                   IN THE SUPREME COURT OF IOWA
                                   No. 07–1534

                            Filed October 8, 2010


THE SHERWIN-WILLIAMS COMPANY,

      Appellee,

vs.

IOWA DEPARTMENT OF REVENUE,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Carla T.

Schemmel, Judge.



      Department of Revenue seeks further review of court of appeals’

decision affirming district court’s decision on judicial review that taxpayer

was entitled to an exemption from use tax.        DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED; CASE

REMANDED.



      Thomas J. Miller, Attorney General, and Marcia E. Mason, Assistant

Attorney General, for appellant.



      Bruce W. Baker of Nyemaster, Goode, West, Hansell & O’Brien, P.C.,

Des Moines, and John A. Panno, Joseph F. Timmons, and Laura T. Gorjanc

of The Sherwin-Williams Company, Cleveland, Ohio, for appellee.
                                               2

TERNUS, Chief Justice.

       The appellee, The Sherwin-Williams Company, paid Iowa use tax on

certain machines used in its Iowa retail outlets to mix base paint with

colorant.      The appellant, Iowa Department of Revenue, denied Sherwin-

Williams’ refund claim for these taxes, refusing to apply the so-called

manufacturing exemption set forth in Iowa Code section 422.45(27)(a)(1)

(1999). 1   On judicial review, the district court reversed the department’s

ruling, and the Iowa Court of Appeals affirmed the district court. We granted

the department’s application for further review. Concluding the exemption

applies, we affirm the decision of the court of appeals and the judgment of

the district court.

       I. Background Facts and Proceedings.

       Sherwin-Williams is an Ohio-based company that manufactures,

distributes, and sells paint and paint-related products. It owns and operates

thirty-eight retail outlets in Iowa and, in addition, sells its products to

independent retail stores such as Menards, Home Depot, and Lowes. Since

the 1960s, Sherwin-Williams has used a decentralized manufacturing

process that requires retailers to mix colorants with a base liquid according

to precise formulas to create usable paint. 2

       To implement this process, each Sherwin-Williams retail location must

have a spectrographic color-matching machine that determines the mixing

formula to achieve the precise color desired; a dispensing/tinting machine,

known as a mini accutinter, to insert the colorant into the base; and a

mixer/shaker to combine the colorant and base. The base is a thick liquid


       1This   Code section is now found at Iowa Code section 423.3(47)(a)(1) (2009).
       2Paint has approximately a one-year shelf life after colorant is added to the base.

The decentralized system allows the company to offer 3000 color choices in different sheens
without maintaining a large inventory or disposing of great quantities of unsold product,
which is classified as a hazardous waste.
                                        3

composed of binders and resins.        The colorant, which contains additives

such as glycol and water, gives the base paint flow and leveling abilities.

Neither the colorant nor the base is salable at retail or usable by itself.

      This legal proceeding began when Sherwin-Williams filed a refund

claim for use taxes it paid from July 1, 1992, through December 31, 2000,

on the machinery used to produce paint in its Iowa stores. It contended it

had no liability for use tax, relying on a manufacturing exemption contained

in Iowa Code section 422.45(27)(a).      The department denied a refund for

taxes paid prior to July 1, 1997, the effective date of an amendment to the

manufacturing exemption that expanded its scope, and issued a refund

check for taxes paid after the amendment went into effect. Sherwin-Williams

requested a review of the department’s denial of a refund of pre-July 1, 1997

taxes. This review request prompted the department to ask the company for

additional information. Upon reviewing the additional information submitted

by Sherwin-Williams, the department not only refused to change its denial of

a refund for pre-July 1, 1997 taxes, but also revoked its earlier decision

granting a refund for the post-July 1, 1997 taxes.         Thereafter, Sherwin-

Williams formally withdrew its request for a refund of taxes paid prior to the

1997 expansion of the manufacturing exemption.

      The department then issued a notice of tax due in the amount of the

original refund plus interest, which was followed by a notice of assessment.

Sherwin-Williams filed a protest, prompting an evidentiary hearing before an

administrative law judge (ALJ).     The ALJ issued a proposed decision that

Sherwin-Williams was a “manufacturer” as that term is defined by statute,

exempted from payment of use taxes by section 422.45(27)(a).                  The

department appealed, and the department director issued a final decision

that Sherwin-Williams was not a “manufacturer” and did not qualify for the

exemption.    The agency decision was reversed by the district court on
                                         4

judicial review. As noted above, the court of appeals affirmed the district

court. This court granted the department’s application for further review.

      II. Applicable Statutes and Administrative Rules.

      It is helpful to provide a context for our discussion of this case by first

reviewing the applicable statutes and agency rules. At the time relevant to

this lawsuit, Iowa Code section 423.2 imposed a five percent tax “on the use

in this state of tangible personal property purchased for use in this state,”

calculated on the purchase price of the property. Iowa Code section 423.4(4)

exempted from use tax tangible personal property exempt from sales tax

under section 422.45. At issue in this case is the manufacturing exemption

set forth in section 422.45(27)(a)(1).

      Prior to 1997, certain sales of machinery and equipment were

exempted from use tax, including

      [t]he gross receipts from the sale . . . of industrial machinery,
      equipment and computers . . . if the following conditions are
      met:
            a. The industrial machinery, equipment and computers
      shall be directly and primarily used in the manner described in
      section 428.20 in processing tangible personal property or in
      research and development of new products or processes of
      manufacturing, refining, purifying, combining of different
      materials or packing of meats to be used for the purpose of
      adding value to products . . . .
             ....
           b. The industrial machinery, equipment and computers
      must be real property within the scope of section 427A.1,
      subsection 1, paragraph “e” or “j”.

Iowa Code § 422.45(27) (1997) (emphasis added). Iowa Code section 428.20,

to which reference is made in paragraph (a), states:

             A person who purchases, receives, or holds personal
      property of any description for the purpose of adding to its value
      by a process of manufacturing, refining, purifying, combining of
      different materials, or by the packing of meats, with a view to
      selling the property for gain or profit, is a “manufacturer” for the
      purpose of this title.
                                        5

Iowa Code § 428.20.     Section 427A.1(1)(e), to which reference is made in

paragraph    (b),   provides   that   “[m]achinery   used    in   manufacturing

establishments” is assessed and taxed “as real property.”             The term

“manufacturing establishments” was not defined in the tax statutes.          An

agency rule, however, provided the following definition:

      A manufacturing establishment is a business entity in which the
      primary activity consists of adding to the value of personal
      property by any process of manufacturing, refining, purifying,
      the packing of meats, or the combination of different materials
      with the intent of selling the product for gain or profit.

Iowa Admin. Code r. 701—71.1(6)(a) (emphasis added).

      During the 1997 legislative session, section 422.45(27) was amended.

1997 Iowa Acts ch. 87, § 1. According to the explanation contained in the

house bill that was adopted by the legislature, the bill rewrote the statute “by

defining those manufacturing activities which give rise to the [sales and use

tax] exemption.” H.F. 126, 77th G.A., Reg. Sess., explanation (Iowa 1997).

As of July 1, 1997, the effective date of this amendment, section

422.45(27)(a) exempts the following receipts from use tax:

             The gross receipts from the sale or rental of computers,
      machinery and equipment . . . if such items are any of the
      following:
           (1) Directly and primarily used in processing by a
      manufacturer.

Iowa Code § 422.45(27)(a)(1) (1999) (emphasis added).        Iowa Code section

422.45(27)(d)(4) provides that “ ‘[m]anufacturer’ means as defined in section

428.20.”

      A comparison of the pre and postamendment versions of this statute

reveals two notable changes effected by the amendment.                First, the

requirement that the items sold “be real property,” i.e., “used in

manufacturing establishments,” was eliminated.        Second, the amendment

changed the interplay between the manufacturing exemption and section
                                           6

428.20.    Under the amended statute, the equipment must be used “by a

manufacturer” as defined in section 428.20. Prior to the 1997 amendment,

the statute only required that the equipment be used “in the manner

described in section 428.20.”        The fiscal note that accompanied the bill

predicted a decrease in revenue to the general fund of approximately $4

million in fiscal year 1998 and thereafter. H.F. 126, 77th G.A., Reg. Sess.,

fiscal note (Iowa 1997). We conclude from this information that the general

assembly understood the amendment would have the effect of broadening

the applicability of the manufacturing exemption, thereby resulting in less

sales and use tax collections.

      The department’s primary argument in support of its position that the

amended exemption does not apply under the facts of this case is that

Sherwin-Williams is not a “manufacturer” for purposes of machinery used in

its retail operation. 3 The department relies in part on its administrative rule

defining the term “manufacturer”:

      “Manufacturer” means any . . . corporation that purchases,
      receives, or holds personal property for the purpose of adding to
      its value by any process of manufacturing, refining, purifying,
      combining of different materials, or by packing of meats with an
      intent to sell at a gain or profit.

Iowa Admin. Code r. 701—18.58(1). This definition essentially mirrors the

statutory definition of “manufacturer.”            Compare id., with Iowa Code

§ 428.20. The departmental rule goes on, however, to provide examples of

businesses that do and do not fall within this definition:

      Those who are in the business of printing, newspaper
      publication, bookbinding, lumber milling, and production of
      drugs and agricultural supplies are illustrative, nonexclusive
      examples of manufacturers.        Construction contracting;

        3The department also contends the spectrographic color-matching machines fail to

qualify for the exemption for the additional reason that they are not “directly used” in
processing as required by the manufacturing exemption. We discuss this contention
separately below.
                                              7
      remanufacture or rebuilding of tangible personal property (such
      as automobile engines); provision of health care; farming;
      transportation for hire; and the activities of restaurateurs,
      hospitals, medical doctors, and those who merely process data
      are illustrative, nonexclusive examples of businesses which are
      not manufacturers. See Associated General Contractors of Iowa
      v. State Tax Commission, 255 Iowa 673, 123 N.W.2d 922 (1963)
      and River Products Co. v. Board of Review of Washington County,
      332 N.W.2d 116 (Iowa Ct. App. 1982). The term “manufacturer”
      includes a contract manufacturer. Ordinarily, the word does not
      include those commercial enterprises engaged in quarrying or
      mining.

Id.

      Before we consider whether the department correctly decided that

Sherwin-Williams was not entitled to the manufacturing exemption for

equipment used in its retail outlets, we must determine the appropriate

standard of review.

      III. Scope of Review.

      Our review of this agency decision is governed by Iowa Code chapter

17A. See Iowa Code § 17A.19. 4 The department asserts it has discretion to

interpret the statutory manufacturing exemption and, therefore, urges us to

apply the standard of review reserved for matters vested in the discretion of

the agency:

      The court shall reverse, modify, or grant other appropriate relief
      from agency action, equitable or legal and including declaratory
      relief, if it determines that substantial rights of the person
      seeking judicial relief have been prejudiced because the agency
      action is any of the following:
                ....
             l. Based upon an irrational, illogical, or wholly
      unjustifiable interpretation of a provision of law whose
      interpretation has clearly been vested by a provision of law in the
      discretion of the agency.

Id. § 17A.19(10)(l) (emphasis added). Relying on this standard of review, the

department        claims    its   interpretation    of   section    422.45(27)(a)(1)––the


      4All   references to the Iowa Administrative Procedure Act are to the 2009 Iowa Code.
                                       8

manufacturing exemption––can be overturned only if it is “irrational, illogical

or wholly unjustifiable.” Id.

        Sherwin-Williams argues only an agency’s “official” interpretation of a

statute is entitled to deference, and here, the department has no rule on

point to which deference could be given. On the latter point, we agree. The

application of the manufacturing exemption in this case turns initially on

whether Sherwin-Williams is a “manufacturer” for purposes of its use of the

equipment at issue. With a few insignificant changes, the department’s rule

defining the term “manufacturer” simply parrots the statutory definition of

this term, and consequently, the rule does not interpret the statute.      See

Webster’s Third New International Dictionary 1182 (unabr. ed. 2002) (defining

“interpret” as “to explain or tell the meaning of”). The text that follows the

rule’s paraphrasing of the statutory definition lists examples of businesses

that do and do not fall within that definition. In our view, this part of the

rule represents the department’s illustrative application of the statutory

definition to specific businesses.         We conclude, therefore, that the

department has not further explained––by rule––the meaning of the term

“manufacturer.”

        We consider, then, whether only an agency’s interpretation of a statute

as embodied in an agency rule is entitled to deference or whether an

agency’s interpretation of a statute in a specific matter pending before it can

also be accorded deference. In addressing this question, we turn first to the

relevant language of section 17A.19(10)(l), which focuses on the agency’s

“interpretation of a provision of law whose interpretation has clearly been

vested by a provision of law in the discretion of the agency.”        There is

nothing in this language that restricts the “irrational, illogical or wholly

unjustifiable” standard of review to interpretations embodied in an agency

rule.   Therefore, the fact that an agency’s interpretation is made in the
                                              9

course of a pending proceeding does not mean the agency’s action cannot be

reviewed under this more deferential standard. 5

         We have recently clarified and refined our analysis for deciding when

an agency has been granted interpretative authority with respect to a

statute. See Renda v. Iowa Civil Rights Comm’n, 784 N.W.2d 8, 10–14 (Iowa

2010). In the absence of an express statement by the legislature granting

interpretive authority to an agency, we review “the precise language of the

statute, its context, the purpose of the statute, and the practical

considerations involved” to determine whether the interpretation of a statute

has been clearly vested in the discretion of the agency. Arthur E. Bonfield,

Amendments to Iowa Administrative Procedure Act, Report on Selected

Provisions to Iowa State Bar Association and Iowa State Government 63

(1998) [hereinafter “Bonfield, Amendments to Iowa Administrative Procedure

Act”].    This search for legislative intent focuses on the specific statutory

provision or language at issue. Renda, 784 N.W.2d at 12. Indications that

an agency has interpretive authority include rule-making authority,

decision-making or enforcement authority that requires the agency to

interpret the statutory language, and the agency’s expertise on the subject or

on the term to be interpreted. Id. at 12–14.

         With respect to the department of revenue, the legislature has granted

the department “the power and authority to prescribe all rules not



         5InGeneral Electric Co. v. Iowa State Board of Tax Review, this court held the
department of revenue was not entitled to deference with respect to the matter at issue in
that case. 702 N.W.2d 485, 489 (Iowa 2005). We noted there was no “agency regulation
that [was] directly on point,” and therefore, the agency had “no official interpretation to
which [the] court should defer.” Id. In reaching this conclusion, we relied on our decision
in City of Marion v. Iowa Department of Revenue & Finance, 643 N.W.2d 205, 206–07 (Iowa
2002). In City of Marion, we gave the department’s interpretation of a statute, as set forth in
an agency rule, “appropriate deference” under section 17A.19(11)(c). 643 N.W.2d at 207.
We did not state, however, that only an interpretation found in an agency rule could be
given deference. We disavow any contrary implication in our General Electric opinion.
                                      10

inconsistent with the provisions of [chapter 422], necessary and advisable for

its detailed administration and to effectuate its purposes.”       Iowa Code

§ 422.68(1).    Moreover, the department director’s enforcement power

certainly requires the director to interpret the Code provisions relevant to a

taxpayer’s liability. See id. § 422.70 (detailing director’s power to ascertain

correctness of return and to hold hearings on that issue). We have held in

prior cases that the legislature has given the department discretion to

interpret chapter 422. See, e.g., Ranniger v. Iowa Dep’t of Revenue & Fin.,

746 N.W.2d 267, 268 (Iowa 2008); City of Sioux City v. Iowa Dep’t of Revenue

& Fin., 666 N.W.2d 587, 590 (Iowa 2003).

      Notwithstanding these indications of interpretive discretion, it is

difficult to find a clear legislative delegation of interpretive authority with

respect to the precise statutory term at issue here––“manufacturer.”

Significantly, the dispute here does not center on an interpretation of the

manufacturing exemption in general or even on an interpretation of the

statutory definition of “manufacturer.” The issue here is simply whether a

retail establishment can be considered a “manufacturer” under the statutory

definition of that term.     The insurmountable obstacle to finding the

department has authority to interpret the word “manufacturer” in this

context is the fact that this word has already been interpreted, i.e.,

explained, by the legislature through its enactment of a statutory definition.

See id. §§ 422.45(27)(d)(4), 428.20. Under these circumstances, we do not

think the legislature intended that the department have discretion to

interpret––give meaning to––this term.

      Because the legislature has not clearly vested the interpretation of the

word “manufacturer” in the discretion of the agency, the deferential standard

of review in section 17A.19(10)(l) does not apply. Accordingly, we review the
                                      11

agency decision on this issue to determine whether it was “[b]ased upon an

erroneous interpretation of a provision of law.” See id. § 17A.19(10)(c).

      IV. Parties’ Positions.

      Sherwin-Williams contends the statutory definition of “manufacturer”

is unambiguous and clearly encompasses the equipment used in its retail

stores to produce usable paint. It asserts:

      Sherwin-Williams holds personal property for the purpose of
      adding to its value by a process of combining different materials,
      specifically precisely measured base and colorants, with a view
      to selling the newly created colored paint for a gain or profit.

Notably, the director similarly opined in his decision, “It is true that

Sherwin-Williams may hold property, mix materials, and sell the combined

product for a profit.”

      Nonetheless, the department contends that only equipment used by

one whose principal business is manufacturing is exempt. It suggests two

reasons for this result:    (1) the term “manufacturer” is ambiguous, and

ambiguous terms in a tax exemption statute must be interpreted in favor of

taxation; and (2) allowing the exemption to be applied to a retail

establishment    would     produce   the   absurd   result   of   including   “as

manufacturers restaurants, bars, lemonade stands, and various home-
improvement stores.” To avoid such a broad and absurd interpretation of

this tax exemption, argues the department, the word “manufacturer” must

be interpreted consistently with its common meaning, encompassing only

those whose principal business is manufacturing. Because the equipment at

issue here is used in establishments whose principal business is retail sales,

the department argues the manufacturing exemption does not apply.

      In considering the parties’ arguments, we keep in mind that “ ‘[t]ax

exemption statutes are construed strictly, with all doubts resolved in favor of

taxation.’ ” Dial Corp. v. Iowa Dep’t of Revenue, 634 N.W.2d 643, 646 (Iowa
                                      12

2001) (quoting Heartland Lysine, Inc. v. State, 503 N.W.2d 587, 588 (Iowa

1993)). Sherwin-Williams, as the party relying on the exemption, bears the

burden of proving it is entitled to the benefit of the exemption. See id.

      V. Discussion of “Manufacturer” Definition.

      We commence our discussion by determining whether the term

“manufacturer” is ambiguous. “A statute is ambiguous if reasonable minds

could differ or be uncertain as to the meaning of the statute.” Carolan v.

Hill, 553 N.W.2d 882, 887 (Iowa 1996); accord 2A Norman J. Singer &

J.D. Shambie Singer, Statutes and Statutory Construction § 46:4, at 179 (7th

ed. 2007) [hereinafter “Sutherland Statutory Construction”] (“A statute is

ambiguous when it is capable of being understood by reasonably well-

informed persons in two or more different senses.”). “Ambiguity may arise

from specific language used in a statute or when the provision at issue is

considered in the context of the entire statute or related statutes.” Midwest

Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002);

accord State v. McCullah, 787 N.W.2d 90, 94 (Iowa 2010) (“Ambiguity arises

in two ways––either from the meaning of specific words or ‘from the general

scope and meaning of the statute when all of its provisions are examined.’ ”

(quoting Carolan, 553 N.W.2d at 887)).

      It is significant that the legislature has chosen to define the word

“manufacturer” as used in the manufacturing exemption. “We recognize the

legislature ‘may act as its own lexicographer.’      When it does so, we are

normally bound by the legislature’s own definitions.” State v. Fischer, 785

N.W.2d 697, 702 (Iowa 2010) (quoting Henrich v. Lorenz, 448 N.W.2d 327,

332 (Iowa 1989)).     Under these circumstances, “ ‘the common law and

dictionary definitions which may not coincide with the legislative definition

must yield to the language of the legislature.’ ” Hornby v. State, 559 N.W.2d

23, 25 (Iowa 1997) (quoting State v. Steenhoek, 182 N.W.2d 377, 379 (Iowa
                                       13

1970)). Therefore, this court is obligated to apply the statutory definition of

“manufacturer” as written, absent an ambiguity in that definition.

       The department has not directed this court to any language in the

statutory definition that is capable of being reasonably understood to require

that   a   “manufacturer”    be   principally   engaged   in   the   business   of

manufacturing.     Rather, it relies on this court’s decision in Associated

General Contractors of Iowa v. State Tax Commission, 255 Iowa 673, 123

N.W.2d 922 (1963), in which we held the term “manufacturer” as used in

Iowa Code section 422.42(11) (1958) was ambiguous.

       In Associated General Contractors, the tax commissioner sought to

impose a use tax on a paving contractor’s mixing of asphaltic concrete that it

then used to pave the roadbed. 255 Iowa at 674, 123 N.W.2d at 922–23.

Iowa Code section 422.43 (1958) imposed a tax on “all sales of tangible

personal property . . . sold at retail in the state to consumers or users.” Id.

at 677, 123 N.W.2d at 924. The commissioner relied on section 422.42(11),

which provided that “ ‘a sale at retail’ ” included the use of “ ‘tangible

personal property by the manufacturer thereof, as building materials . . . in

the performance of construction contracts or for any other purpose except for

resale or processing.’ ”    Id. at 674, 123 N.W.2d at 923 (emphasis added)

(quoting Iowa Code § 422.42(11) (1958)).

       At that time, the term “manufacturer” was defined in section 428.20

similarly to the current definition, and this statutory definition was, by its

own terms, applicable to chapter 422. Id. at 675, 123 N.W.2d at 923; see

also Iowa Code § 428.20 (1958) (defining “manufacturer” as one who adds to

the value of personal property by any process of manufacturing “with a view

to selling the same for gain or profit”). Prior to the legislature’s enactment of

section 422.42(11), this court had suggested the intent underlying the

statutory definition of “manufacturer” in section 428.20
                                             14
       “was to exempt from taxation manufacturers who are engaged in
       manufacturing personal property for sale, and not builders or
       ‘constructors’ who are engaged in erecting permanent
       structures, such as paving, which become a permanent part of
       the real estate.”

Id. (emphasis added) (quoting In re Koss Constr. Co., 214 Iowa 125, 128, 241

N.W. 495, 497 (1932)). 6

       The ambiguity in section 422.42(11) arose from the fact that this

statute in essence provided that the manufacturer was the consumer of the

manufactured product. Id. at 677, 123 N.W.2d at 924. In other words, the

use contemplated in section 422.42(11) did not contemplate a sale of the

manufactured personal property to another party. Yet, that statute used the

defined      term,   “manufacturer,”       which      this   court    had   interpreted     to

contemplate a sale of the manufactured goods.

       The      commissioner        argued      the     legislature     used     the     term

“manufacturer” in section 422.42(11) in a sense different than the meaning

set forth in section 428.20, intending that term to encompass “one who

performs construction contracts making an article for use in performance of

such contracts.”       Id. at 676, 123 N.W.2d at 923.                This court noted the

ordinary      meaning     of   “manufacturer”         supported       the   commissioner’s

interpretation of the statute. Id. at 677–78, 123 N.W.2d at 924. For several

reasons, however, we concluded the term “manufacturer” in section

422.42(11) had the meaning ascribed to that term in section 428.20, and



       6It is clear from a reading of In re Koss Construction Co. that the factor prompting the
court to hold that a paving contractor was not a “manufacturer” was that the contractor did
not sell the product it manufactured. We said in our opinion,
       [i]t is apparent from the stipulation that the appellee does not make a
       product and sell it to some other party who in turn uses it to make a
       pavement. It not only “combines” the several ingredients, but it uses this
       combination itself in making the finished product which becomes a
       permanent part of the realty.
In re Koss Constr. Co., 214 Iowa at 127, 241 N.W. at 496.
                                               15

therefore, the paving contractor was not a “manufacturer” and was not

subject to the use tax. Id. at 680, 123 N.W.2d at 926.

       We do not find our conclusion that the term “manufacturer” was

ambiguous as used in section 422.42(11) to be persuasive authority for

finding the term “manufacturer” ambiguous as used in the manufacturing

exemption.        As our decision in Associated General Contractors made

apparent, there was an inherent conflict in section 422.42(11) because its

express terms encompassed a use that did not include a sale, which was at

odds with the statute’s reference to “the manufacturer,” a defined term that

envisioned a sale of the manufactured goods. The department has identified

no   similar,      inherent    conflict   in    section    422.45(27)(a)(1).         Section

422.45(27)(a)(1) exempts sales of equipment “used in processing by a

manufacturer,” a concept compatible with the statutory definition of

“manufacturer.”

       Perhaps the most support for the department’s position found in the

Associated General Contractors opinion is the following statement by this

court regarding an agency rule that referred to a “manufacturer”: “The word

‘manufacturer’ as used in [the agency rule] is used in the sense of one whose

principal business is manufacturing.” 255 Iowa at 679, 123 N.W.2d at 925.

The basis for this conclusion is not apparent from our opinion. 7                         More

importantly, however, this statement was not pertinent to our resolution of



       7The   agency rule provided:
                “Where a manufacturer uses or consumes tangible personal property
       which has been made, compounded, fabricated or assembled by him, he is
       liable for either retail sales or use tax as the case may be. The measure of the
       tax is two per cent of the cost of the manufacture of the tangible personal
       property so used and consumed.”
Associated Gen. Contractors, 255 Iowa at 678, 123 N.W.2d at 925 (quoting agency rule 10).
The court did not explain how this language supported the conclusion that the rule refers to
“one whose principal business is manufacturing.”
                                            16

the statutory interpretation issue in that case, which depended on whether

one could be a “manufacturer” if one did not intend to sell the manufactured

property to another. Whether a manufacturer was only “one whose principal

business is manufacturing” was not outcome determinative in that case or

even pertinent to the basis for our ultimate decision.                     This court’s

observation regarding the agency rule was, therefore, dicta. See Wilson v.

Farm Bureau Mut. Ins. Co., 714 N.W.2d 250, 260 (Iowa 2006) (refusing to

follow reasoning expressed in prior case because it was dicta, stating

reasoning was not pertinent to issue that resulted in reversal); Keystone

Nursing Care Ctr. v. Craddock, 705 N.W.2d 299, 308 (Iowa 2005) (disavowing

discussion of statute in prior case with respect to specific factual scenario,

concluding it was dicta because claim made in prior case did not involve

facts addressed in dicta).

       Although the department has not demonstrated an ambiguity arising

from the language of the statutory definition of “manufacturer,” an ambiguity

may arise from the general scope of the statute when it is considered in its

entirety. As noted earlier, the department claims a literal interpretation of

the statutory definition of “manufacturer” would result in application of the

manufacturing exemption to businesses that typically are not viewed as

being engaged in manufacturing.           The department suggests such a broad

application of the exemption is absurd.

       This court has said that, “[w]here the language is of doubtful meaning,

or where an adherence to the strict letter would lead . . . to absurdity, or to

contradictory provisions, the duty of ascertaining the true meaning devolves

upon the court.” 8 Case v. Olson, 234 Iowa 869, 872, 14 N.W.2d 717, 719


       8This court has also noted that “[a]voidance of unreasonable or absurd consequences
is one of several rules of construction courts apply only in case of ambiguity.” Kruck v.
Needles, 259 Iowa 470, 478, 144 N.W.2d 296, 301 (1966) (emphasis added).
Notwithstanding this statement, we believe that, when a literal interpretation of a statute
                                       17

(1944) (emphasis added); accord Sutherland Statutory Construction § 45:12,

at 101 (“It is fundamental, however, that departure from the literal

construction of a statute is justified when such a construction would

produce an absurd and unjust result and would clearly be inconsistent with

the purposes and policies of the act in question.”).       Nonetheless, we are

mindful of the cautionary advice of one commentator that “the absurd

results doctrine should be used sparingly because it entails the risk that the

judiciary will displace legislative policy on the basis of speculation that the

legislature could not have meant what it unmistakably said.” Sutherland

Statutory Construction § 45:12, at 105–07.        The Hawaii Supreme Court

articulated the proper balance in such situations when it stated:

      [E]ven in the absence of statutory ambiguity, departure from
      literal construction is justified when such construction would
      produce an absurd and unjust result and the literal
      construction in the particular action is clearly inconsistent with
      the purposes and policies of the act.

Pac. Ins. Co. v. Or. Auto. Ins. Co., 490 P.2d 899, 901 (Haw. 1971).

      As noted, the department contends application of the manufacturing

exemption to establishments whose principal business is retail sales

produces an absurd result. The absurdity of this result is not self-evident,
however. Although it may appear counterintuitive, we will not ignore clear

legislative language merely because it leads to a result that seems contrary

to the court’s expectations.    See State ex rel. Miller v. Cutty’s Des Moines

Camping Club, Inc., 694 N.W.2d 518, 524–25 (Iowa 2005) (relying on

statutory definition, even though it was counterintuitive).

      The department points out a potential contradiction, however,

observing the same definition of “manufacturer” at issue here applies to

_________________________
results in absurd consequences that undermine the clear purpose of the statute, an
ambiguity arises.
                                      18

property-tax issues. See generally Sutherland Statutory Construction § 46:4,

at 188–89 (“Even when a statute appears unambiguous on its face it can be

rendered ambiguous by its interaction with and its relation to other

statutes.”). Under the agency rules applicable to property taxes, the agency

classifies as industrial only “manufacturing establishments.” Iowa Admin.

Code r. 701—71.1(6)(a). Under this rule, which we quoted previously,

        [a] manufacturing establishment is a business entity in which
        the primary activity consists of adding to the value of personal
        property by any process of manufacturing, refining, purifying,
        the packing of meats, or the combination of different materials
        with the intent of selling the product for gain or profit.

Id. (emphasis added).     In contrast, the department’s classification rules

provide that “commercial real estate” includes land and structures “which

are primarily used or intended as a place of business where goods, wares,

services, or merchandise is stored or offered for sale at wholesale or retail.”

Id. r. 701—71.1(5) (emphasis added).       Sherwin-Williams’ retail stores are

assessed for property-tax purposes as commercial real estate, not industrial

real estate.

        The primary-use requirement employed in classifying property as

industrial or commercial makes sense because the entirety of the real estate

(land, improvements, and structures) is subject to property tax. Therefore,

the whole must be classified as either industrial or commercial; it cannot be

both.    See id. r. 701—71.1(1) (“There can be only one classification per

property. An assessor shall not assign one classification to the land and a

different classification to the building or separate classifications to the land

or separate classifications to the building (dual classification).”). It makes

sense, then, that the classification of the whole would depend on the primary

use of the property.
                                              19

       But for purposes of taxing the use of equipment located on the

property, it is not absurd or illogical to impose the tax based on the use of

the specific equipment as opposed to the taxpayer’s use of the premises as a

whole. See Heartland Lysine, Inc., 503 N.W.2d at 589 (stating “the propriety

of a use tax assessment or exemption turns largely on the specific use made

of the property”). Consequently, we are not convinced it would be absurd for

the legislature to accord a retailer a manufacturer’s exemption when specific

equipment is used by the retailer in the same manner and for the same

purpose as such equipment would be used by a taxpayer whose principal

business is manufacturing. 9

       9Our research revealed two state agency proceedings in which a taxing authority

considered the very process at issue here––the mixing of base and colorants to produce
usable paint––for purposes of determining the applicability of relevant tax statutes. See The
Sherwin-Williams Co. v. Comm’r of Revenue, No. C259901, 2003 WL 21040567 (Mass. App.
Tax Bd. May 9, 2003) (administrative review of decision of the commissioner of revenue); Op.
Comm’r of Tax. & Fin., No. TSB–A–99(21)5, 1999 WL 304816 (N.Y. Tax. Comm’r April 8,
1999) (advisory opinion of commissioner of taxation and finance). In both proceedings,
Sherwin-Williams’ retail outlets were given tax treatment reserved for manufacturers or
manufacturing, some indication that the application of Iowa’s manufacturing exemption to
Sherwin-Williams’ retail outlets is not absurd.
       In the Massachusetts administrative proceeding, the appellate tax board ruled that
Sherwin-Williams’ retail stores in that state qualified as “manufacturing corporations” based
on their business of “mix[ing] colorants with base paint to create colored paints” for sale.
2003 WL 21040567, at *1, *5. The facts before the board showed that “77% of Sherwin-
Williams’ sales are from the sale of paint, and that 80–90% of those sales are sales of
colored paint produced at the retail stores.” Id. at *2. The board stated these activities
       fall within the broad definition ascribed to manufacturing of “change wrought
       through the application of forces directed by the human mind, which results
       in the transformation of some preexisting substance or element into
       something different, with a new name, nature or use.”
Id. at *5 (quoting Assessors of Boston v. Comm’r of Corps. & Taxation, 84 N.E.2d 129, 136
(Mass. 1949)).
        In the New York tax commissioner’s advisory opinion, Sherwin-Williams asked
whether its “mixing and blending machinery and equipment, and related computer
equipment, used in the paint tinting process” in its company-owned retail stores were
exempt from sales and use tax. 1999 WL 304816, at *1. It relied on an exemption for
“ ‘[m]achinery or equipment for use . . . directly and predominantly in the production of
tangible personal property . . . by manufacturing, processing . . . .’ ” Id. at *2 (quoting N.Y.
Tax Law § 1115(a)(12)). The commissioner opined that “the Color Matching Systems,
Automatic Colorant Dispensers, Shakers and related computer equipment [were] used
                                            20

       The department also contends giving a retailer like Sherwin-Williams

the benefit of the manufacturing exemption is contrary to the purpose

underlying this exemption.          Quoting an Oklahoma case, the department

suggests “[t]he object of this exemption was undoubtedly to encourage

manufacturing industries to locate in the state.” Dairy Queen of Okla., Inc. v.

Okla. Tax Comm’n, 238 P.2d 800, 802 (Okla. 1951).                    An Arizona court,

however, has suggested a broader purpose of such an exemption: “The

purpose is to encourage manufacturing businesses and investment in

manufacturing equipment by exempting sales of such equipment.” Ariz. Dep’t

of Revenue v. Blue Line Distrib., Inc., 43 P.3d 214, 216 (Ariz. Ct. App. 2002)

(emphasis added). We cannot conclude that allowing Sherwin-Williams an

exemption for its investment in equipment to process paint at its retail

locations in Iowa is contrary to our legislature’s purpose in adopting a

manufacturing exemption. See State v. Hopkins, 465 N.W.2d 894, 896 (Iowa

1997) (stating court looks “beyond the ordinary meaning of the statutory

language when a statute’s literal terms are in conflict with its general

purpose” (emphasis added)). A significantly stronger showing that legislative

intent would be undermined by permitting an exemption under the facts of

this case is required before we will ignore the statutory definition of

“manufacturer.” See Sutherland Statutory Construction § 46:4, at 178 (“The

plain meaning of the statute is conclusive, except in a case where a literal

application of the statute will produce a result demonstrably at odds with the

intention of the drafters.” (Emphasis added.)).

       We have also examined four cases cited by the department in support

of its position and conclude they are readily distinguishable. See Blue Line

Distrib., 43 P.3d 214; HED, Inc. v. Powers, 352 S.E.2d 265 (N.C. Ct. App.
_________________________
directly in the production of paint for sale” and, therefore, were exempt from sales and use
tax. Id. at *4.
                                      21

1987); McDonald’s Corp. v. Okla. Tax Comm’n, 563 P.2d 635 (Okla. 1977);

Dairy Queen of Okla., Inc., 238 P.2d 800.      In each of these cases, retail

establishments, Little Caesar’s Pizza, Hardee’s, McDonald’s, and Dairy

Queen, were denied the benefit of a manufacturing exemption from sales or

use tax because they were not a manufacturer or did not engage in

manufacturing within the meaning of the statutory exemption.         Blue Line

Distrib., 43 P.3d at 216; HED, Inc., 352 S.E.2d at 267; McDonald’s Corp., 563

P.2d at 641; Dairy Queen of Okla., Inc., 238 P.2d at 802.

      In the Arizona case, the exemption applied to sales of “ ‘[m]achinery, or

equipment, used directly in manufacturing, [and] processing . . . operations.

The terms “manufacturing” [and] “processing” . . . as used in this paragraph

refer to and include those operations commonly understood within their

ordinary meaning.’ ”     Blue Line Distrib., 43 P.3d at 215 (emphasis added)

(quoting Ariz. Rev. Stat. § 42–5061(B)(1) (Supp. 2000)). Given the absence of

a statutory definition of “manufacturing,” there was no barrier to the

reviewing court’s acceptance of the agency’s rule that interpreted the

exemption as applying only to “ ‘[m]anufacturing [as] the performance as a

business of an integrated series of operations’ that transform personal

property into a different product.” Id. (quoting Ariz. Admin. Code r. 15–5–

120(A)).   Applying this agency rule, the Arizona court concluded a Little

Ceasar’s pizzeria is not commonly understood to be a manufacturing

operation. Id. at 216.

      The North Carolina exemption considered in the HED, Inc. case applied

to “manufacturing industries and plants.”      352 S.E.2d at 266.     Like the

Arizona statute, the North Carolina statute did not define these terms, so the

court applied the common meaning of these words. Id. The North Carolina

court reviewed decisions from other jurisdictions that had considered

whether a restaurant qualifies as a manufacturer, and observed:
                                            22
       One discernible pattern is that when the statutes do not provide
       a definition of manufacturing, as is the case in North Carolina,
       courts tend to apply a common sense approach and conclude
       that a restaurant is not a manufacturer. On the other hand,
       when the statute does provide a definition, that definition is
       mechanically applied and courts conclude that a restaurant is a
       manufacturer.

Id. at 267.      Relying on the common meaning of “manufacturing,” the

North Carolina      court    concluded      a    Hardee’s    restaurant     was     not   a

“manufacturing” industry or plant. Id.

       In Oklahoma, the manufacturing exemption is more explicit.                         It

allowed an exemption for the use of certain machinery and equipment

“ ‘used by persons in the operation of manufacturing plants.’ ” McDonald’s

Corp., 563 P.2d at 636 (quoting Okla. Stat. tit. 68, § 1305(p) (1971)). The

Oklahoma statute further states: “ ‘The term “manufacturing plants” shall

mean     those    establishments      primarily    engaged      in   manufacturing        or

processing operations, and generally recognized as such.’ ”                Id. (emphasis

added) (quoting Okla. Stat. tit. 68, § 1305(p)). Clearly, the Oklahoma court’s

decisions in McDonald’s Corp. and Dairy Queen of Oklahoma, Inc. are readily

distinguishable given the clearly expressed legislative intent that the

exemption only be given to businesses primarily engaged in manufacturing.

The comparable Iowa statute simply does not contain that limitation. 10

       Finally, we state that we are also influenced by the legislative history

of the manufacturing exemption.            As we explained earlier in our opinion,

prior to the 1997 amendment, the exemption encompassed machinery and

equipment (1) “used in the manner described in section 428.20” and (2)

qualifying as “real property within the scope of section 427A.1[(1)(e)].” Iowa


       10Some    states specifically exclude certain businesses or establishments that
incidentally engage in manufacturing or processing. See, e.g., Elias Bros. Rests., Inc. v.
Treasury Dep’t, 549 N.W.2d 837, 839 (Mich. 1996) (applying exemption that excluded “ ‘the
preparation of food and beverages by a retailer for retail sale’ ” (quoting Mich. Comp. Laws
§ 205.94(g)). Iowa’s statutory exemption does not do so.
                                       23

Code § 422.45(27) (1997) (emphasis added). Section 427A.1(1)(e) referred to

machinery used in “manufacturing establishments,” a term not defined by

the legislature. Id. § 427A.1(1)(e). The prior statute did not use the term

“manufacturer” and did not otherwise unambiguously incorporate that term

or its full definition into the manufacturing exemption other than to

incorporate “the manner” of use of the machinery and equipment as

described in section 428.20. Under the prior statute, therefore, the agency

had   much    greater   leeway   in   interpreting   the   term   “manufacturing

establishment” in a manner consistent with its meaning in the property-law

context.

      When the legislature amended the manufacturing exemption in 1997,

however, it had the stated intent to broaden its applicability. To achieve this

purpose, the legislature removed the reference to section 427A.1(1)(e) and its

focus on “manufacturing establishments” and in its place imposed the

requirement that the entity seeking the exemption be a “manufacturer” “as

defined in section 428.20.” We are convinced it would be contrary to the

principles that guide our interpretation of legislative enactments to ignore

these changes and give the exemption the same meaning with respect to the

taxpayers who qualify for the exemption that this statute had prior to its

amendment in 1997.

      Accordingly, we reject the department’s contention that only those

taxpayers who are primarily engaged in manufacturing are eligible for the

exemption. The department’s interpretation of section 428.20 is, therefore,

erroneous. We agree with the district court that Sherwin-Williams qualifies

as a “manufacturer” under section 422.45(27).

      VI. Direct Use of Spectrographic Color-Matching Machine.

      In addition to concluding Sherwin-Williams was not a “manufacturer,”

the department’s director ruled the spectrographic color-matching machine
                                     24

did not qualify for the exemption because it was not “directly and primarily

used in processing” as required by section 422.45(27)(a)(1).      Before we

determine whether this ruling should be upheld, we address the standard

applicable to our review.

        A. Standard of Review.   The director’s decision turned on whether

the color-matching machine was used “directly” in processing.      The term

“directly” is not defined in the statute, but is defined in an agency rule.

Sherwin-Williams does not question the agency’s definition of this term.

Rather, the dispute between the parties with respect to the color-matching

machine is the director’s application of that definition to the facts of this

case.

        In a contested case such as the one before us, the agency has

discretion in its application of the law to the facts. Iowa Ag Constr. Co. v.

Iowa State Bd. of Tax Review, 723 N.W.2d 167, 174 (Iowa 2006) (holding

application of law to facts in proceeding in which taxpayer sought refund of

sales/use tax was vested in the discretion of the agency); see also Drake

Univ. v. Davis, 769 N.W.2d 176, 183 (Iowa 2009) (holding workers’

compensation commissioner had discretion to apply the law to the facts in

contested-case proceeding under workers’ compensation statute). Therefore,

the appropriate standard of review is found in Iowa Code section

17A.19(10)(m). Iowa Ag Constr. Co., 723 N.W.2d at 174 (applying standard

of review found in section 17A.19(10)(m) to agency’s application of law to

facts in decision denying sales/use tax refund); see also Insituform Techs.,

Inc. v. Employment Appeal Bd., 728 N.W.2d 781, 801 (Iowa 2007) (applying

same standard of review to agency’s assessment of penalty for OSHA

violation).
                                        25

      Section 17A.19(10)(m) provides:

      The court shall reverse, modify, or grant other appropriate relief
      from agency action, equitable or legal and including declaratory
      relief, if it determines that substantial rights of the person
      seeking judicial relief have been prejudiced because the agency
      action is any of the following:
             ....
            m. Based upon an irrational, illogical, or wholly
      unjustifiable application of law to fact that has clearly been
      vested by a provision of law in the discretion of the agency.

A decision is “irrational” when it is “not governed by or according to reason.”

Webster’s Third New International Dictionary 1195. A decision is “illogical”

when it is “contrary to or devoid of logic.”       Id. at 1127.     A decision is

“unjustifiable” when it has no foundation in fact or reason. See id. at 2502

(defining “unjustifiable” as “lacking in . . . justice”); id. at 1228 (defining

“justice” as “the quality or characteristic of being just, impartial or fair”); id.

(defining “just” as “conforming to fact and reason”). One commentator has

suggested that the “irrational, illogical, or wholly unjustifiable” standard of

review is substantively similar to “the unreasonable, arbitrary, capricious,

and abuse of discretion standards.”           Bonfield, Amendments to Iowa

Administrative Procedure Act 69.

      B. Discussion. As noted, the department asserts the spectrographic

color-matching machine does not qualify for the tax exemption because it is

not “directly and primarily used in processing” as required by section

422.45(27)(a)(1).    The color-matching machine determines the mixing

formula to achieve the precise color desired. In explaining his decision that

this machine did not qualify for the exemption, the director stated:

             The Spectrograph machine does not come into contact
      with the base or final product being purchased by the customer
      in any way. This machine does not change the substance or
      color of the paint. Instead, this color eye only provides Sherwin-
      Williams with a formula for the color of paint desired by the
      customer. Consequently, . . . the Spectrograph machine is one
                                       26
       step removed from processing and would not qualify for the
       exemption from Iowa sales tax under this statute.

       Iowa Code section 422.45(27)(d)(5) defines processing as “a series of
operations in which materials are manufactured, refined, purified, created,

combined or transformed by a manufacturer, ultimately into tangible

personal property.”   The statute does not define “directly,” but an agency

rule states that “[p]roperty is ‘directly used’ only if it is used to initiate,

sustain, or terminate an exempt activity.”         Iowa Admin. Code r. 701—

18.58(1).   This rule suggests three factors to consider in determining

whether property is “directly used”:

             1. The physical proximity of the property in question to
       the activity in which it is used;
              2. The proximity of the time of use of the property in
       question to the time of use of other property used before and
       after it in the activity involved; and
             3. The active causal relationship between the use of the
       property in question and the activity involved.

Id.   Rule 701—18.58(1) also states:        “The fact that a particular piece of

property may be essential to the conduct of the activity because its use is

required either by law or practical necessity does not, of itself, mean that the

property is directly used.”   The agency’s definition is consistent with the

dictionary meaning of “directly”: “without any intervening space or time :

next in order.” Webster’s Third New International Dictionary 641; see Iowa

Ag Constr. Co., 723 N.W.2d at 176 (noting department’s definition of

“directly” as used in the section 422.45(39) exemption tracked dictionary

definition, citing Iowa Admin. Code r. 701—18.48(1)(e)).

       Applying the agency rule and the factors deemed relevant to

determining when property is “directly used” in processing, we conclude the

agency’s decision that the color-matching machines do not qualify for the

manufacturing exemption is wholly unjustifiable.            In contrast to the
                                      27

machinery and equipment considered in the cases cited by the department,

which we discuss below, the color-matching machine plays an integral role

in the actual processing of usable paint. This machine initiates the in-store

process of manufacturing usable paint by selecting the formula for the

customer’s desired color. The color-matching machine is integrated with the

mini accutinter, sending the formula directly to the mini accutinter where

the proper type and amount of colorant is dispensed into the can of base

paint. The color-matching machine is located in physical proximity to the

mini accutinter and the mixer/shaker. The time of use of the color-matching

machine is immediately prior to the tinting of the base paint. In addition,

the color-matching machine has an active causal connection to the

processing of the paint, dictating the type and amount of colorant and base

paint used in that process.        We are convinced the director’s contrary

conclusion does not conform to the facts and is an unreasonable application

of the agency rule.

      We have studied the four cases upon which the department relies to

support the director’s determination that the color-matching machines are

not “directly used” in processing paint and find them distinguishable.     In

Iowa Ag Construction Co., we affirmed the denial of an exemption for a

mower used to cut grass around hog confinement centers and associated

sewage lagoons because it was not used directly in the production of

livestock, as required by the exemption. 723 N.W.2d at 180–81. The mower

was not part of the process of raising the livestock; it simply supported the

ancillary environment for that process, a very different situation than that

presented in the case before us.

      In Heartland Lysine, this court affirmed the department’s denial of an

exemption for electrical equipment that regulated the flow of electricity in a

lysine plant to ensure the production equipment provided the environment
                                       28

necessary for the manufacture of lysine.        503 N.W.2d at 590–91.      The

exemption at issue in that case required that the equipment “ ‘be directly

and primarily used in the manner described in section 428.20 in processing

tangible personal property.’ ”   Id. at 590 (quoting Iowa Code § 422.45(27)

(1987)). Noting the electrical equipment’s function was “preliminary to the

actual processing,” this court held the equipment did not “directly perform

the manufacturing functions contemplated by section 428.20.” Id. at 591.

In contrast, the color-matching machine at issue in the present case initiates

the tinting process by sending the required formula to the mini accutinter

which then dispenses colorant into the base in accordance with that

formula. See Iowa Admin. Code r. 701—18.58(1) (“Property is ‘directly used’

only if it is used to initiate, sustain, or terminate an exempt activity.”

(Emphasis added.)).

      A third case cited by the department, Dial Corp., 634 N.W.2d 643,

involved an exemption that also had the same language as the statute at

issue in the present appeal: “directly and primarily used in . . . processing.”

634 N.W.2d at 647 (quoting Iowa Code § 422.45(27) (1997)). In Dial Corp.,

we affirmed the denial of the taxpayer’s exemption request for machinery

and equipment that produced usable electricity for the assembly line,

holding the equipment played “no part in changing the form, context or

condition” of the product being manufactured.          Id. at 648–49.   Citing

Heartland Lysine, we also noted the equipment’s “function [was] preliminary

to processing, not part of it.”     Id. at 649 (emphasis added).        As the

undisputed facts in the present case show, the function of the color-

matching machine is not “preliminary to processing”; rather, this machine

initiates the process, a function falling within the agency rule.
      Finally, in Dain Manufacturing Co. v. Iowa State Tax Commission, 237
Iowa 531, 22 N.W.2d 786 (1946), we held a drill grinding machine “used to
                                       29

service the machinery or equipment that was being ‘directly’ used in the
actual act of processing property” was not within an exemption for
equipment “directly used” in manufacturing. 237 Iowa at 538, 22 N.W.2d at
790–91.   We noted the drill grinding machine “did not come in physical
contact with the property that was being made salable or . . . take any part in
the actual processing of that property.”     Id. at 538, 22 N.W.2d at 791
(emphasis added).    This case is also clearly distinguishable from the case
before us in which the color-matching machine played an integral part in the
actual processing of the paint.
      While these cases provide some illumination of the meaning of
“directly used,” the department’s own rule on this subject is the most
pertinent to our analysis.         Focusing on that rule, we conclude the
department’s application of its rule to the facts of this case to reach a
conclusion that the color-matching machines are not “directly used” in
processing salable paint has no foundation in fact or reason and is,
therefore, wholly unjustifiable.    Accordingly, we reverse the department’s
decision holding the color-matching machines are not eligible for the
manufacturing exemption.
      VII. Conclusion and Disposition.
      We hold Sherwin-Williams qualifies for an exemption from use tax for
the spectrographic color-matching machines, dispensing/tinting machines,
known as mini accutinters, and the mixers/shakers used in its retail stores
to process base paint and colorant into usable, salable paint. The decision
of the court of appeals and the judgment of the district court are affirmed.
We remand this case to the district court for remand to the department for
further proceedings consistent with our opinion.
      DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT
COURT AFFIRMED; CASE REMANDED.
      All justices concur except Wiggins, J., who takes no part.
