                          STATE OF MICHIGAN

                           COURT OF APPEALS



TOMRA OF NORTH AMERICA, INC.,                                      FOR PUBLICATION
                                                                   July 17, 2018
               Plaintiff-Appellant,                                9:10 a.m.

V                                                                  No. 336871
                                                                   Court of Claims
DEPARTMENT OF TREASURY,                                            LC Nos. 16-000118-MT

               Defendant-Appellee.


TOMRA OF NORTH AMERICA, INC.,

               Plaintiff-Appellant,

v                                                                  No. 337663
                                                                   Court of Claims
DEPARTMENT OF TREASURY,                                            LC No. 14-000091-MT

               Defendant-Appellee.


Before: GADOLA, P.J., and K. F. KELLY and RIORDAN, JJ.

GADOLA, J.

        In these consolidated cases, plaintiff, Tomra of North America, appeals as of right the
orders of the Court of Claims granting summary disposition to defendant, the Department of
Treasury. In its opinion, the Court of Claims concluded that plaintiff’s beverage container
recycling machines did not qualify for the industrial processing exemption to tax liability as set
forth in the General Sales Tax Act (GSTA), MCL 205.51 et seq., and the Use Tax Act (UTA),
MCL 205.91 et seq. We reverse and remand.

                                           I. FACTS

        The facts relevant to this appeal are largely undisputed. Plaintiff sells and leases the
container recycling machines commonly found in grocery stores, and also sells repair parts for
those machines. These machines accept aluminum cans, glass bottles, and plastic bottles for
recycling. When a can or bottle is placed in the machine, the machine reads the universal
product code (UPC), and then sorts the accepted cans and bottles. Aluminum cans are crushed,

                                               -1-
plastic bottles are sorted by color, punctured, and compacted, while glass bottles are sorted by
color. All containers are then moved to collection bins and thereafter transported to a recycling
facility. At the recycling facility, the containers are dumped onto conveyor belts. Glass bottles
are stored, while aluminum cans and plastic bottles are compacted into bales. The recycling
facility sells the cans and bottles to manufacturers who remanufacture the materials into other
products.

       In this case, the parties dispute plaintiff’s obligation to pay sales and use tax with respect
to the container recycling machines for the period of March 1, 2011, through December 31,
2011. During that tax period, plaintiff collected sales tax from customers to whom they sold or
leased container recycling machines, and paid the sales tax collected to defendant. Similarly,
during that tax period, plaintiff paid use tax to defendant related to parts used in repairing the
container recycling machines sold or leased by plaintiff. 1

        Plaintiff thereafter sought a refund of these amounts on the basis that its sales of
recycling machines and repair parts were exempt from taxation under the GSTA and UTA. After
defendant failed to respond to the refund request, plaintiff filed this action before the Court of
Claims. Plaintiff thereafter moved for summary disposition pursuant to MCR 2.116(C)(10),
seeking a ruling on the question whether plaintiff’s container recycling machines and repair parts
perform, or are used in, an industrial processing activity under the GSTA and UTA. The Court
of Claims denied plaintiff’s motion, and pursuant to MCR 2.116(I)(2), instead granted defendant
summary disposition, holding that plaintiff’s container recycling machines and repair parts are
not used in an industrial processing activity under the GSTA and the UTA, and that plaintiff
therefore is not entitled to exemption from sales and use tax for the sale and lease of the
machines and their repair parts. Plaintiff now appeals.

                                         II. DISCUSSION

        Plaintiff contends that the Court of Claims erred in holding that plaintiff’s container
recycling machines and repair parts are not used in an industrial processing activity under the
GSTA and the UTA, and therefore erred in granting summary disposition to defendant. We
agree.

        We review de novo a trial court’s grant or denial of summary disposition. Hoffner v
Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). In reviewing a decision on a motion for
summary disposition under MCR 2.116(C)(10), we review the record in the same manner as the
trial court, considering the pleadings, affidavits, depositions, admissions, and any other evidence
in favor of the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d
817 (1999). A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of a claim, and is appropriately granted when, except as to the amount of damages,
there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a
matter of law. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). We


1
 During this tax period, plaintiff remitted $673,511.65 in sales tax and $24,992.95 in use tax to
defendant.


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also review de novo the proper interpretation of statutes such as the GSTA and the UTA. See
Fradco, Inc v Dep’t of Treasury, 495 Mich 104, 112; 845 NW2d 81 (2014); see also Granger
Land Dev Co v Dep’t of Treasury, 286 Mich App 601, 608; 780 NW2d 611 (2009).

       Section 4t of the GSTA, MCL 205.54t, sets forth the industrial processing exemption
from the sales tax.2 The statute provides, in relevant part:
              (1) The sale of tangible personal property to the following . . . is exempt
       from the tax under this act:

              (a) An industrial processor for use or consumption in industrial
       processing.

               (b) A person, whether or not the person is an industrial processor, if the
       tangible personal property is intended for ultimate use in and is used in industrial
       processing by an industrial processor.

               (c) A person, whether or not the person is an industrial processor, if the
       tangible personal property is used by that person to perform an industrial
       processing activity for or on behalf of an industrial processor.

                                             * * *

              (3) Industrial processing includes the following activities:

                                             * * *

               (d) Inspection, quality control, or testing to determine whether particular
       units of materials or products or processes conform to specified parameters at any
       time before materials or products first come to rest in finished goods inventory
       storage.

                                             * * *

              (g) Remanufacturing.

                                             * * *

              (i) Recycling of used materials for ultimate sale at retail or reuse.

              (j) Production material handling.




2
  The UTA sets forth parallel provisions in MCL 205.94o such that, as the Court of Claims
noted, “whether addressing the GSTA or the UTA, the analysis of the question presented by
Plaintiff is the same.”


                                                -3-
              (k) Storage of in-process materials.

               (4) Property that is eligible for an industrial processing exemption includes
       the following:

                                             * * *

               (b) Machinery, equipment, tools, dies, patterns, foundations for machinery
       or equipment, or other processing equipment used in an industrial processing
       activity and in their repair and maintenance.

                                             * * *

              (6) Industrial processing does not include the following activities:

              (a) Purchasing, receiving, or storage of raw materials.

              (b) Sales, distribution, warehousing, shipping, or advertising activities.

                                             * * *

              (7) As used in this section:

               (a) “Industrial processing” means the activity of converting or condi-
       tioning tangible personal property by changing the form, composition, quality,
       combination, or character of the property for ultimate sale at retail or for use in
       the manufacturing of a product to be ultimately sold at retail. Industrial
       processing begins when tangible personal property begins movement from raw
       materials storage to begin industrial processing and ends when finished goods
       first come to rest in finished goods inventory storage.

               (b) “Industrial processor” means a person who performs the activity of
       converting or conditioning tangible personal property for ultimate sale at retail or
       use in the manufacturing of a product to be ultimately sold at retail.

       Entitlement to an exemption under the GSTA is determined by what use the customer
makes of the product sold by the taxpayer. Elias Bros Restaurants, Inc v Treasury Dep’t, 452
Mich 144, 154, 156; 549 NW2d 837 (1996). In accord, Detroit Edison Co v Dep’t of Treasury,
498 Mich 28, 37; 869 NW2d 810 (2015). Tax exemptions are disfavored, and the burden of
proving entitlement to a tax exemption is upon the party asserting the right to the exemption.
Elias Bros, 452 Mich at 150. Further, tax exemptions are strictly construed against the taxpayer
and in favor of the taxing unit. Ladies Literary Club v Grand Rapids, 409 Mich 748, 753; 298
NW2d 442 (1980) (citation omitted).



                                                -4-
         As set forth, under MCL 205.54t(1)(c), the sale of tangible personal property is exempt
from sales tax if the tangible personal property is used by the buyer to perform an industrial
processing activity for or on behalf of an industrial processor. Under MCL 205.54t(4)(b),
property that is eligible for an industrial processing exemption includes “machinery, equipment,
tools, dies, patterns, foundations for machinery or equipment, or other processing equipment
used in an industrial processing activity and in their repair and maintenance.” In this appeal, the
question is whether the container recycling machines plaintiff sells and leases are machinery
used by plaintiff’s customers in an “industrial processing activity” within the meaning of the
statute.

         An “industrial processing activity” is not defined by the statute, but the statute does
define “industrial processing” as “the activity of converting or conditioning tangible personal
property by changing the form, composition, quality, combination, or character of the property
for ultimate sale at retail or for use in the manufacturing of a product to be ultimately sold at
retail.” MCL 205.54t(7)(a). The statute also specifies activities that are considered to be
industrial processing, including, under subsection (3)(d), the “inspection, quality control, or
testing to determine whether particular units of materials or products or processes conform to
specified parameters at any time before materials or products first come to rest in finished goods
inventory storage,” under subsection (3)(g), remanufacturing, under subsection (3)(i), recycling
of used materials for ultimate sale at retail or reuse, under subsection (3)(j), production material
handling, and under subsection (3)(k), storage of in-process materials. The statute also specifies
activities that are not included in industrial processing, including under subsection (6)(a), the
purchasing, receiving, or storage of raw materials, and under subsection (6)(b), sales,
distribution, warehousing, shipping, or advertising activities.

        Subsection 4t(7)(a) of the GSTA, in addition to defining industrial processing, also
provides that “[i]ndustrial processing begins when tangible personal property begins movement
from raw materials storage to begin industrial processing and ends when finished goods first
come to rest in finished goods inventory storage.” In light of this provision, the Court of Claims
in this case concluded that plaintiff’s container recycling machines could not be engaged in an
industrial processing activity because the machines do not perform their task after tangible
personal property begins movement from raw materials storage to begin industrial processing.
That is, the tangible personal property in this case that is to be converted or conditioned through
industrial processing is the cans and bottles that consumers commonly return to a grocery store.
Generally, these cans and bottles are not first placed in “raw material storage” before the
consumer places them in the machines.3 The Court of Claims concluded that because the cans
and bottles were not first placed in raw material storage before being placed in the machines,
whatever function the machine performed could never be considered an industrial processing
activity. The Court of Claims stated:




3
  One can envision exceptions, such as when the cans and bottles are first collected at some other
point, such as at a retailer who does not have a container recycling machine, before being
transported to a location that does have a container recycling machine.


                                                -5-
       [R]egardless of whether Plaintiff’s recycling machines perform tasks that might
       fit within any specific provision of MCL 205.54t(3) or MCL 205.94o(3), because
       those activities occur before the industrial process begins, the exemptions found
       in MCL 205.54t and MCL 205.94o do not apply.

        The Court of Claims construed this provision as meaning precisely what it says, that
industrial processing begins when tangible personal property begins movement from raw
material storage to begin industrial processing, and we agree. But the Court of Claims also
construed this sentence to mean that industrial processing can never occur unless, first, tangible
personal property begins movement from raw material storage.4 The statute does not so provide,
and we think it unlikely that the Legislature intended that interpretation.

        A court’s primary task when interpreting a statute is to discern and give effect to the
intent of the Legislature. Ford Motor Co v Dep’t of Treasury, 496 Mich 382, 389; 852 NW2d
786 (2014). In doing so, we first consider the statutory language itself; if the language is
unambiguous, we conclude that the Legislature must have intended the clearly expressed
meaning, and we enforce the statute as written. Id. A statute is not ambiguous merely because a
term is undefined or has more than one definition, but ambiguity exists when statutory language
reasonably “admits of more than one meaning.” Klida v Braman, 278 Mich App 60, 65; 748
NW2d 244 (2008); Marcelle v Taubman, 224 Mich App 215, 219; 568 NW2d 393 (1997).

       Moreover, “what is plain and unambiguous often depends on one’s frame of reference,”
US Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101
(2009) (quotation marks and citations omitted), and warrants considering the context of the
passage by reading it “in relation to the statute as a whole and [to] work in mutual agreement.”
Id. We therefore read a statute “as a whole and in its grammatical context, giving each and every
word its plain and ordinary meaning unless otherwise defined.” Book-Gilbert v Greenleaf, 302
Mich App 538, 541; 840 NW2d 743 (2013), citing In re Receivership of 11910 South Francis
Rd, 492 Mich 208, 222; 821 NW2d 503 (2012). In so doing, we “avoid a construction that
would render any part of a statute surplusage or nugatory, and ‘[w]e must consider both the plain
meaning of the critical words or phrases as well as their placement and purpose in the statutory
scheme.’ ” People v Redden, 290 Mich App 65, 76-77; 799 NW2d 184 (2010) (citation omitted).
We also note that, although tax exemptions are construed strictly against the taxpayer, Ladies
Literary Club, 409 Mich at 73, any ambiguity found in a tax statute is construed in favor of the
taxpayer. Signature Villas, LLC v Ann Arbor, 269 Mich App 694, 702; 714 NW2d 392 (2006).

       As noted, section 4t of the GSTA, MCL 205.54t, provides for an industrial processing
exemption for the tax imposed by the GSTA. The statute therefore focuses, of necessity, upon
what activities fall within the purview of “industrial processing.” Indeed, the statute is devoted



4
  An apt analogy is the statement “the movie starts at 9:00.” The statement means what it says,
that the movie starts at 9:00. But shall we read into the statement the additional meaning that
“the movie starts at no other time than 9:00?” There may, perhaps, also be a 7:00 showing, and
another at 11:00.


                                               -6-
almost entirely to describing the activities that comprise, or do not comprise, industrial
processing.

        Among the activities that are specified by the statute as falling within the definition of
industrial processing are activities that are unlikely to begin with “tangible personal property
beginning movement from raw materials storage to begin industrial processing.” Subsection
(3)(e) provides that industrial processing includes “[p]lanning, scheduling, supervision, or
control of production or other exempt activities.” Subsection (3)(f) provides that industrial
processing includes “[d]esign, construction, or maintenance of production or other exempt
machinery, equipment, and tooling.” Clearly, the activities of planning, scheduling, and
designing are likely to predate tangible personal property beginning movement from raw
materials storage to begin industrial processing. Nonetheless, our Legislature clearly intended,
as evidenced by the language of these statutory provisions, to include these activities within the
definition of industrial processing. We will not, therefore, read the language of subsection (7)(a),
that “[i]ndustrial processing begins when tangible personal property begins movement from raw
materials storage to begin industrial processing” as a temporal requirement that would render
these portions of the statute meaningless. That is, we will not read into the plain language of the
statute the stricture that “no activity qualifies as industrial processing unless it is predated by
tangible personal property leaving raw material storage.” The statute does not say that industrial
processing must begin this way, but rather that when tangible personal property begins
movement from raw materials storage to begin industrial processing, one can rest assured that
industrial processing has begun.

        To discern the intention of the Legislature, statutory provisions should not be read in
isolation, which can lead to a distortion of legislative intent. Robinson v City of Lansing, 486
Mich 1, 15; 782 NW2d 171 (2010). “A provision that may seem ambiguous in isolation often is
clarified by the remainder of the statutory scheme.” Midamerican Energy Co v Dep’t of
Treasury, 308 Mich App 362, 370; 863 NW2d 387 (2014) (citation omitted). In this case, we
observe that subsection (6) of the statute specifies activities that are not considered industrial
processing. Among the activities not considered to be industrial processing is the “storage of
raw materials.” MCL 205.54t(6)(a). Having made clear that the storage of raw materials is not
industrial processing, subsection (7)(a) then makes clear that once “tangible personal property
begins movement from raw materials storage to begin industrial processing” the activity does
qualify as industrial processing. Our Legislature thus articulated exactly which activities related
to the storage of raw materials are and are not included in industrial processing, thereby
providing guidance for determining exactly when in the continuum tangible personal property
makes the transition from storage (not exempt) to activities of industrial processing (exempt).
This provision does not attempt to foreclose the possibility that industrial processing could occur
without the initial step of moving raw materials from storage,5 or when tangible items are never
in raw materials storage, and we decline to so expand the provision.



5
 We note that our Supreme Court in Detroit Edison Co, 498 Mich at 42, reached an analogous
conclusion that industrial processing had occurred despite the inability to meet the industrial
processing continuum described in MCL 205.54t. In that case, because the property involved


                                                -7-
        In construing the statute, and in keeping with the statute’s intent, our Supreme Court has
emphasized that entitlement to an exemption under the GSTA is determined by what use the
customer makes of the product sold by the taxpayer. Elias Bros, 452 Mich at 154, 156. In
reaching its conclusion in this case, the Court of Claims found determinative not the use to which
the container recycling machines were put, but rather when, and perhaps where,6 the equipment
is used in relation to raw materials storage. In light of our Supreme Court’s directive, we remand
to the Court of Claims for consideration of whether plaintiff is entitled to a tax exemption under
the GSTA and UTA, consistent with this opinion.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                              /s/ Michael F. Gadola
                                                              /s/ Michael J. Riordan




was electricity, our Supreme Court determined that industrial processing was complete when the
electricity reached the consumer, despite the fact that “there is simply no point within the electric
system at which ‘finished goods first come to rest in finished goods inventory storage’ ” [before
reaching the consumer]. The failure of electricity to come to rest as a finished good in inventory
storage did not disqualify the transmission of electricity to consumers from the exemption.
Similarly in this case, because of the nature of deposit return recycling, there is simply no point
other than in the hands of the consumer where the cans and bottles are in raw materials storage.
But as in Detroit Edison Co, that fact does not create a statutory barrier to entitlement to the
exemption for qualifying activities that happen to take place at the beginning of the process
rather than the end.
6
  If the container recycling machines were located somewhere less convenient to consumers than
grocery stores, such as at a distant recycling facility, the cans and bottles would presumably need
to be collected and stored before reaching the machines. Assuming for the sake of argument that
the machines are performing tasks that otherwise would be considered an industrial processing
activity, under the Court of Claims’ analysis the location of the machines becomes determinative
of whether an exemption is warranted, which is contrary to the Supreme Court’s determination in
Elias Brothers.


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