Interlake, Inc. v. Kosydar , 42 Ohio St. 2d 457 ( 1975 )

Per Curiam.

The issue in this case is whether the coking equipment is excepted from Ohio sales and use taxes.

Appellant contends that the equipment is excepted from the tax by R. C. 5739.01, which reads, in part:

“(E) ‘Retail sale’ * * # include[s] all sales except those in which the purpose of the consumer is:

(C # # #

“(2) * * * to use or consume the thing transferred directly in the production of tangible personal property

for sale by manufacturing, processing * * * .

* #

“ (S) ‘ Manufacturing’ or ‘processing ’ means the transformation or conversion of material or things into a different state or form from that in which they originally existed * *

In R. R. Donnelley & Sons Co. v. Porterfield (1972), 30 Ohio St. 2d 219, 224, 284 N. E. 2d 171, this court said:

“While the addition of the word ‘directly’ in the 1935 amendment is well known, the importance of the addition of other language is sometimes overlooked. The 1935 amendment did not except from the sales tax all sales where the purpose of the consumer was ‘to use or consume the thing transferred directly in manufacturing * * # [or] processing.’ Instead, the exception from taxation was limited to sales where the purpose of the consumer was ‘to use or consume the thing transferred directly in the production of tmgible personal property for sale by manufacturing [or] processing.’ (Emphasis added.)”

In Ohio Ferro-Alloys Corp. v. Kosydar (1973), 34 Ohio St. 2d 113, 115, 296 N. E. 2d 533, the court said:

“For materials or equipment to be excepted under the ‘manufacturing exception,’ they must be involved in the manufacturing process and that involvement must be direct.

“First, it is necessary to determine the beginning and end of the manufacturing process; anything that is used before or after such process is not within the exception of R. C. 5739.01(E) (2). This court, in Canton Malleable Iron Co. v. Porterfield (1972), 30 Ohio St. 2d 163, 170, held that ‘the terms “manufacturing” and “processing” imply essentially a transformation or conversion of material or things into a different state or form from that in which they originally existed—the actual operation incident to changing them into marketable products.’ ”

In the present case, the “tangible personal property for sale” that is produced by appellant, Interlake, is the merchant pig iron. The manufacturing process for which a beginning and end must be determined is the one that produces that marketable product. The transformation of the raw materials, iron ore, coke and limestone, into the particular article to be sold, merchant pig iron, begins in the blast furnace where they are heated together. See Jackson Iron & Steel Co. v. Glander (1950), 154 Ohio St. 369, 96 N. E. 2d 21.

This court finds, therefore, that the excepted manufacturing in this case begins in the blast furnace. The coking equipment is involved in “ * * operations preliminary and preparatory to manufacturing or processing, and are not used or consumed directly in producing tangible personal property for sale by manufacturing or processing within the contemplation of the applicable statutes, and hence their purchase or use was not excepted from taxation’ * * * .” Ohio Ferro-Alloys Corp. v. Kosydar, supra, at page 117.

Appellant also argues that it is entitled to an exemption under Tax Commissioner’s Rule TX-15-08(9), which states:

“Persons engaged in the production of tangible personal property for sale by manufacturing, processing, assembling or refining, may claim exemption when purchasing:

U # # #

“ (2) Production machinery, which means any machinery, equipment or other personal property which acts upon the materials or parts during the conversion of or assembling of the materials or parts into a finished product produced for sale.

I i # # #

“ (9) Machinery, equipment or other personal property used primarily to produce nonpurchased gas, water, steam or other products used to operate or to maintain the operating capacity of the machinery, equipment or other personal property in (2), (5), (8), (11) and (12) and fuel for such machinery, equipment or other personal property to the extent that the gas, water, steam or other products so produced are used to operate or to maintain the operating capacity of the machinery and equipment or other personal property in (2), (5), (8), (11) and (12) and equipment which transmits the gas, water, steam or other products to the machinery, equipment or other personal property in (2), (5), (8), (11) or (12).”

The question of the application of TX-15-08(9) to the instant case has been rendered moot by the foregoing determination that the equipment is not excepted from taxation by R. C. 5739.01(E) (2).

Decision affirmed.

O’Neill, C. J., Herbert, Stern, Celebrezze and W. Brown, JJ., concur. Corrigan and P. Brown, JJ., dissent.