               IN THE SUPREME COURT OF TENNESSEE
                          AT NASHVILLE


DAVID HUTTON,                      ) FOR PUBLICATION
                                   ) FILED: November 17, 1997
      Plaintiff/Appellee,            )
                                     )
Hon. James L. Weatherford, Judge
                       )
v.                                 ) Giles County
                                   )
RUTH E. JOHNSON,                   )
Commissioner of Revenue            ) NO. 01S01-9705-CH-00101
for the State of Tennessee,        )

      Defendant/Appellant.
                                   )
                                   )                     FILED
                                                         November 17, 1997

                                                         Cecil W. Crowson
FOR APPELLANT                           FOR APPELLEEAppellate Court Clerk

John Knox Walkup                        Christopher M. Was
Attorney General & Reporter             Trabue, Sturdivant & DeWitt
                                        Nashville, Tennessee
Michael E. Moore
Solicitor General

Michael W. Catalano
Associate Solicitor General
Nashville, Tennessee




                              OPINION




Judgment of Trial Court
and Court of Appeals Reversed
Cause Remanded.                                            Drowota, J.


             We granted the application for permission to appeal filed by the

defendant, Department of Revenue, regarding the issue whether the Court of

Appeals erred in upholding the trial court’s determination that the plaintiff, in

computing the use tax on a jet aircraft acquired by him in December of 1993,

was entitled to a credit under Tenn. Code Ann. § 67-6-510. We denied the

application for permission to appeal filed by the plaintiff, David Hutton.



             We conclude that the transaction whereby Mr. Hutton acquired the

jet airplane upon which the Department of Revenue imposed use taxes did not

constitute a trade nor was such transaction part of a series of trades. Therefore,

Mr. Hutton is not entitled to a credit under Tenn. Code Ann. § 67-6-510 in

computing the use tax on the jet aircraft. Given our disposition of this issue, we

do not address the other issues presented in the Department of Revenue’s

application. The judgment of the Court of Appeals and that of the trial court are

reversed, and the plaintiff’s suit for a refund of use taxes is dismissed.



                               BACKGROUND



             David Hutton, who is a resident of Pulaski, Tennessee, is engaged

in the real estate development business. He owns, directly or indirectly, several

shopping centers in the southeastern part of the United States.



             Prior to June of 1993, Mr. Hutton owned a twin-engine propeller-

driven airplane, a Beech Model F 90, which he used in his real estate business.


                                       - 2 -
In 1993 he decided to replace this propeller-driven airplane with a jet aircraft

that would better serve his business needs.        He wanted to structure his

disposition of the propeller-driven plane and acquisition of a jet aircraft in a

manner that would enable him to defer, for federal income tax purposes, the gain

he would realize upon the disposition of the propeller-driven plane.



             Bell Aviation, Inc. is an aircraft brokerage firm with its principal

place of business in Lexington, South Carolina. On June 25, 1993, Bell

Aviation, Inc. entered into a contract with David Hutton (the “Exchange

Agreement”) pursuant to which Mr. Hutton sold his Beech Model F 90 to Bell

Aviation, Inc. for a price of $1,142,000.



             The Exchange Agreement was drafted in a manner intended to

permit David Hutton to defer, pursuant to Section 1031 of the Internal Revenue

Code, the recognition of the gain that he realized upon selling the propeller-

driven plane to Bell Aviation, Inc. Accordingly, under the Exchange Agreement

Mr. Hutton was given 45 days from June 25, 1993 to identify “like kind”

property that he could acquire “in exchange” for the propeller-driven plane. Mr.

Hutton had under the Exchange Agreement 180 days from June 25, 1993 in

which to acquire title to any such “like kind” property that he identified.



             Under the terms of the Exchange Agreement, Bell Aviation, Inc.

was required to use its best efforts to facilitate Mr. Hutton’s desire to have the

transaction qualify as an exchange of “like kind” property under Section 1031

of the Internal Revenue Code. In this regard, Bell Aviation, Inc. was called



                                      - 3 -
upon to execute certain documents in the event Mr. Hutton was successful in

identifying “like kind” property. However, Bell Aviation, Inc.’s undertaking was

limited by the following provision of the Exchange Agreement:



                  Notwithstanding anything herein contained to the
             contrary:

                  A. Bell shall not be in default under this
             Exchange Agreement and shall not be liable for any
             damages, losses, or expenses incurred by owner
             (David Hutton), if: (i) Bell fails to take any steps to
             locate, negotiate for or acquire the Exchange
             Property, or (ii) any Exchange Property fails to
             qualify as ‘like kind’ property, or the transaction
             otherwise fails, for any reason, to afford Owner some
             or all of the benefits of § 1031 of the Internal
             Revenue Code, unless the failure is caused solely by
             the gross negligence of Bell or a negligent
             misrepresentation (regarding whether Bell Aviation,
             Inc. was a ‘disqualified person’ as defined in U.S.
             Treasury Regulation § 1.1031(k)-1(k)).”



             Contemporaneous with the execution of the Exchange Agreement

on June 25, 1993, David Hutton conveyed title to the Beach Model F 90 to Bell

Aviation, Inc. Bell Aviation, Inc. paid the $1,142,000 purchase price by paying

$512,913.48 to satisfy an outstanding lien on the propeller-driven plane and by

paying the balance, $629,086.52, to an escrow agent (First National Bank of

Pulaski).



             The Exchange Agreement provided that if Mr. Hutton had not

identified suitable “like kind” property and acquired such “like kind” property

within the respective 45-day and 180-day time limits, he would have been

entitled to the $629,086.52 that Bell Aviation, Inc. had paid to the escrow agent,



                                      - 4 -
plus the interest thereon accruing after June 25, 1993. Otherwise, the money in

the escrow account would be paid on David Hutton’s behalf as partial payment

of “like kind” property that he acquired. Thus, the benefits on the escrow

account belonged to Mr. Hutton after June 25, 1993.



             Neither Bell Aviation, Inc.’s acquisition of title to the Beach

Model F 90 on June 25, 1993 nor Mr. Hutton’s benefiting from the full price

paid therefor, $1,142,000.00, was subject to any condition regarding Mr.

Hutton’s success in finding and acquiring suitable “like kind” property.



             On August 6, 1993, Mr. Hutton sent to Bell Aviation, Inc. a letter

stating that he “identifies property described as, Cessna Citation II, as Exchange

Property under the (Exchange) Agreement.”



             David Hutton entered into a contract dated December 16, 1993 with

Cessna Aircraft Company of Wichita, Kansas entitled “Used Aircraft Purchase

Agreement” (the “Cessna Agreement”). The Cessna Agreement called for Mr.

Hutton to purchase from Cessna Aircraft Company a 1985 Cessna Citation S/II

jet aircraft. The price for the jet aircraft was $2,250,000.00, with $112,500

being paid upon execution of the Cessna Agreement and the balance,

$2,137,500.00, being due upon delivery of the jet. The Cessna Agreement

included the following provision:



             “Selling Price                   $2,250,000
              Less Trade Allowance                     0
              Net Price                       $ 2,250,000
              Deliver Price                   $2,250,000"


                                      - 5 -
             The Cessna Agreement contained no reference to the transaction

whereby Mr. Hutton had sold the propeller-driven aircraft to Bell Aviation, Inc.

It did include the following provision:



                   “This Agreement is the only agreement
             controlling this purchase and sale, express or implied,
             either verbal or in writing, and is binding on
             Purchaser and Seller, their heirs, executors,
             administrators, successors or assigns.            This
             Agreement, including the rights of Puchaser
             hereunder, may not be assigned by Purchaser except
             to a wholly-owned subsidiary or successors in interest
             by name change or otherwise and then only upon the
             prior written consent of Seller.             Purchaser
             acknowledges receipt of a written copy of this
             Agreement which may not be modified in any way
             except by written agreement executed by both
             parties.”



             On December 17, 1993, David Hutton executed a document

pursuant to which he purported to assign his rights under the Cessna Agreement

to Bell Aviation, Inc. Such an assignment had been contemplated by the terms

of the Exchange Agreement between Mr. Hutton and Bell Aviation, Inc. On the

same day Bell Aviation, Inc. executed a letter that purported to direct Cessna

Aircraft Company to deliver title to the jet aircraft directly to Mr. Hutton. It is

not clear from the record whether this letter and Mr. Hutton’s assignment were

actually sent to Cessna Aircraft Company.



             Bell Aviation, Inc. also signed a letter dated December 17, 1993 in

which it directed the escrow agent under the Exchange Agreement, First

National Bank of Pulaski, to pay the money it had been holding in the escrow



                                       - 6 -
account to Cessna Aircraft Company as partial payment for Mr. Hutton’s

purchase of the jet aircraft.



              Mr. Hutton states in his affidavit that, “The transaction for

acquisition of the Cessna aircraft was closed on December 20, 1993. After

certain modifications, maintenance and pilot training were completed, the

aircraft was delivered to me on or about January 20, 1994.”



              The Department of Revenue sent David Hutton a letter dated

September 2, 1994 by which it assessed use taxes on the jet aircraft Mr. Hutton

had purchased from Cessna Aircraft Company. (Sales taxes were not imposed

because the transaction between Mr. Hutton and Cessna Aircraft Company did

not occur in the State of Tennessee.) The amount of the September 2, 1994 use

tax assessment was based on the full purchase price of the jet aircraft,

$2,250,000.

              Mr. Hutton paid the portion of the use tax assessment that he did

not contest, which was the portion thereof based on the excess of the price of the

jet aircraft ($2,250,000) over the price for which he had sold the propeller-

driven plane ($1,142,000). Following an informal conference between Mr.

Hutton and the Department of Revenue, the Department sent Mr. Hutton’s

attorney a letter dated December 19, 1994 that included the following:



                   “The totality of the circumstances mandate (sic)
              a finding that a trade-in credit is unavailable. The
              facts indicate that no trade-in occurred, but rather two
              separate transactions took place. The Department
              must therefore uphold the tax and interest portions of
              the assessment.”


                                       - 7 -
             In response to the foregoing letter, Mr. Hutton, on December 30,

1994, paid the balance of the assessment.



             The Department of Revenue sent Mr. Hutton a letter dated

December 7, 1995 in which the Department of Revenue, pursuant to Tenn. Code

Ann. § 67-1-1802(c)(2), waived the requirement for filing an administrative

claim for a refund and informed Mr. Hutton that he had six months in which to

file a suit for a refund in chancery court.



             Mr. Hutton filed his complaint in the Chancery Court for Giles

County on April 25, 1995. He sought a refund of a portion of the use taxes he

had paid based on his contention that, in computing the use taxes on the jet

aircraft he had acquired from Cessna Aircraft Company, he was entitled to a

credit under Tenn. Code Ann. § 67-6-510 for the propeller-driven plane he had

sold to Bell Aviation, Inc.



             Both parties moved for summary judgment. The trial court granted

the summary judgment motion of Mr. Hutton and denied that of the Department

of Revenue. The trial court ruled that Mr. Hutton was entitled to a refund based

on a $1,142,000 trade-in value for the propeller-driven plane.



             The Department of Revenue appealed the trial court’s decision to

the Court of Appeals. The Court of Appeals agreed with the trial court that Mr.

Hutton was entitled to a credit under Tenn. Code Ann. § 67-6-510. However,



                                       - 8 -
the Court of Appeals held that the credit should have been limited to an amount

based on the amount deposited by Bell Aviation, Inc. in the escrow account,

rather than an amount based on the full $1,142,000 value of the propeller-driven

plane.1



              Judge Koch filed a dissenting opinion in which he concluded that

no credit was allowable under Tenn. Code Ann. § 67-6-510 because the

acquisition of the jet aircraft, “does not involve a trade or series of trades.”




                                     ANALYSIS

              The Department of Revenue’s assessment of use taxes with respect

to the jet aircraft David Hutton acquired for Cessna Aircraft Company was made

pursuant to Tenn. Code Ann. § 67-6-203(a). This statute provides as follows:



                   (a) A tax is levied at the rate of six percent (6%)
              of the cost price of each item or article of tangible
              personal property when the same is not sold but is
              used, consumed, distributed, or stored for use or
              consumption in this state; provided, that there shall be
              no duplication of the tax.”



              Mr. Hutton maintains that he is entitled to a credit against the use

tax assessment under Tenn. Code Ann. § 67-6-510. Subsection (a) of this

statute provides as follows:



                   “(a) Where used articles are taken in trade, or in
              a series of trades, as a credit or part payment on the

       1
        Because we conclude that the plaintiff is not entitled to any credit under Tenn.
Code Ann. § 67-6-510, we do not address the difference of opinion between the trial court
and the Court of Appeals regarding the calculation of the amount of a trade-in credit.

                                          - 9 -
             sale of new or used articles, the tax levied by this
             chapter shall be paid on the net difference, that is, the
             price of the new or used ariticle sold less the credit for
             the used article taken in trade.”


             Tenn. Code Ann. § 67-6-510 operates to negate (in part) other

provisions of the Retailers’ Sales Tax Act that would otherwise impose sales or

use taxes. Therefore, the rules of statutory construction that apply to exemptions

(which are listed in Tenn. Code Ann. §§ 67-6-301 through 67-6-352) apply to

the contruction and application of Tenn. Code Ann. § 67-6-510. See, e.g.,

Tibbals Flooring Company v. Huddleston, 891 S.W.2d 196, 198 (Tenn. 1994);

Covington Pike Toyota, Inc. v. Cardwell, 829 S.W.2d 132, 135 (Tenn. 1992);

Rogers Group, Inc. v. Huddleston, 900 S.W.2d 34, 36 (Tenn. App. 1995). These

rules of statutory construction were described by the Court of Appeals in

American Cyanamid Company v. Huddleston, 908 S.W.2d 396 (Tenn. App.

1995), as follows:



                  “Tax exemption statutes are to be construed
             against the taxpayer and will not be implied. . . .

                  Every presumption is against exemption, and any
             well founded doubt defeats a claimed exemption. . . .


                  The burden is upon the taxpayer to establish a
             claimed exemption. . . .” (Citations omitted)

908 S.W.2d at 400.


             The documents pursuant to which Mr. Hutton sold the Beach

Model F 90 to Bell Aviation, Inc. and purchased a jet aircraft from Cessna

Aircraft Company establish that these were two independent transactions.

Neither of these transactions was dependent upon the completion of the other.

Even if we apply the “step transaction doctrine” (as is urged by the plaintiff and


                                       - 1 0 -
as was done by the majority of the Court of Appeals), we do not reach a

different conclusion.



             The “step transaction doctrine” is a doctrine that federal courts have

adopted in dealing with cases that are governed by the Internal Revenue Code.

The U.S. Court of Appeals for the Second Circuit described this doctrine and the

two tests that are employed thereunder as follows in Greene v. United States, 13

F.2d 577 (2nd Cir. 1994):



                  “The (step transaction) doctrine treats the ‘steps’
             in a series of formally separate but related
             transactions involving the transfer of property as a
             single transaction, if all the steps are substantially
             linked. . . . Rather than viewing each step as an
             isolated incident, the steps are viewed together as
             components of an overall plan. . . . Of course, the
             doctrine cannot manufacture facts that never occurred
             ...

                  Under the end result test, the step transaction
             doctrine will be invoked if it appears that a series of
             separate transactions were prearranged parts of what
             was a single transaction, cast from the outset to
             achieve the ultimate result. . . .

                  The interdependence test is a variation of the end
             result test. . . . It focuses on whether the steps are ‘so
             interdependent that the legal relations created by one
             transaction would have been fruitless without a
             completion of the series.’. . . To apply this test, a
             court must determine whether the individual steps had
             ‘independent significance or whether they had
             meaning only as part of the larger transaction.’”

13 F.3d 577, at 583-84.

             The two transactions involved in this case each had independent

significance. Neither of such transactions was dependent on the carrying out of

the other. After June 25, 1993, Bell Aviation, Inc.’s purchase of the propeller-


                                       - 1 1 -
driven plane from Mr. Hutton and its payment of the purchase price therefor had

become final; even though the Exchange Agreement contemplated efforts to

make the provisions of Section 1031 of the Internal Revenue Code available to

Mr. Hutton, Bell Aviation, Inc.’s purchase of the propeller-driven plane was not

contingent on the success of such efforts. Even if we assume that Mr. Hutton’s

assignment of his rights under the Cessna Agreement and Bell Aviation, Inc.’s

December 17, 1993 letter directing Cessna Aircraft Company to deliver title to

the jet airplane to Mr. Hutton were actually delivered to Cessna Aircraft

Company, such documents did not have significance; the transaction involving

the jet airplane was carried out according to the terms of the Cessna Agreement,

i.e., Cessna Aircraft Company conveyed title to the jet aircraft to Mr. Hutton in

exchange for the full purchase price of $2,250,000.




                                CONCLUSION

             We conclude that Mr. Hutton’s acquisition of the jet aircraft did not

involve a trade nor was it part of a series of trades. Therefore, in computing the

use taxes on the jet aircraft, no credit is available under Tenn. Code Ann. § 67-6-

510. The judgment of the Court of Appeals and the judgment of the trial court

are reversed. This case is remanded to the trial court for entry of summary

judgment in favor of the Department of Revenue and the awarding of reasonable

attorney’s fees and expenses of litigation pursuant ot Tenn. Code Ann. § 67-1-

1803(d).




                                      - 1 2 -
                                      Frank F. Drowota, III,
                                      Justice

Concur:

Anderson, C.J.
Reid, Birch, Holder, J.J.




                            - 1 3 -
