Extrinsic Sources Used in Interpreting Ambiguous Statutes ¶31 of Because § 77.53(1) is ambiguous, we will apply rules statutory construction. construction of statutes superfluous. Specifically, that makes any part we of avoid the a statute Kollasch v. Adamany, 104 Wis. 2d 552, 563, 313 N.W.2d 47 (1981). We also will resolve ambiguities in favor of the party upon whom the state seeks to impose a tax. Id. at 561; Kearney & Trecker Corp. v. DOR, 91 Wis. 2d 746, 753, 284 N.W.2d 61 (1979). Because the state seeks to impose the use tax on River City, ambiguities will be resolved in River City's favor. ¶32 In addition to applying rules of statutory construction, we will consider extrinsic sources such as the Commission's interpretation of the statute. We are not bound by an agency's interpretation of statutory language, but we do at times defer statute. to an UFE, 201 agency when Wis. 2d at 12 presented 284; State with ex an rel. ambiguous Parker v. No. 2004AP2468 Sullivan, 184 Wis. 2d 668, 699, 517 N.W.2d 449 (1994). Three possible levels of deference apply based on "the comparative institutional capabilities and qualifications of the court and the administrative agency." Id. The levels are great weight deference, due weight deference, or no deference. ¶33 Great weight deference applies when the following requirements are met: (1) the agency was charged by the legislature with the duty of administrating the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency's interpretation will provide uniformity and consistency in the application of the statute. 196 Harnischfeger, Wis. 2d at 660. Great weight deference applies because of an agency's experience, technical competence, and specialized knowledge, which aid the agency in interpreting and applying the statute. Kelley Co. Wis. 2d 234, 244-45, 493 N.W.2d 68 (1992). deference applies, courts sustain any v. Marquardt, 172 When great weight reasonable agency interpretation that is not contrary to the clear meaning of the statute. Even if a more reasonable courts will sustain the agency's. the other unreasonable hand, if an it agency's "directly interpretation exists, UFE, 201 Wis. 2d at 287. statutory contravenes interpretation the words of On is the statute, it is clearly contrary to legislative intent or it is without rational basis." Harnischfeger, 196 Wis. 2d at 662. The party seeking to overturn the agency's interpretation has 13 No. 2004AP2468 the burden of showing the interpretation is unreasonable. Id. at 661. ¶34 We apply due weight deference when an agency has some experience in the area, but not the type of experience that puts it in a better position to interpret the statute than the court. UFE, 201 because Wis. 2d at the 286. legislature related to the statute. Deference granted Id. the applies agency in such cases enforcement power When due weight deference applies, courts sustain an agency's reasonable statutory interpretations, unless the court another interpretation to be more Id. at 286-87. reasonable. ¶35 finds No deference applies when an agency addresses an issue that is clearly one of first impression or has inconsistently addressed the issue when it has been presented previously. Id. at the 285. Neither of these situations exist related to Commission's interpretation of either § 77.53(1) or § 77.60(3).6 ¶36 In considering the Commission's interpretation § 77.53(1), due weight deference is appropriate. has expertise related to use tax. not rely on that expertise and of The Commission However, the Commission did specialized knowledge in interpreting the scope of the use tax statute. It depended on case to law. Courts have expertise related case law. Accordingly, the Commission was not in a better position than 6 As a point of emphasis, the court will review the § 77.60(3) issue de novo because the statute lacks ambiguity. We will give the Commission's interpretation of § 77.60(3) no deference because of the lack of ambiguity, not because the Commission lacks experience or has previously been inconsistent. 14 No. 2004AP2468 the courts to interpret § 77.53(1), and the related statutory definitions. Due weight deference is appropriate because the Commission has experience and specialized knowledge, but not the type that puts it in a better position than the courts. III. USE TAX ¶37 We must interpret § 77.53(1) to determine whether the intercompany transfers River City received subsidiaries are subject to use tax. from other BFI The relevant part of Wis. Stat. § 77.53(1) provides the following: "[a]n excise tax . . . levied and consumption imposed in . this . . on the storage, state of tangible use personal or other property purchased from any retailer, at the rate of 5% of the sales price of that property." to the intercompany To determine whether use tax applies transfers, the BFI subsidiaries that transferred the fixed assets must be considered "retailers" and River City must have "purchased" the fixed assets. If either of these do not apply to this case, use tax does not apply to the intercompany transfers. The Commission, in concluding that the BFI subsidiaries were not "retailers" and the fixed assets were not a "purchase," provided two independent rationales for the state to not impose use tax. A. Retailer ¶38 BFI In considering the term "retailer," the focus is on subsidiaries City. that transferred the fixed assets to River It is not an examination where we determine whether River City constituted a "retailer." 15 No. ¶39 The Commission concluded that the BFI 2004AP2468 subsidiaries that transferred assets to River City were not "retailers." We conclude that the Commission's interpretation of § 77.51(13) is reasonable because the BFI subsidiaries do not fall within the scope of any of the definitions provided in § 77.51(13). ¶40 The Department contended that the BFI subsidiaries fell within the scope of three provisions of § 77.51(13): (a), (am), and (b). Department's As addressed below, we do not find any of the interpretations to be more reasonable than the Commission's. ¶41 A § 77.51(13)(a) retailer is "[e]very seller who makes any sale of tangible personal property or taxable service." type of transaction that makes retailer is a "mercantile one[]." a person a The § 77.51(13)(a) Kollasch, 104 Wis. 2d at 568; Frisch, Dudek and Slattery, Ltd. v. DOR, 133 Wis. 2d 444, 448, 396 N.W.2d 355 (Ct. App. 1986). The Kollasch court reached this conclusion by interpreting the statutory language. After noting the ambiguity caused by juxtaposing statutory definitions, the court resorted "retailer" to was dictionary "'one definitions. that retails It noted something that a . . . specif(ically): a merchant middleman who sells goods mainly to ultimate consumers.'" Webster's Third Kollasch, International 104 Wis. 2d at Dictionary 566 (quoting (unab. 1976)). "Merchant" means "'a buyer and seller of commodities for profit; . . . the operator of a retail business.'" Id. (quoting Webster's Third International Dictionary (unab. 1976)). on the dictionary definitions of "retailer" and "merchant," 16 Based the No. 2004AP2468 Kollasch court concluded that mercantile intent must be present for a person to be considered a § 77.51(13)(a) retailer. ¶42 specifics Analysis of the Wis. 2d at 449. related to § 77.51(13)(a) transaction involved. focuses the Frisch, Id.; on 133 As noted in Kollasch, "[t]he meaning of the word 'retailer' . . . depends on the transaction to which it relates." specifics Kollasch, of the 104 Wis. 2d at transaction 566. itself, For instance, rather than the the profit motive of the Frisch law firm overall, determined whether it was a retailer when it charged clients for photocopies. Frisch, 133 Wis. 2d at 449. ¶43 The BFI subsidiaries lacked the necessary mercantile intent in transferring fixed assets to River City to qualify as § 77.51(13)(a) retailers. They were not merchant middlemen in the business of transferring fixed assets. They transferred selected assets that they could no longer use as effectively as River City. They also did not make a profit from transferring the assets to River City. from relocating effectively, assets Wisconsin Although, BFI generally benefited where is a they legal could entity be used theory most state. Interstate Fin. Corp. v. Dep't. of Taxation, 28 Wis. 2d 262, 273, 137 N.W.2d 38 (1965). We treat wholly-owned subsidiaries as independent legal entities, rather than as merely a part of the corporate shareholder. The BFI subsidiaries, as independent legal entities, did not have the requisite mercantile intent in transferring the assets at issue in this case. § 77.51(13)(a) retailers. 17 They were not No. ¶44 retail 2004AP2468 A § 77.51(13)(am) retailer is "[a]ny person making any sale of a motor vehicle . . . [or] trailer . . . registered or titled, or required to be registered or titled, under the laws of this state or of the United States." Department contended transferred (i.e., that trucks, the nature tractors, section applicable to this case. of and the fixed trailers) The assets made this River City countered that the BFI subsidiaries did not fall within § 77.51(13)(am) because an intercompany transfer was not a "retail" sale. It emphasized the presence of the term "retail" as an adjective for "sale" in § 77.51(13)(am), which does not exist in § 77.51(13)(a). ¶45 The applicability meaning of "retail sale." of § 77.51(13)(am) turns on the The statutory definition of "sale" begins by stating that "'Sale', 'sale, lease or rental', 'retail sale', 'sale at retail', or equivalent terms include any one or all of the following . . . ." Wis. Stat. § 77.51(14). The legislature did not provide any independent definition for the term "retail." Although the legislature mentions "sale" and "retail sale" in its definition of "sale," it must have some meaning or the inclusion of the word "retail" in § 77.51(13)(am) would be superfluous. We avoid a construction of a statute that results in words being superfluous. Kollasch, 104 Wis. 2d at 563. ¶46 Words according and phrases to common Wis. Stat. § 990.01(1). definitions in of statutes and Accordingly, discerning be approved we legislative 18 "shall resort to intent construed usage." dictionary when the No. legislature has Wis. 2d at 566. "[o]f, relating not provided "Retail," to, or commodities at retail." a when definition. used as in the engaged means "[t]he Kollasch, 104 adjective, means sale of goods or The American Heritage Dictionary of the English Language 1539 (3d ed. 1992). noun, an 2004AP2468 sale of "Retail," when used as a goods quantities directly to consumers." or Id. commodities in small "[I]n small quantities" denotes that a characteristic of "retail" is having an inventory of goods and commodities, from which sales occur directly to consumers. Merely passing along an isolated transaction is not enough to constitute "retail." "retail" as an adjective to "sale" in asset in a In including § 77.51(13)(am), the legislature conveyed its intent that taxes apply to only certain retailers that sell smaller quantities of goods from an inventory directly to consumers. ¶47 The intercompany transfers of fixed assets done by BFI subsidiaries do not qualify as "retail" sales because they lack the requisite retail nature that the legislature intended. The BFI subsidiaries merely passed along isolated assets to River City, without selling smaller quantities of an inventory directly to a consumer. They were not § 77.51(13)(am) retailers. ¶48 A Wis. Stat. § 77.51(13)(b) retailer, in pertinent part, is "[e]very person engaged in the business of making sales of tangible personal property for storage, use or consumption." The BFI subsidiaries that transferred the fixed assets to River City were not engaged in the business 19 of transferring fixed No. assets. the 2004AP2468 The BFI subsidiaries, like River City, were engaged in business publicly-traded of collecting corporation refuse. that In reported the context annual of revenues a of over five billion dollars, River City receiving fixed assets valued at less than 1.2 million dollars over a four-year term clearly does not constitute BFI subsidiaries engaging in the business of transferring fixed assets.7 not § 77.51(13)(b) retailers. do not constitute retailers BFI subsidiaries were Accordingly, the BFI subsidiaries based on any of the definitions provided in § 77.51(13). B. Purchase ¶49 follows: enjoyment, Wisconsin Statute § 77.51(12)(a) defines "purchase" as "Any or transfer use by: of cash title, or credit possession, transaction, ownership, exchange, barter, lease or rental, conditional or otherwise, in any manner or by any means whatever of tangible personal property for a consideration." The legislature has not provided a definition of "consideration" that applies to the subchapter on general sale and use tax. 7 A look at the approximate dollar figures involved illustrates why BFI subsidiaries are clearly not Wis. Stat. § 77.51(13)(b) retailers engaged in the business of transferring fixed assets. River City received fixed assets worth $1,180,531.81 over a four-year period, according to the Department audit. Annually, that is an average of $295,132.95. BFI had eight subsidiaries. If all of the subsidiaries took part in the intercompany transfers to the same extent as River City, annually the fixed assets transferred would value $2,361,063.60, which would be less than 0.05% of BFI annual revenues. 20 No. ¶50 2004AP2468 Courts, however, have defined consideration. It may arise when there is a benefit to the promisor or a detriment to the promisee, Wis. 2d 1, First 6, 188 Wisconsin N.W.2d 454 financial position. National (1971), Bank such as v. a Oby, 52 change in Hardscrabble Ski Area v. First Nat'l Bank, 42 Wis. 2d 334, 344, 166 N.W.2d 191 (1969). It may also arise from "[m]utual promises for future performances of acts by the parties . . . performed, if are each given of in the promises exchange mutually binding upon the parties." is for capable each other, of being and MADCAP I, LLC v. McNamee, 2005 WI App 173, ¶8, 284 Wis. 2d 774, 702 N.W.2d 16. that are "performable, concurrent, are and mutually Promises binding both parties at the same time" constitute consideration. upon Stack v. Roth Bros. Co., 162 Wis. 281, 288, 156 N.W. 148 (1916). ¶51 The Restatement (Second) of Contracts § 71 (1981) provides that "[t]o constitute consideration, a performance or a return promise must be bargained for." § 71(1). The performance or return promise is bargained for if "it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise." § 71(2). The requisite bargaining typically involves each party inducing the other to act. ¶52 BFI In this case, River City received fixed assets from subsidiaries and evidence of a payment. gave nothing in return. There is no There is no evidence that River City made any promises to the BFI subsidiaries. acted and got nothing in return. 21 The BFI subsidiaries Accordingly, we conclude that No. 2004AP2468 the requisite consideration did not exist for the intercompany transfers to be "purchases" pursuant to § 77.51(12)(a). ¶53 The Department contended that consideration based on a number of different rationales. existed We find none of them to be more reasonable than the Commission's conclusion that the intercompany transfers were something other than "purchases" for use tax purposes. ¶54 First, the Department contended that even though the BFI subsidiaries did not reap a bargained for benefit, BFI did. Wisconsin, however, follows the legal-entity theory. Fin. Corp., subsidiaries 28 Wis. 2d at We independent legal entities, as 273. treat merely a part of the corporate shareholder. Interstate wholly-owned rather than as Treating the BFI subsidiaries as independent corporations, there is no evidence that the subsidiaries got anything in return for transferring the fixed assets to River City. ¶55 has a Second, the Department also contended that Wisconsin statutory personal scheme property, that unless taxes an all transfers explicit of exemption tangible applies. Because River City has not identified an explicit exemption that applies to the intercompany transfers, the argument goes, some tax must scheme. apply. This ignores the nuances of the statutory For instance, this court has held that a § 77.51(13)(a) retailer must have mercantile intent. Kollasch, 104 Wis. 2d at 568. the Therefore, in a case where person transferring tangible personal property lacks mercantile intent, he or she will not be subject to tax, even though no explicit exemption 22 No. applies. The Department's assertion Wisconsin that 2004AP2468 has a statutory scheme that taxes all transfers of tangible personal property, unless an explicit exemption applies, is incorrect. ¶56 Finally, the Department bookkeeping manifested the intercompany transfers to contended necessary be that River consideration consideration. City's for the Consideration existed as a matter of law, the argument goes, as soon as it made an entry in its intercompany payables account. of this, the § 77.51(14) Mellody, Department and Inc. an v. relied Ohio Supreme Lindley, 417 on its Court N.E.2d 1257 In support interpretation decision, (Ohio of Hawthorn 1981). An examination of both of these indicates the Department's final contention is also unpersuasive. ¶57 According to the Department, because a § 77.51(14) sale occurred consideration must have arisen when River City entered a liability in its intercompany payables account.8 However, the occurrence of a § 77.51(14) sale is not the issue before this court. is not relevant Focusing on whether or not a sale occurred because the legislature did not include consideration as an element of a § 77.51(14) sale, as it did in defining "purchase." The recognition of a sale would be significant only if Wisconsin's statutory scheme imposed a tax on all transfers of tangible personal property. Then, either a sales tax or use tax would be owed once the determination of a 8 Section 77.51(14) defines "sale," in pertinent part, as "any one or all of the following: the transfer of the ownership of, title to, possession of, or enjoyment of tangible personal property." 23 No. sale had been made. As noted above, Wisconsin does not have such a statutory scheme. the analysis 2004AP2468 away Analysis of § 77.51(14) merely diverts from determining whether a "purchase" occurred. ¶58 The Department's citation of the Ohio Supreme Court decision is also unpersuasive because the court interpreted a distinguishable statutory definition of "sale." are interpreting scheme. The court interpreted Hawthorn Mellody, 417 N.E.2d at 1262. the definition of "purchase." The a We Ohio Legislature made the decision to "broadly define consideration." Id. The Wisconsin Legislature has not defined "consideration" at all. the The Hawthorn Mellody taxpayer sought an exception, so court construed the statute strictly, taxpayer had a "heavy burden to overcome." noting Id. that the River City does not seek an exception, but seeks to avoid imposition of a tax, which we construe in favor of the taxpayer. 91 Wis. 2d at 753. same heavy burden. accrual entries liability, the Kearney & Trecker, River City, therefore, does not face the The Hawthorn Mellody court held that because reflect the existence entries themselves of an created expense or consideration. Because of the distinct statutory scheme, we find this holding unpersuasive related to this case. ¶59 The Department's contentions do not result in an interpretation that is more reasonable than the Commission's. We conclude that the necessary consideration did not exist to deem the intercompany transfers "purchases." 24 Accordingly, the No. 2004AP2468 transfers do not fall within the scope of § 77.53(1) and River City does not owe use tax for the transfers. IV. ¶60 NEGLIGENCE PENALTY Wisconsin Statute § 77.60(3) provides the following: If due to neglect an incorrect return is filed, the entire tax finally determined shall be subject to a penalty of 25% . . . of the tax exclusive of interest or other penalty. A person filing an incorrect return shall have the burden of proving that the error or errors were due to good cause and not due to neglect. As noted above, this language does not reasonably give rise to multiple interpretations. It is not ambiguous. Therefore, extrinsic sources, such as agency interpretations, will not be necessary in interpreting it. meaning. We will apply the statute's plain Based on the plain language, River City has the burden of proving that it filed an incorrect return due to good cause and not due to neglect. ¶61 The Department's field audit had a section enumerating its findings of neglect that justified imposing the negligence penalty. It referred to both the recycling and waste reduction assets and the intercompany transfer assets as "the [two] major areas of contention in this audit," and that both had been and the addressed in the previous audit. ¶62 The litigation between BFI-Wisconsin Department that overlapped with this case gave River City good cause for filing its return. Related to the intercompany transfers, River City filed its return in a manner consistent with the Commission's conclusion in Browning-Ferris. Concerning the portion of the assessment related to the recycling exemption 25 No. 2004AP2468 issue, Browning-Ferris did not resolve the issue until seven years after the audit period. Accordingly, we conclude that River City has satisfied its burden. The negligence penalty need not be paid. ¶63 The Department contended that its stated rationale for the assessment of neglect should not be considered because the statute places the burden on the taxpayer to prove a lack of neglect. The Department legislature, would have to however, make a specified finding of that neglect the before imposing the negligence penalty. ¶64 Section 77.60(3) begins, incorrect return is filed." "[i]f due to neglect an This means that there must be a finding of neglect before the Department can impose the penalty. If this were not the case, the legislature could have provided the following: "If an incorrect return is filed . . . ." would not require a finding of neglect on the part of This the Department as a prerequisite to impose a negligence penalty. Therefore, to give meaning to the words of the statute, the Department must make negligence penalty. some finding of neglect to impose the It is due to the inclusion of "[i]f due to neglect," that the Department's findings of neglect is pertinent to determining whether a negligence penalty is appropriate. V. ¶65 do not CONCLUSION The intercompany transfers River City participated in fall subsidiaries § 77.51(13). within did Wisconsin's not use constitute tax statute. retailers The BFI pursuant to The requisite consideration did not exist for the 26 No. transfers to be considered § 77.51(12)(a) purchases. 2004AP2468 River City also satisfied its burden of showing that it had good cause for filing its return. By the Accordingly, we affirm the court of appeals. Court. The decision affirmed. 27 of the court of appeals is No. ¶66 SHIRLEY S. ABRAHAMSON, C.J. 2004AP2468.ssa (dissenting). I agree with the Department of Revenue and the circuit court and would reverse the decision of the Tax Appeals Commission. ¶67 In a thirty-seven-page, well-analyzed, well-reasoned and thorough opinion, the circuit court for Dane County, Judge Gerald C. Nichol, concluded that "River City's acquisitions of fixed from assets a through 'retailer' Furthermore, intercompany and River are City's transfers thus failure subject to were to report 'purchases' the all use of tax. its tax my own obligations was not due to good cause and was negligent." ¶68 I agree and find little need analysis for that of the circuit court. from or refer to relevant passages to substitute Instead, I shall quote from the circuit court's extensive opinion. I ¶69 As to the first issue, whether the transfers were subject to use tax, the circuit court properly declined to give any deference to the Tax Appeals Commission's interpretation of the statutes because the issue was very nearly one of first impression. ¶70 The circuit court initially observed that corporations were separate entities for state tax purposes: River City is a separate legal corporate entity from BFI and all other BFI subsidiaries. For state tax purposes, each subsidiary is properly viewed as an independent entity, and accordingly, should also be treated as such in the context of this case. Wis. DOR v. River City Refuse Removal, Inc., No. 2003CV2774, at 14 (Wis. Cir. Ct. Dane County, Aug. 2, 2004) (hereinafter "Circuit Court Memorandum Decision and Order"). 1 the No. ¶71 which 2004AP2468.ssa The circuit court then held that the subsidiaries from River City acquired the fixed assets were "retailers" under § 77.51(13)(b) and § 77.51(13)(am), based on the following analysis: ¢ "These transfers gave River City all rights [of] ownership of the assets. The fixed assets included various motor vehicles as well as other related assets between two and four years old. All motor vehicles acquired through these intercompany transfers were re-titled in River City's name. All fixed assets acquired in this manner were then depreciated on River City's income and franchise tax returns." Circuit Court Memorandum Decision and Order at 10. ¢ Kollasch v. Adamany, 104 Wis. 2d 552, 568, 313 N.W.2d 47 (1981), holds that "[t]he construction which we give to 'retailer' applies the sec. 77.51(7)(b), Stats., definition to all person [sic] 'engaged in the business of making sales.' Those person [sic] are, by statute, required to pay a tax on the gross receipts of all retail sales that they enter into unless they can point to a specific exemption from the tax. Sec. 77.51(7)(a) requires persons who are not in the business of making sales to pay the sales tax if they are sellers i.e., engaging in a transaction for which the gross receipts are subject to the sales tax pursuant to sec. 77.52(1). The type of transactions which make one a sec. 77.51(7)(a) retailer are mercantile ones." Circuit Court Memorandum Decision and Order at 17. ¢ Accordingly, "there were two types of retailers under the statutes," including "persons who are not engaged in the business of making sales, but who engage in a transaction for which the gross receipts are subject to the sales tax." Circuit Court Memorandum Decision and Order at 18. ¢ "The acquisitions made by River City from the various subsidiaries were neither isolated nor sporadic sales. Indeed, these acquisitions were constant in occurrence and [were] a vital means of supporting the company's operations. The subsidiaries were in the 'business' of making sales under § 77.51(13)(b) because they were engaged in the transactions with the 'object of gain, benefit, or advantage, either direct or indirect' under § 77.51(1). At least one of the subsidiaries that transferred assets to River City held a seller's permit, which renders all sales made by that subsidiary subject to taxation, absent an exemption. Furthermore, River City 2 No. ¢ 2004AP2468.ssa held a consumer use tax permit, because it made numerous purchases of taxable goods without sales tax being charged by the seller. The use tax permit fulfills the same purpose as the sales tax permit, and as such, River City's holding of the use tax permit further indicates to this Court that the parties from which River City acquired the fixed assets should properly be considered retailers." Circuit Court Memorandum Decision and Order at 24-25. "Furthermore, a considerable number of the fixed assets that River City acquired were motor vehicles. These motor vehicles were received by River City and subsequently retitled in River City's name. The legislature placed specific focus on sellers of motor vehicles by enacting § 77.51(13)(am), which provides that a retailer is also 'any person making any retail sale of a motor vehicle . . . registered or titled, or required to be registered or titled . . . .'" Circuit Court Memorandum Decision and Order at 25. ¶72 The circuit court also held that the acquisitions of fixed assets from other BFI subsidiaries were "purchases" under § 77.51(12)(a), reasoning as follows: ¢ Even though the intercompany transfers did not involve an exchange of money, "consideration can exist just by intent on behalf of the parties to be bound to the contract." Circuit Court Memorandum Decision and Order at 27. ¢ "The bookkeeping entries actually show that there was intent by the parties to be bound to the transaction. The entries made in River City's payables account do show a promise to pay for the liabilities the company has accrued. The subsidiaries from which River City acquired the assets have corresponding entries in their receivable accounts that show an expectation of payment from River City. Certainly, if the parent company BFI sold off one of these subsidiaries to an outside interest, the new owner would acquire all the assets and liabilities that their newly acquired company had incurred on its books." In other words, "[b]y recording the liabilities and receivables on their books, these subsidiaries are confirming that the transactions took place and are accurate depictions of the financial status of the companies. The entries show that the parties intended to be bound to the transactions." Circuit Court Memorandum Decision and Order at 27-28. ¢ "The changes in River City's financial records clearly results in consideration in the state of Wisconsin. A change of financial position constitutes consideration. 3 No. ¢ ¢ ¢ 2004AP2468.ssa Hardscrabble Ski Area v. First Nat. Bank, 42 Wis. 2d 334, 344, 166 N.W.2d 191 (1969). The acquisition of assets and the related bookkeeping entries changed the financial position of River City. After acquiring the fixed assets, River City was able to deduct depreciation expenses. These deductions then reduced River City's taxable income. This is an obvious benefit to River City that fulfills the definition of consideration." Circuit Court Memorandum Decision and Order at 28. "The bookkeeping entries are far more than some type of inventory tracking system. The entries themselves materially affect the financial value of the company." Circuit Court Memorandum Decision and Order at 29. "[T]he Court also finds ample evidence in the record that indicates that River City did, in fact, make payments for those assets." Circuit Court Memorandum Decision and Order at 30. Furthermore, "[t]he assets acquired by River City were subsequently depreciated. But, in order to depreciate the assets, River City must have incurred a cost for those assets. Under the accrual method of accounting, the amount that is expended or will be expended must be incurred before the company can use the amount in computing its expense deduction. Treas. Reg. § 1.4461(c)(1)(ii)(B). Thus, if River City did not, as it consistently asserts, acquire the assets in exchange for some form of remuneration, then it would have no cost basis for depreciating those assets." Circuit Court Memorandum Decision and Order at 31. ¶73 The circuit court properly concluded that "the intercompany transfers were 'purchases' from a 'retailer' and thus subject to the use tax." Circuit Court Memorandum Decision and Order at 29. II ¶74 As to the second issue, the circuit court properly gave no deference to the Tax Appeals Commission on the question whether the assessment of a negligence penalty was warranted because the penalty directly pertained to the disposition of the first issue, which the circuit court determined independently of the Tax Appeals Commission. 4 No. ¶75 The circuit court then concluded that the negligence penalty was properly imposed upon River City. circuit 2004AP2468.ssa court's analysis were two Important to the principles: 1) "under § 77.60(3) neglect is determined as of the date the tax return is filed," and 2) "the same statute places the burden of proof on the person filing an incorrect return to demonstrate that the errors were for good cause and not due to neglect." Circuit Court Memorandum Decision and Order at 34. ¢ ¢ ¢ ¢ ¶76 The circuit court reasoned as follows: "River City's position is that it was reasonable in not changing its tax reporting practices because it was waiting for the outcome of litigation by BFI-Wisconsin of the same issues. However, the timing of that litigation does not support River City's argument." Circuit Court Memorandum Decision and Order at 35. River City "was aware as a result of the previous audit that the DOR considered both activities to be taxable." Circuit Court Memorandum Decision and Order at 35. "Despite that knowledge, River City failed to properly report its tax obligations. The litigation involving BFIWisconsin was not commenced until four years after the end of the first fiscal year of the audit. It is untenable that a taxpayer could ignore its tax obligations until discovered by the DOR, and then avoid the negligence penalty because a separate company was litigating the same issues, well past the filing date when the neglect was determined." Circuit Court Memorandum Decision and Order at 36. "An appropriate course of action would have been for River City to report the activities that it knew to be considered taxable and then file for a refund pending the outcome of any subsequent litigation." Circuit Court Memorandum Decision and Order at 36. ¶77 The circuit court properly held that River City had not met its burden "to show that its failure to report its tax obligations was due to good cause and not neglect." Court Memorandum Decision and Order at 36. 5 Circuit No. ¶78 I agree with the rationale conclusions reached by the circuit court. offered 2004AP2468.ssa by and the I would reverse the court of appeals and hold that River City is liable for both the use tax and the negligence penalty assessed by the Department of Revenue. III ¶79 I write further to express a caution about the method advanced in the majority opinion for determining what level of deference to afford to the Tax Appeals LIRC, 201 Commission's interpretation of a statute. ¶80 Relying on UFE Inc. v. Wis. 2d 274, 548 N.W.2d 57 (1996), the majority opinion announces that "[w]e are not bound by an agency's interpretation of statutory language, but we do at times defer to an agency when presented with an ambiguous statute." ¶81 Majority op., ¶32. Essentially, the majority opinion concludes that if a statute is plain on its face, that is, not ambiguous, then no extrinsic sources, including agency interpretations, consulted to determine the statute's meaning.1 need be Put another way, if a statute's meaning is unambiguous and obvious from the text, then the court's interpretation 1 is the only reasonable Majority op., ¶¶29-30, 32. I find it surprising that the majority opinion treats an agency's interpretation of a statute as an extrinsic source. The usual extrinsic source is "legislative history." I wonder whether under the majority's rubric prior case law interpreting a statute in question would also be considered an "extrinsic source," to be used only when a statute is deemed ambiguous. 6 No. 2004AP2468.ssa interpretation of a statute and no deference need be given to an agency's interpretation.2 ¶82 The majority opinion explains its approach as follows: "As a point of emphasis, the court will review the § 77.60(3) issue de novo because the statute lacks ambiguity. the Commission's interpretation of § 77.60(3) We will give no deference because of the lack of ambiguity, not because the Commission lacks experience or has previously been inconsistent." Majority op., ¶35 n.6. ¶83 I believe this approach to deference to an agency's interpretation of a statute is problematic. ¶84 threshold Traditionally, inquiry, this whether court not considered, statute a has is ambiguous as a before examining whether to accord deference to an agency's statutory interpretation.3 questions of law The court instead has stated that it decides but under some circumstances may accord deference to an agency's interpretation. ¶85 Rather than analyzing such questions as the experience an agency has with a certain statute, its specialized knowledge in a field, and whether it has been specially charged by the 2 I also do not understand the reason for the majority's comparison of the reasonableness of the positions of the Department of Revenue and the Tax Appeals Commission. See majority op., ¶¶40, 53, 59. The court is reviewing the statutory interpretation and the decision of the Tax Appeals Commission, not reviewing the Department of Revenue. 3 For an extensive discussion of the method traditionally used to determine what level of deference to afford an agency's statutory interpretation, including the numerous cases in which it was applied, see Racine Harley-Davidson v. Div. of Hearings & Appeals, 2006 WI 86, 292 Wis. 2d 549, 717 N.W.2d 184. 7 No. 2004AP2468.ssa legislature to administer the statute to determine whether a certain level of deference should be afforded to an agency's interpretation, bypass this majority analysis "unambiguous" statute. the and opinion simply by offering today declaring the court's allows courts the to statute interpretation of the Whether deference is given to an agency's statutory interpretation should not fall prey to the easily manipulated test of "ambiguity." ¶86 As I have previously written, "[t]he ambiguous/unambiguous, literal, plain meaning debate is a word game. The characterizations of 'ambiguous,' 'unambiguous,' 'literal,' and 'plain meaning' are in the eyes of the beholder and appear to be conclusory labels a court pins on a statute."4 ¶87 to The two methods of determining the deference, if any, afford advocated an agency's today by interpretation the majority of statutes the opinion and the traditionally used may ultimately reach the same result. one one To avoid confusion and debate in future cases about the correct analysis, I would continue to apply the analysis traditionally employed for according deference to statutory interpretation of an administrative agency. ¶88 For the foregoing reasons, I dissent. 4 Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶67, 293 Wis. 2d 123, 717 N.W.2d 258 (Abrahamson, C.J., concurring) (listing other cases describing the problematic aspects of the inquiry into ambiguity). 8 No. ¶89 I am authorized to state BRADLEY joins this opinion. 9 that Justice 2004AP2468.ssa ANN WALSH No. 1 2004AP2468.ssa

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