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    Texaco Refining and Marketing Company, Inc. v. Commissioner of Revenue Services
    (12966)
    Peters, C. J., Healey, Shea, Dupont and McKeever, Js.
    Argued February 5
    decision released March 24, 1987

      John W. Cannavino, with whom were William H. Narwold, Herbert W. Powell, pro hac vice, and, on the brief, Medina S. Vasily, for the appellant (plaintiff).

      Edward T. Blair, assistant attorney general, with whom were Richard K. Greenberg, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Peters, C. J.

The sole issue in this case, which comes to us by way of reservation, is whether moneys collected as a tax from customers are includable in the Connecticut gross earnings tax on the sale of petroleum products. The plaintiff, Getty Refining and Marketing Company, Inc., appealed to the Superior Court from a decision of the defendant commissioner holding that the plaintiff had underpaid the gross earnings tax imposed by General Statutes § 12-587 for the years 1980 through 1984. The trial court granted a motion for reservation upon stipulated facts to determine the propriety of the defendant’s computation of the plaintiff’s gross earnings tax. We conclude that the reserved question is to be answered in the affirmative.

The parties stipulated to the following facts. The plaintiff is a Delaware corporation authorized to do business in this state. On its invoices to Connecticut purchasers of its petroleum products, the plaintiff charged these purchasers separately for the sales price and for the 2 percent Connecticut gross earnings tax that it collected from them pursuant to General Statutes § 12-587. In filing its quarterly gross earnings tax returns between December 31, 1980, and March 31, 1984, the plaintiff did not report as gross earnings the 2 percent which, in its invoices, it had labeled as a separate charge for the gross earnings tax.

Disagreeing with the plaintiffs exclusion of the 2 percent in its calculation of the gross earnings tax, the department of revenue services notified the plaintiff that it owed an additional gross earnings tax on the excluded 2 percent charge for the relevant tax years. The plaintiff sought administrative relief from this ruling pursuant to General Statutes § 12-595 but the defendant, after a hearing, upheld the department’s conclusion that the plaintiff was liable for the additional tax, interest and penalties. The plaintiff paid this amount in full, under protest, as it was required to do by General Statutes § 12-600, before commencing its appeal to the trial court pursuant to General Statutes § 12-597.

In the trial court, the parties jointly requested that the case be reserved for appellate advice on the stated question of law whether the gross earnings upon which § 12-587 levies a tax includes the 2 percent charge collected by the plaintiff taxpayer from its customers. The trial court granted this request, and, after transfer of the appeal to this court, the present proceedings ensued.

Before we reach the merits of the reserved question, three preliminary matters warrant brief clarification. First, because the statute authorizing reservations, General Statutes § 52-235, does not require that a case be at the final judgment stage when the reservation is brought, this court has jurisdiction to decide the reserved question even though the case is here on an interlocutory appeal. Practice Book § 4147 (formerly § 3133); State v. Sanabria, 192 Conn. 671, 681-85, 474 A.2d 760 (1984); New Haven Metal & Heating Sup ply Co. v. Danaher, 128 Conn. 213, 218, 21 A.2d 383 (1941). Second, because this case is an appeal from an adverse ruling of the commissioner of revenue services, the plaintiff is entitled to a plenary review of its challenge of its tax assessment, and is not limited to an administrative appeal under the Uniform Administrative Procedure Act. General Statutes § 4-186; Practice Book § 257 (d) (3); see Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987); Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 303, 397 A.2d 1367 (1978). Third, because the question posed by the reservation principally concerns the imposition of a tax, and not a claimed right to an exemption or a deduction, the taxing statute must be strictly construed against the taxing authority and in favor of the taxpayer. Schlumberger Technology Corporation v. Dubno, supra, 420-23; The B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 8-9, 490 A.2d 991 (1985).

The crucial question raised by the reservation is what meaning to attach to that portion of § 12-587 which imposes a 2 percent tax on “the amount of gross earnings from the sale of petroleum products within this state.” We approach this question according to well established principles of statutory construction designed to further our fundamental objective of ascertaining and giving effect to the apparent intent of the legislature. State v. Kozlowski, 199 Conn. 667, 673, 509 A.2d 20 (1986); Hayes v. Smith, 194 Conn. 52, 57, 480 A.2d 425 (1984). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987); State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986).

Starting, as we must, with the language of the statute itself, we note that § 12-587 defines “gross earnings” in two alternative ways: “(1) in the case of a corporation, those earnings from the sale of petroleum products to which the sales factor is applied under subdivision (3) [now (b)] of section 12-218 and (2) in the case of any other company, those earnings from such sales made within this state.” Both parties have addressed their attention only to subsection (1). The sales factor of General Statutes § 12-218, to which § 12-587 (1) refers, is one component of a three factor formula designed to apportion to Connecticut, for the purposes of the corporation business tax, a portion of the taxable income of multistate corporations whose income is derived, inter alia, from the sale of personal property. Schlumberger Technology Corporation v. Dubno, supra, 416. This factor is defined, in § 12-218, as “the part of the taxpayer’s gross receipts from sales or other sources during the income year . . . which is assignable to the state.” The difficulty created by the cross-reference to § 12-218 is the statutory disparity between the coverage of the petroleum products tax and the corporation business tax. While § 12-587 purports to tax “gross earnings,” the income that § 12-218 apportions to this state is a taxpayer’s “net income.”

In the face of this statutory conundrum, the parties have, not surprisingly, proffered alternate constructions of “gross earnings” in § 12-587. Their disagreement revolves around four issues. First, does the statutory definition of “gross earnings” in § 12-587 have a plain and unambiguous meaning that we must enforce? Second, if the statute requires construction beyond its plain meaning, what inferences should be drawn from its legislative history and the purpose it was intended to serve? Third, what insights do related statutes offer about the legislature’s intention in its choice of language in this section? Fourth, to what extent does the statute authorize administrative elaboration of those provisions that cannot readily be applied literally?

The plaintiff’s principal argument is that its tax liability is governed by the express language of § 12-587 (1) which, it maintains, plainly and unambiguously precludes the inclusion in gross income of the 2 percent tax imposed upon it but collected from its customers. The plaintiff reads the definition of “gross earnings” in § 12-587 (1) as containing two component parts, neither of which renders this 2 percent charge taxable. Specifically, the plaintiff argues, moneys collected from consumers for taxes are plainly neither “earnings from the sale of petroleum products” nor do they fall within the “net income” to which the § 12-218 sales factor applies. We disagree.

The first half of the plaintiff’s statutory argument, on which it relies in passing, cannot withstand independent analysis. What the legislature intended by defining “gross earnings” as “earnings from the sale of petroleum products” can hardly be deemed to be plain and unambiguous on its face. The heart of the disagreement between the parties is how to define the relevant “earnings.”

The weightier part of the plaintiffs statutory argument is its insistence that we must read literally and apply strictly the statutory instruction that “gross earnings” are “those earnings . . . to which the sales factor is applied” under § 12-218 (b). (Emphasis added.) Because the sales factor is applied, by that statute, to net income, the plaintiff maintains that “gross earnings” under § 12-587 are limited to net income. Pursuing that syllogism, the plaintiff argues that its “gross earnings” do not include tax payments that are normally deductible in the calculation of net income. The difficulty with this argument is that it proves too much. If “gross earnings” are indeed to be measured by “net income,” expenses other than taxes would also be deductible from gross receipts in order to determine the basis upon which the § 12-587 tax is to be levied. To its credit, not even the plaintiff has pursued the logic of its position to this extreme. Nonetheless, the logical consequence of the plaintiff’s position demonstrates that the legislature could not have intended the irrational result that would follow from an equation of “gross earnings” with net income. We must reject an interpretation of § 12-587 that would have the statute operate in a way that is “difficult and possibly bizarre.” State v. Blasko, supra, 558-59; Maciejewski v. West Hartford, 194 Conn. 139, 152, 480 A.2d 519 (1984).

It is possible to ascribe meaningful content to the cross-reference in § 12-587 to the sales factor in § 12-218 (b) if we read that cross-reference to incorporate only the sales factor itself and not its net income attributes. Such a construction is plausible because § 12-218 is not a taxing statute but is, instead, an allocation statute. All that § 12-218 purports to do is to assign to Connecticut that portion of a multistate corporation’s income that may thereafter, under § 12-214, be taxed in Connecticut pursuant to the corporation business tax. Schlumberger Technology Corporation v. Dubno, supra. Presumably, the legislature included a reference to § 12-218 (b) in the “gross earnings” definition of § 12-587 in order to reflect its understanding of the prevailing multistate system for the refining and distribution of petroleum products. See Mobil Oil Corporation v. Dubno, 492 F. Sup. 1004, 1006 (D. Conn. 1980), aff’d in part and dismissed in part, 639 F.2d 919 (2d Cir.), cert. denied, 452 U.S. 967, 101 S. Ct. 3122, 69 L. Ed. 2d 980 (1981). What is most significant in § 12-218 (b), therefore, for purposes of the petroleum gross earnings tax, is its description of the components of the sales factor, i.e., “gross receipts,” and not that this factor is applied, for apportionment purposes, to net income. Informed by § 12-218, therefore, the statutory definition of “gross earnings” in § 12-587 instructs us to look to the usual meaning of “gross receipts.” Such a definition, because it is not plain and unambiguous, requires recourse to more than linguistic analysis.

In order to shed further light on the scope of “gross earnings” in § 12-587, we turn next to an examination of the purpose that the gross earnings tax on petroleum products was intended to serve. The legislature expressly described that purpose in General Statutes § 12-599 (a), which states: “It is not the intention of the general assembly that the tax imposed under section 12-587 be construed as a tax upon purchasers of petroleum products, but that such tax shall be levied upon and be collectible from petroleum companies as defined in section 12-587, and that such tax shall constitute a part of the operating overhead of such companies.” Subsection (b) of § 12-599 enjoined petroleum companies subject to the tax from raising their wholesale prices in Connecticut by any amount higher than the average amount of wholesale price increases “in all ports on the eastern coast of the United States.” Upon a challenge to the constitutionality of the antipassthrough provision of § 12-599 (b), that subsection was held invalid because it conflicted with the federal Emergency Petroleum Allocation Act of 1973 and with federal mandatory petroleum price regulations. Mobil Oil Corporation v. Dubno, supra, 1011-14. The plaintiff maintains that this history demonstrates that the legislature, intent upon avoiding a pass through of the tax, did not contemplate a tax levy that included in its base the amount of the tax that, after the federal decision, became payable by petroleum customers. The defendant argues, to the contrary, that the unenforceability of § 12-599 (b), for constitutional reasons, does not disturb the legislative intent, manifested in § 12-599 (a), that the petroleum products tax be treated as an item of operating overhead measured, under § 12-587, by gross earnings derived from the sales of petroleum products in Connecticut. We agree with the defendant.

In enacting the gross earnings tax on petroleum products, the legislature was entitled to pursue more than one statutory objective. In addition to its intent to limit price increases to Connecticut customers of petroleum products, the legislature was free to impose a gross earnings tax as part of the operating overhead costs of Connecticut producers and distributors of petroleum products. Neither in this case nor in the federal litigation concerning § 12-599 (b) has a constitutional challenge been raised to this latter aspect of what the legislature chose to do. Mobil Oil Corporation v. Dubno, supra, 1006. Perhaps in anticipation of the constitutional vulnerability of its anti-passthrough provision, the legislature expressly provided for the sever-ability of any part of the petroleum products tax that might be held invalid or unconstitutional, so that the remaining “sections, parts, clauses and phrases” in §§ 12-587 to 12-602, inclusive, “shall remain in full force and effect.” General Statutes § 12-601. Although the legislature’s first preference, to have the petroleum distributors bear the entire cost of the gross earnings tax, cannot be implemented constitutionally, we are obligated to enforce its secondary preference that the petroleum products tax be treated as an item of operating overhead measured by gross earnings derived from the sale of petroleum products in Connecticut.

In order to give effect to the legislative purpose stated in § 12-599 (a), we must construe “gross earnings” in § 12-587 in such a way that the tax “constitute[s] a part of the operating overhead” of companies that produce and distribute petroleum products. In furtherance of our task we may usefully consider existing legislation in related areas of the law; Dart & Bogue Co. v. Slosberg, supra; State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); and the judicial construction that such legislation has previously received. C. White & Son, Inc. v. Rocky Hill, 181 Conn. 114, 123, 434 A.2d 949 (1980). In a number of cases interpreting “gross earnings” under the utilities companies tax; General Statutes § 12-264; we have held that “gross earnings” include a taxpayer’s “entire earnings and receipts.” Bridgeport Hydraulic Co. v. Sullivan, 152 Conn. 671, 673, 211 A.2d 697 (1965); Hartford Electric Light Co. v. McLaughlin, 131 Conn. 1, 6, 37 A.2d 361 (1944); State v. United Electric Light & Water Co., 90 Conn. 452, 460, 97 A. 857 (1916). That construction furnishes a particularly appropriate analogy in this case because of the cross-reference in § 12-587 to the sales factor in § 12-218, which, as previously noted, describes the relevant inquiry as one concerned with “gross receipts.” In the absence of a specific statutory exemption for tax receipts, we conclude, on the basis of these precedents, that § 12-587 includes within “gross earnings” the amounts that the plaintiff has collected as taxes passed through to its customers. This result is not altered by the fact that, for its own accounting purposes, the plaintiff billed its customers separately for the sales price of its petroleum products and for the taxes it collected from them.

Finally, the result we reach finds support in an administrative regulation issued by the defendant. The legislature gave the defendant express authority, in General Statutes § 12-602, to adopt regulations to implement the provisions of the act imposing a gross earnings tax on petroleum products. Regulations properly promulgated under § 12-602 “shall be prima facie evidence of the proper interpretation” of the act. The relevant regulation, enacted in 1983 as § 12-602-la (c) of the Regulations of Connecticut State Agencies, states: “ ‘Gross earnings' mean and include gross receipts from the initial sale of petroleum products, but do not include the amount of state or federal excise taxes on gasoline or special fuel.” By its express exclusion of some taxes, but not the ones here in question, from the definition of “gross earnings” in § 12-587, the defendant has provided “prima facie evidence” that the statute is to be interpreted to include within the plaintiff's tax basis the tax payments that it has collected from its customers. The regulation’s equation of “gross eamings” with “gross receipts” is consistent with our own analysis of the various statutes that illuminate what the legislature intended to encompass in the statutory definitions contained in § 12-587.

Ordinarily “the construction of a statute on an issue that has not previously been subjected to judicial scrutiny is a question of law on which an administrative ruling is not entitled to special deference.” Schlumberger Technology Corporation v. Dubno, supra, 423. If, however, a governmental agency’s “time-tested” interpretation of a statute is reasonable, that interpretation should be acccorded great weight by the courts. Anderson v. Ludgin, 175 Conn. 545, 555-56, 400 A.2d 712 (1978); New Haven v. United Illuminating Co., 168 Conn. 478, 493, 362 A.2d 785 (1975). The plaintiff argues, however, that the regulation impermissibly enlarges the statutory definitions contained in § 12-587, and that, so interpreted, the regulation exceeds the power of an administrative agency to prescribe rules and regulations. We conclude, however, that the regulation is entirely reasonable and consistent with the statutory mandate of § 12-587. Furthermore, we note that the principal case on which the plaintiff relies; Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 144, 509 A.2d 1050 (1986); lends additional credibility to the position of the defendant in this case. In the absence of any submission to the contrary, we may assume that Regulation 12-602-la (c) was promulgated, as § 12-602 requires, in accordance with the procedures prescribed by chapter 54 of the General Statutes, the Uniform Administrative Procedure Act. General Statutes §§ 4-166 through 4-189. Those procedures include the submission of proposed regulations to the legislative regulation review committee for its approval. General Statutes § 4-170. As we held in Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, supra, legislative ratification of a proposed regulation supports the position that the regulation is consistent with the general statutory-scheme that the regulation was designed to implement.

The question that was reserved to this court stated the issue as follows: “Was the two percent charge, which was noted on Getty invoices as a charge for the Connecticut Gross Earnings Tax, includable in Getty’s gross earnings derived from the sale of petroleum products and subject to a two percent tax under Section 12-587?” For the reasons stated above, our answer to the reserved question is “Yes.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       The Connecticut gross earnings tax on the sale of petroleum products is codified in General Statutes §§ 12-587 through 12-602.

       After the filing of the appeal in the Superior Court, Texaco, Inc., acquired Getty Refining and Marketing Company, Inc. The name of the plaintiff company was thereafter changed to Texaco Refining and Marketing Company, Inc.

       “[General Statutes (Rev. to 1985)] Sec. 12-587. quarterly tax ON GROSS earnings from sale of petroleum products. Any company, including for purposes of this section and section 12-587a, any corporation, partnership, limited partnership, association or individual, which is engaged in the refining or distribution, or both, of petroleum products and distributes such products in this state shall pay a quarterly tax at the rate of two per cent of gross earnings in each taxable quarter derived by such company from the sale of petroleum products in this state, provided such tax shall only be applicable to that sale of any such product which is the first sale of such product in the state. No deduction shall be made from such gross earnings for any commission, rebate or other payment, except a refund resulting from an error or overcharge. Each such company shall, on or before the last day of January, April, July and October of each year, render to the commissioner of revenue services under oath of its treasurer or the person performing the duties of treasurer or of an authorized agent or officer, a return on forms prescribed or furnished by said commissioner, including in respect to such company the amount of gross earnings from the sale of petroleum products within this state for the quarter ending with the last day of the preceding month. The tax imposed under sections 12-587 to 12-602, inclusive, shall be in addition to any other tax imposed by Connecticut with respect to which such company is liable. For purposes of sections 12-587 to 12-602, inclusive, ‘petroleum products’ includes any product which contains or is made from petroleum or a petroleum derivative; ‘gross earnings’ are (1) in the case of a corporation, those earnings from the sale of petroleum products to which the sales factor is applied under subdivision (3) [now (b)] of section 12-218 and (2) in the case of any other company, those earnings from such sales made within this state.”
      The definition of “gross earnings” in § 12-587 was amended in 1985. See Public Acts 1985, No. 85-381. This amendment was not in effect during any of the tax years in question, however. Accordingly, we restrict our analysis to the version of § 12-587 in effect prior to the 1985 amendment.

       The question of law that has been reserved for our advice is: “Was the two percent charge, which was noted on Getty invoices as a charge for the Connecticut Gross Earnings Tax, includable in Getty’s gross earnings derived from the sale of petroleum products and subject to a two percent tax under Section 12-587?”

       Under General Statutes § 12-587, this tax was imposed upon the plaintiff, but after the decision in Mobil Oil Corporation v. Dubno, 492 F. Sup. 1004 (D. Conn. 1980), aff’d in part and dismissed in part, 639 F.2d 919 (2d Cir.), cert. denied, 452 U.S. 967, 101 S. Ct. 3122, 69 L. Ed. 2d 980 (1981), the plaintiff was able to pass through the tax to its purchasers.

       The disagreement between the parties can best be illustrated by a hypothetical example. Assume that the plaintiff sold petroleum products to a customer for a sales price of $1000—and a 2 percent tax of $20. According to the plaintiff, its taxable gross earnings on this transaction are $1000. According to the defendant, the plaintiffs taxable gross earnings are $1020.

       “[General Statutes] Sec. 12-595. Application for hearing by taxpayer. hearings ordered by commissioner. Any taxpayer aggrieved by the action of the commissioner of revenue services or an authorized agent of said commissioner in fixing the amount of tax imposed under section 12-587 or any penalty or interest related thereto may apply to said commissioner in writing, within thirty days after notice of such action is delivered or mailed to such taxpayer, for a hearing and a correction of the amount of such tax, penalty or interest should be reduced. Said commissioner shall promptly consider each such application and may grant or deny the hearing requested. If the hearing is denied, the applicant shall be notified thereof forthwith. If it is granted said commissioner shall notify the applicant of the time and place fixed for such hearing. After such hearing said commissioner may make such order in the premises as appears to him just and lawful and shall furnish a copy of such order to the applicant. Said commissioner may, by notice in writing, at any time within three years after the date when any return of any taxpayer has been due, order a hearing on his own initiative and require the taxpayer or any other individual whom he believes to be in possession of relevant information concerning the taxpayer to appear before him or his authorized agent with any specified books of account, papers or other documents, for examination under oath.”

       “[General Statutes] Sec. 12-600. taxes to be paid before instituting action ON TAX in court. Any taxes, penalties or interest due from any company under the provisions of sections 12-587 to 12-602, inclusive, shall be paid in full before any action may be instituted in any state court to challenge all or any part of the provisions of said sections. No injunction or restraining order shall be issued by any state court to stay or prevent the imposition or collection of taxes as provided under said sections.”

       “[General Statutes] Sec. 12-597. appeals by taxpayer. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services made in relation to the tax imposed under section 12-587 may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to said commissioner to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and retumed in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state of Connecticut with surety to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises. Such appeals shall be preferred cases, to be heard, unless cause appears to the contrary, at the first session, by the court or by a committee appointed by it. If the appeal has been taken without probable cause, the court may tax double or triple costs, as the case demands and upon all such appeals which may be denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       “[General Statutes] Sec. 52-235. reservation of questions of law. (a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
      “(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the supreme court or the appellate court.”

       Practice Book § 4147 (formerly § 3133) provides: “A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered. Reservations in cases where the proper court for the appeal cannot be determined prior to judgment shall also be taken directly to the supreme court.
      “All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.
      “The advice of the appellate court on a reservation may be reviewed by the supreme court only upon the granting of certification as provided by chapter 72.”

       “[General Statutes] Sec. 4-186. exemption of unemployment compensation and employment security appeals. Appeals from the decisions of the administrator of the unemployment compensation act, appeals from decisions of the employment security appeals referees to the board of review, and appeals from decisions of the employment security board of review to the courts, as is provided in chapter 567, and hppeals from the commissioner of revenue services to the courts, as provided in chapters 207 to 212a, inclusive, 214, 215, 219, 221, 222, 224 and 225 are excepted from the provisions of this chapter.”

       “[Practice Book] Sec. 257. trial list for administrative appeals; briefs; PLACING cases thereon. . . . (d) The following administrative appeals shall, subsequent to the filing of the appeal, follow the same course of pleading as that followed in ordinary civil actions . . . (3) Appeals from the commissioner of revenue services.”

       General Statutes § 12-218 provides: “apportionment of net income. Any taxpayer which is taxable both within and without this state shall apportion its net income as provided in this section. For purposes of apportionment of income under this section, a taxpayer is taxable in another state if in such state such taxpayer conducts business and is subject to a net income tax, a franchise tax for the privilege of doing business, or a corporate stock tax, or if such state has jurisdiction to subject such taxpayer to such a tax, regardless of whether such state does, in fact, impose such a tax. The net income of the taxpayer shall be apportioned as follows: (a) Such income, when derived from business other than the manufacture, sale or use of tangible personal or real property, shall be apportioned within and without the state by means of an apportionment fraction, the numerator of which shall represent the gross receipts from business carried on within Connecticut and the denominator shall represent the gross receipts from business carried on everywhere, except that any gross receipts attributable to an international banking facility, as defined in section 12-217, shall not be included in the numerator or the denominator; (b) when derived from the manufacture, sale or use of tangible personal or real property, the portion thereof attributable to business within the state shall be determined by means of an apportionment fraction to be computed as the sum of the property factor, the payroll factor and twice the receipts factor, divided by four. The first of these fractions, the property factor, shall represent that part of the average monthly net book value of the total tangible property held and owned by the taxpayer during the income year which is held within the state, without deduction on account of any encumbrance thereon, and the value of tangible property rented to the taxpayer computed by multiplying the gross rents payable during the income year or period by eight. For the purpose of this section, gross rents shall be the actual sum of money or other consideration payable, directly or indirectly, by the taxpayer or for its benefit for the use or possession of the property, excluding royalties, but including interest, taxes, insurance, repairs or any other amount required to be paid by the terms of a lease or other arrangement and a proportionate part of the cost of any improvement to the real property made by or on behalf of the taxpayer which reverts to the owner or lessor upon termination of a lease or other arrangement, based on the unexpired term of the lease commencing with the date the improvement is completed, provided, where a building is erected on leased land by or on behalf of the taxpayer, the value of the land is determined by multiplying the gross rent by eight, and the value of the building is determined in the same manner as if owned by the taxpayer. The second fraction, the payroll factor, shall represent the part of the total wages, salaries and other compensation to employees paid by the taxpayer during the income year which was paid in this state, excluding any such wages, salaries or other compensation attributable to the production of gross income of an international banking facility as defined in section 12-217. Compensation is paid in this state if (i) the individual’s service is performed entirely within the state; or (ii) the individual’s service is performed both within and without the state, but the service performed without the state is incidental to the individual’s service within the state; or (iii) some of the service is performed in the state and (1) the base of operations or, if there is no base of operations, the place from which the service is directed or controlled is in the state, or (2) the base of operations or the place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in this state. The third fraction, the receipts factor, shall represent the part of the taxpayer’s gross receipts from sales or other sources during the income year, computed according to the method of accounting used in the computation of its entire net income, which is assignable to the state, and excluding any gross receipts attributable to an international banking facility as defined in section 12-217, but including receipts from sales of tangible property if the property is delivered or shipped to a purchaser within this state, other than a company which qualifies as a Domestic International Sales Corporation (DISC) as defined in Section 992 of the Internal Revenue Code of 1954, as amended, and as to which a valid election under Subsection (b) of said Section 992 to be treated as a DISC is effective, regardless of the f.o.b. point or other conditions of the sale, receipts from services performed within the state, rentals and royalties from properties situated within the state, royalties from the use of patents or copyrights within the state, interest managed or controlled within the state, net gains from the sale or other disposition of intangible assets managed or controlled within the state, net gains from the sale or other disposition of tangible assets situated within the state and all other receipts earned within the state; and (c) any motor bus company carrying on business partly without the state shall apportion to this state its net income derived from carrying of passengers for hire by means of an apportionment fraction, the numerator of which shall represent the total number of miles operated within this state and the denominator of which shall represent the total number of miles operated everywhere, but income derived by motor bus companies from sources other than the carrying of passengers for hire shall be apportioned as herein otherwise provided. The provisions of this section shall not apply to insurance companies.”

       Under General Statutes § 12-213, “net income” is computed by subtracting from gross income “the deductions allowed by the terms of section 12-217.” Allowable deductions under General Statutes § 12-217 include most of the items deductible under the federal corporate income tax in force during the relevant income year.

       We note that the plaintiffs construction of subsection (1) of General Statutes § 12-587 would leave untouched the general reference to “earnings” of companies taxed pursuant to subsection (2). It is not likely that the legislature would have defined gross earnings as the equivalent of net income for only one part of § 12-587.

         “[General Statutes] Sec. 12-599. tax to constitute operating overhead of taxpayer, limitation on price increases in this state. . . . (b) No petroleum company subject to the tax imposed under section 12-587 shall raise its posted wholesale rack price in Connecticut for any petroleum product exempt from the Federal Emergency Petroleum Allocation Act (P.L. 93-159) by an amount higher than the average amount by which such company raises its wholesale rack price for such product in all ports on the eastern coast of the United States.”

       “[General Statutes] Sec. 12-601. severability. If any section, part, clause or phrase in sections 12-587 to 12-602, inclusive, is for any reason held to be invalid or unconstitutional, sections, parts, clauses and phrases in said sections not held to be invalid or unconstitutional shall not be affected and shall remain in full force and effect.”

       General Statutes § 12-264 provides in relevant part: “tax on gross earnings, return. Every Connecticut municipality or department or agency thereof, or Connecticut district, manufacturing, selling or distributing gas or electricity to be used for light, heat or power, in this chapter and in chapter 212a called a ‘municipal utility,’ and each company, including each foreign municipal electric utility as defined in section 12-59 and given authority to engage in business in this state pursuant to the provisions of section 16-246c, the principal business of which is manufacturing, selling or distributing gas or electricity or steam to be used for light, heat or power and each company operating a system of water works for selling and distributing water for domestic or power purposes, provided such company is a water company as that term is defined in section 16-1, shall pay a quarterly tax upon gross earnings from such operations in this state. Gross earnings from such operations shall include all income classified as operating revenues by the department of public utility control in the uniform systems of accounts prescribed by said department for operations within the taxable quarter and, with respect to each such company, all income classified in said uniform systems of accounts as income from merchandising, jobbing and contract work, income from nonutility operations and revenues from lease of physical property not devoted to utility operation, and receipts from the sale of residuals and other by-products obtained in connection with the production of gas, electricity or steam. No deductions shall be allowed from such gross earnings for any commission, rebate or other payment, except a refund resulting from an error or overcharge, and those specifically mentioned in section 12-265.”

       “[General Statutes] Sec. 12-602. regulations. The commissioner of revenue services shall adopt regulations in accordance with chapter 54 to implement the provisions of sections 12-587 to 12-602, inclusive, which shall be prima facie evidence of the proper interpretation of said sections. Said commissioner shall prescribe and furnish the form of return required under section 12-587 and require that each such return shall set forth any and all information necessary or desirable in order to determine the amount of tax payable under said section 12-587.”

       General Statutes § 4-170 provides in relevant part: “legislative regulation REVIEW COMMITTEE. PILING REQUIREMENTS FOR REGULATIONS. FISCAL notes required, (a) There shall be a standing legislative committee to review all regulations of the several state departments and agencies following the proposal thereof, which shall consist of eight members of the house of representatives, four from each major party, to be appointed on the first Wednesday after the first Monday in January in the odd-numbered years, by the speaker of said house, and six members of the senate, three from each major party, to be appointed on or before said dates by the president pro tempore of the senate. Said members shall serve for the balance of the term for which they were elected. Vacancies shall be filled by appointment by the authority making the appointment. The members of said committee shall elect from among their members two cochairmen, one of whom shall be a member of the senate and one of whom shall be a member of the house of representatives, and either of whom may call meetings of the committee for the performance of its duties. . . .
      “(c) The committee shall review all proposed regulations and, in its discretion, may hold public hearings thereon, and may approve, disapprove or reject without prejudice, in whole or in part, any such regulation. In the event the committee fails to so approve, disapprove or reject without prejudice a proposed regulation, within sixty-five days after the date of submission as provided in subsection (b), the committee shall be deemed to have approved the proposed regulation for purposes of this section.”


source: Caselaw Access Project

author: Shea, J.

license: Public Domain

text:
    Commission on Human Rights and Opportunities v. Archdiocesan School Office et al.
    (12719)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued January 6
    decision released March 24, 1987

      Robert B. Teitelman, assistant attorney general, with whom were Robert E. Walsh, assistant attorney general, and, on the brief, Joseph I. Lieberman, attorney general, and Arnold B. Feigin and Josephine Lauriello, assistant attorneys general, for the appellant (plaintiff).

      Vincent J. Dowling, with whom, on the brief, were Louis B. Blumenfeld and Ellen M. Bums, for the appellees (defendants).
   Shea, J.

The trial court granted a motion to dismiss a petition of the commission on human rights and opportunities (CHRO) that had been brought pursuant to General Statutes § 46a-88 to require the defendants to answer certain interrogatories relating to its investigation of a complaint of employment discrimination in violation of General Statutes § 46a-60 (a) (l). The relator, Susan J. Hunter, had filed a complaint with the CHRO pursuant to General Statutes § 46a-82 in which she claimed that she had been denied employment as a teacher at a Catholic parochial school because her religious affiliation was not with the Roman Catholic Church. The court construed the statutory authority of the CHRO, as set forth in the Human Rights and Opportunities Act (HROA), General Statutes §§ 46a-51 through 46a-96, not to extend to religious organizations as employers and therefore concluded that the commission lacked jurisdiction to require the defendants to respond to the interrogatories it had propounded. We find error and remand the case for further proceedings.

In her sworn complaint, Hunter declared that in June, 1979, she had applied for a position as a first grade teacher at the St. Martin de Porres School in New Haven, that both the pastor of the church and the principal of the school had recommended her for the position after interviewing her, that she was told that a final interview with the individual defendant, the Reverend James G. Fanelli, superintendent of schools for the archdiocese of Hartford was necessary, that Fanelli told her in August, 1979, that he would not interview her because he wanted only Catholic teachers, and that, her religious affiliation being Methodist, she had been denied an employment opportunity because of her religion. On September 25,1979, a copy of this complaint alleging a violation of General Statutes § 46a-60 was served on the defendant designated as “Archdiocesan School Office.” A set of sixteen interrogatories was served on each defendant on June 19,1981, which were not answered. Claiming that the information sought was needed to investigate the complaint, the CHRO on July 16, 1981, petitioned the Superior Court pursuant to § 46a-88 to order the defendants to respond.

The defendants initially filed a motion to dismiss on nonconstitutional grounds, which the trial court, Vasington, J., denied, a ruling we need not consider in this appeal. On October 22, 1982, another motion to dismiss the petition was filed by the named defendant claiming the CHRO lacked jurisdiction over it because the application of the HROA to church related schools constituted excessive governmental entanglement in the administration of church affairs in violation of the first amendment to our federal constitution.

In granting this motion on March 7, 1985, the trial court, Aspell, J., concluded that, because the application of General Statutes § 46a-60, which prohibits religious discrimination in employment generally, to the defendants would raise serious constitutional questions, the statute should be construed to exempt religious organizations from its coverage. The court relied upon NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S. Ct. 1313, 59 L. Ed. 2d 533 (1979), in which the United States Supreme Court, despite a broad definition of employer containing no exemption for church related schools, construed the National Labor Relations Act to provide such an exemption because of the absence of a clear expression of an affirmative intention that teachers in church operated schools should be covered by the act. Finding no such expression of “affirmative intention” to include religious organizations within the ambit of “employer” in § 46a-60, the trial court, declining to resolve the “sensitive” first amendment issues that had been raised, held that the legislature had never intended that such organizations be subject to the jurisdiction of the CHRO.

We conclude that the named defendant’s motion to dismiss should have been denied because it sought to raise prematurely issues that are not yet ripe for adjudication. Despite the considerable time that has elapsed since the relator filed her complaint on September 6, 1979, this proceeding has not advanced beyond the investigatory stage that must be completed before it can be determined whether “there is reasonable cause for believing that a discriminatory practice has been or is being committed as alleged in the complaint . . . .” General Statutes § 46a-83 (a). The issuance of interrogatories by the CHRO to obtain information relating to any complaint under investigation necessary or useful in making that determination is expressly authorized by General Statutes § 46a-54 (10). “Upon failure of any person to answer interrogatories issued pursuant to subsection (10) of section 46a-54, the commission may file a petition . . . with the superior court . . . requesting the court to order that an answer be filed.” General Statutes § 46a-88 (a).

The CHRO followed this statutory procedure when the defendants failed to respond to the interrogatories served upon them. In a closely analogous situation involving the investigatory powers of the attorney general under a statute authorizing the issuance of subpoenas for that purpose, this court has held that it is improper to make a determination of the substantive applicability of the statute to a particular case before completion of an investigation expressly authorized to be conducted prior to the institution of a proceeding against a person who may have violated the underlying statute. In re Application of Ajello v. Moffie, 179 Conn. 324, 325-26, 426 A.2d 295 (1979). “An administrative body so empowered may, by virtue of such authority, develop, without interference or delay, a factual basis for the determination of whether particular activities come within its regulatory authority.” Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 514-15, 461 A.2d 938 (1983). A petition filed pursuant to § 46a-88 does not present the issue of whether the defendants may be exempt from the coverage of the statute they may have violated, but only whether information relevant to the possible violation can be drawn forth. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 211, 66 S. Ct. 494, 90 L. Ed. 614 (1946). So long as the interrogatories to be enforced are not plainly irrelevant to any lawful purpose of the CHRO, unduly burdensome, or violative of some privilege or other right of the person to whom they are addressed, the statute requires that they be answered, however doubtful the basis for a violation may appear at this preliminary investigative stage. See Endicott Johnson Corporation v. Perkins, 317 U.S. 501, 509, 63 S. Ct. 339, 87 L. Ed. 424 (1943); 1 K. Davis, Administrative Law § 4:6.

We have recognized an exception to the general bar against testing the coverage of a statute in a preliminary investigative proceeding where the legislative authority to empower the agency to conduct the investigation itself is challenged. Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 515; see Oklahoma Press Publishing Co. v. Walling, supra, 209. The trial court, Aspell, J., expressed some concern that the investigative powers of the CHRO, including its statutorily authorized issuance of interrogatories, posed a risk of infringing upon the first amendment rights of the defendants. The defendants also argue that, even though the issues may ultimately be decided in their favor, any exercise of CHRO jurisdiction might interfere with religious beliefs and practices and thus have a chilling effect on the church’s hiring practices.

Similar considerations were advanced and found unpersuasive in the case of Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619, 106 S. Ct. 2718, 91 L. Ed. 2d 512 (1986), in which the United States Supreme Court held that the federal courts should abstain from exercising jurisdiction to enjoin a state civil rights proceeding against a church related school based upon complaints of sex discrimination and infringement of constitutional rights sought to be justified pursuant to religious beliefs. The court concluded that the abstention doctrine, based upon principles of comity and federalism; see Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971); applied to state administrative proceedings involving important state interests, such as the elimination of sex discrimination, so long as in the course of those proceedings there would be an adequate opportunity to raise any constitutional issues. “Even religious schools cannot claim to be wholly free from some state regulation.” Ohio Civil Rights Commission v. Dayton Christian Schools, supra, 628. “[T]he Commission violates no constitutional rights by merely investigating the circumstances of [the complainant’s] discharge in this case, if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge.” Id. We hold similarly that the CHRO investigation may not be forestalled at this point in the proceeding simply because first amendment issues may later be raised if the outcome of the investigatory process is adverse to the defendants.

In this § 46a-88 proceeding it is possible that the defendants may have a cognizable religious reason as well as other grounds for objecting to some of the interrogatories that have been propounded. No such grounds for refusal to answer have yet been presented, nor are they so readily apparent from an examination of the questions that we should now attempt to resolve their propriety. The only issue before us at this time is whether the trial court should have dismissed the petition and we conclude that it erred in doing so.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to deny the motion to dismiss and for further proceedings.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 46a-88. enforcement of interrogatories. (a) Upon failure of any person to answer interrogatories issued pursuant to subsection (10) of section 46a-54, the commission may file a petition with the interrogatories attached with the superior court of the judicial district in which the violation is alleged to have occurred or where such person resides or transacts business, requesting the court to order that an answer be filed. . . .”

       “[General Statutes] Sec. 46a-60. (Formerly Sec. 31-126). discriminatory employment practices prohibited, (a) It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation or physical disability, including, but not limited to, blindness . . . .”

       “[General Statutes] Sec. 46a-82. (Formerly Sec. 31-127). complaint: filing, (a) Any person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of section 46a-68, may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission.
      “(b) The commission, whenever it has reason to believe that any person has been engaged or is engaged in a discriminatory practice, may issue a complaint except for a violation of subsection (a) of section 46a-80.”

       The defendants filed the first motion to dismiss the petition on two grounds: (1) that neither of the defendants had been a prospective employer of Susan J. Hunter, the complainant; and (2) that the CHRO was exceeding its statutory authority by invoking an equitable remedy to enforce interrogatories. Attached to this motion was an affidavit of the Reverend James G. Fanelli declaring that he was the superintendent of schools for the Archdiocese of Hartford and was in charge of the Diocesan School Office, a division of the Hartford Roman Catholic Diocesan Corporation; that, to the best of his knowledge, there existed no such entity as the Archdiocesan School Office; and that in his capacity as such superintendent he does not contract with or pay the elementary school teachers who are employed at St. Martin De Porres School in New Haven. After this affidavit had been filed, the petition was amended to designate the Diocesan School Office of the Hartford Roman Catholic Diocesan Corporation as the defendant entity and to refer to Fanelli as the superintendent thereof. A specific prayer for relief in the form of an order to answer the interrogatories, absent from the original petition was also added.
      In denying this motion the trial court, Vasington, J., rejected the first ground of the motion to dismiss because § 46a-88 authorizes a petition for an order to respond to interrogatories “[ujpon the failure of any person to answer,” not just prospective employers. The court construed the second ground of the motion to implicate only a procedural issue arising from the commencement of the action by means of an order to show cause, which had been obviated by the amendment of the petition.

       “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., amend. I.

       Although the motion to dismiss was filed only on behalf of the named defendant, the memorandum of decision as well as the judgment file appears to have granted the motion in respect to both defendants. The parties on appeal have made no point of this irregularity and, in view of the result we reach, it is of no significance.


text:
    Commission on Human Rights and Opportunities v. Greenwich Catholic Elementary School System, Inc.
    (12625)
    (12951)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued January 6
    decision released March 24, 1987

      Deborah R. Green, staff attorney, with whom was Philip A. Murphy, Jr., commission counsel, for the appellant (plaintiff).

      Michael T. Dolan, for the appellee (defendant).
   Shea, J.

The principal issue in this appeal is whether a proceeding before the commission on human rights and opportunities (CHRO) based on an individual’s complaint of age discrimination in violation of General Statutes § 46a-60 (a) (l) must terminate upon the death of the complainant. We hold that it may be continued so long as the estate of the complainant seeks to pursue a claim for monetary relief to which the complainant may have been entitled.

On October 7,1982, Ruth Marciano filed a complaint with the CHRO pursuant to General Statutes § 46a-82 (a) alleging that, after twenty-four years as a teacher, she had been discriminated against because of her age. The defendant had refused to renew her employment contract on the basis of declining school enrollment while younger teachers with less experience, fewer qualifications, and briefer terms of service were retained. While this complaint was pending Ruth Marciano died, and John Marciano was approved as executor of her will. He filed an amended complaint with the CHRO on March 9, 1983, on behalf of the estate, attempting to secure any remedy to which the deceased complainant would have been entitled.

The CHRO on April 17, 1984, filed a petition under General Statutes § 46a-88 (a) seeking an order of the Superior Court that the defendant answer certain interrogatories previously mailed to it. The defendant filed a motion to dismiss the petition on two grounds: (1) that the death of the original complainant, Ruth Marciano, deprives the CHRO of its jurisdiction; and (2) that the application of the human rights and opportunities statutes to the defendant as a church organization conflicts with the establishment clause of the first amendment to our federal constitution. The trial court on October 4, 1984, granted this motion on the first ground only, a result that made it unnecessary to address the constitutional issues raised by the second ground. On October 24,1984, the plaintiff appealed from the dismissal of its petition.

On December 4, 1984, while this appeal was pending, the complaint before the agency was amended a second time by naming the CHRO as an additional complainant for the purpose of investigating the complaint and securing for the estate of the original complainant any remedy to which her estate might be entitled. A motion to open the judgment which had been appealed was filed on December 5, 1984, together with a stipulation of the parties for a reservation to this court of the following question: “Can the Commission retain jurisdiction over an administrative complaint, after the complainant has died and when the complaint seeks money damages, by amending the complaint to name the Commission as complainant and to seek the monetary remedy on behalf of the estate of the deceased complainant?” The trial court approved the reservation, but the record does not indicate that the motion to open the judgment on appeal has been acted upon.

I

In our recent decision in Commission on Human Rights & Opportunities v. Archdiocesan School Office, 202 Conn. 601, 607-608, 522 A.2d 781 (1987), we held that, in a proceeding to obtain responses to interrogatories pursuant to General Statutes § 46a-88, a motion to dismiss could not be used to test the statutory or constitutional authority of the CHRO over the party against whom the proceeding is directed. See In re Application of Ajello v. Moffie, 179 Conn. 324, 325-26, 426 A.2d 295 (1979). The ground upon which the trial court relied in dismissing the petition in this case, however, does not implicate the issue of whether § 46a-60 should be construed to exclude the defendant from its prohibition of discriminatory employment practices. The court’s conclusion that the death of the victim of the alleged discrimination terminated the jurisdiction of the CHRO over the proceeding raises only the question of whether there is any viable proceeding before the CHRO to which the interrogatories sought to be enforced would relate. We note that in Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975), where a complainant had died during,the pendency of the hearing before the CHRO on his complaint, this court approved the use under similar circumstances of a motion to dismiss for the purpose of raising “the question of lack of jurisdiction.”

In Groton it was held that the death of the complainant while the administrative proceeding was pending before the agency terminated the authority of the CHRO to proceed further on his complaint. “Upon the death of an individual complainant the tribunal is rendered powerless to issue an award in conformity with the decedent’s personal complaint.” Id., 100-101. The trial court relied upon Groton in dismissing the petition for enforcement of interrogatories. In Groton, however, no representative of the complainant’s estate had attempted to continue the case, and no claim for relief that might have accrued to the estate had been made in the complaint. Id., 103-104 (Cotter, J., concurring). Accordingly, General Statutes § 52-599, which provides generally that “[a] civil action or proceeding shall not abate by reason of the death of any party thereto,” was unavailable to allow the proceeding to survive, because the statute does not apply “to any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto.”

In Groton, the complainant had sought only to become a member of an unpaid volunteer fire company, alleging no monetary loss from the denial of his application for membership. The complainant in the case before us, however, claimed that, as a result of the termination of her employment, she had suffered a reduction of pension and Social Security benefits and had incurred expenses for medical insurance that previously had been borne by the defendant as her employer. Her executor has entered the administrative proceeding by filing an amended complaint seeking any remedy to which the deceased complainant may have been entitled. We conclude, therefore, that Groton is plainly distinguishable and does not resolve the issue of the survivability of the proceeding following the death of the complainant in the case before us.

“A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.” General Statutes § 52-599 (a). The only exceptions to the broad sweep of this provision are those set forth in § 52-599 (c): “(1) . . . any cause or right of action or . . . any civil action or proceeding the purpose or object of which is defeated or rendered useless by the death of any party thereto, (2) . . . any civil action or proceeding whose prosecution or defense depends upon the continued existence of the persons who are plaintiffs or defendants, or (3)... any civil action upon a penal statute.” The claim of the deceased complainant before the CHRO for monetary losses resulting from the termination of her employment is not “defeated or rendered useless” by her death, because a recovery upon such a claim would enhance the value of her estate. The proceeding, moreover, does not require her continued existence for its prosecution, since her declarations relevant to the matter in issue may be admissible pursuant to General Statutes § 52-172, and other evidence relating thereto may also become available through the investigation the CHRO is attempting to conduct. It is also clear that the proceeding before the CHRO does not constitute “a civil action upon a penal statute.” We conclude that the deceased complainant’s claim for monetary relief does not fall within any of the exceptions to the survival of actions statute and may continue to be pursued by her estate.

II

The result we have reached makes it unnecessary for us to consider the issues presented by the reservation. They are not properly before us in any event, because once the trial court had rendered its judgment of dismissal it had no authority to permit an amendment of the complaint for the purpose of seeking our advice on the reserved question. Practice Book § 3133, prior to its amendment effective October 1, 1986, provided: “The supreme court will not entertain a reservation for its advice upon questions of law arising in an action which is not ready for final judgment, unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action.” Since the trial court had already rendered judgment before reserving the question, our resolution thereof could hardly “enter into the decision of the case.”

There is error, the judgment of dismissal is set aside and the case is remanded to the trial court for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 46a-60 (a) (1) provides: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation or physical disability, including, but not limited to, blindness.”

       General Statutes § 46a-82 (a) provides: “Any person claiming to be aggrieved by an alleged discriminatory practice, except for an alleged violation of section 46a-68, may, by himself or his attorney, make, sign and file with the commission a complaint in writing under oath, which shall state the name and address of the person alleged to have committed the discriminatory practice, and which shall set forth the particulars thereof and contain such other information as may be required by the commission.”

       “[General Statutes] Sec. 46a-88. enforcement of interrogatories. (a) Upon failure of any person to answer interrogatories issued pursuant to subsection (10) of section 46a-54, the commission may file a petition with the interrogatories attached with the superior court of the judicial district in which the violation is alleged to have occurred or where such person resides or transacts business, requesting the court to order that an answer be filed.
      “(b) The commission shall cause a copy of the petition provided for in subsection (a) of this section to be sent by registered or certified mail to the person from whom such answers are sought or his legal representative.
      “(c) The court shall assume jurisdiction over the proceedings provided for in this section and may, after hearing, or in the absence of objection, enter an order which it deems appropriate.
      “(d) The proceedings provided for in this section shall conform to the rules of practice of the superior court.”

       If the trial court had granted the motion to open the judgment, the appeal from that judgment would have to be dismissed, because the right of appeal depends upon the existence of a final judgment. General Statutes § 52-263.

       General Statutes § 46a-86, which sets forth the relief that the CHRO may order upon finding that a respondent has engaged in a discriminatory practice, contains no provision authorizing the imposition of a penalty but is limited to certain compensatory relief as well as remedial orders to effectuate the purpose of the human rights and opportunities statutes.


author: Dannehy, J.

text:
    State of Connecticut v. Kenneth Cates
    (12879)
    Peters, C. J., Healey, Dannehy, Callahan and Celotto, Js.

      Argued November 4, 1986
    decision released March 24, 1987

      Diane Polan, special public defender, with whom, on the brief, was Margaret Olney, law student intern, for the appellant (defendant).

      CarlSchuman, assistant state’s attorney, with whom were JohnM. Waddock, assistant state’s attorney, and, on the brief, Mitchell Goldklang, Mary K. Miller and Roseanne Wagner, law student interns, for the appellee (state).
   Dannehy, J.

The defendant, Kenneth Cates, was found guilty by a jury of aiding and abetting a burglary in the third degree in violation of General Statutes §§ 53a-8 and SSa-lOS, and of larceny in the second degree in violation of General Statutes (Rev. to 1981) § 53a-123. On appeal, he contends (1) that the trial court erred in denying his motion to suppress certain evidence, (2) that the count of the information charging him with larceny lacked specificity and therefore did not give him adequate notice of the charge against him, and (3) that the evidence was insufficient to establish his guilt on either count beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On the morning of June 18, 1982, between the hours of 8 and 9:30, the Quinlan residence at 1082 Racebrook Road in Woodbridge was burglarized. The intruder or intruders apparently gained entry to the house by breaking a lock on a sliding glass door of the house. A white mink cape valued at $1200 was stolen from the premises.

Shortly before 9 on the same morning, a Woodbridge resident reported that he had observed two black men in a black Mercury automobile near Racebrook Road. The resident reported the vehicle registration as 595-AYX. Another Woodbridge resident observed two black men running across Racebrook Road shortly before 9:30 that morning. The males, who appeared to be in their late teens or early twenties, were carrying a white garment and were looking behind them. The defendant is a black male.

On December 14,1982, members of the North Haven police department conducted a search of the defendant’s apartment at 36 Derby Avenue, New Haven, pursuant to a warrant. The officers were searching for certain articles stolen during a burglary in North Haven on October 20,1982. In the course of their search, the officers observed a white mink cape. After the search, the North Haven police department teletyped a report which listed some of the articles they had observed in the defendant’s apartment. Upon reading the report, Detective Dennis Phipps of the Woodbridge police department contacted Detective Peter Hines of the North Haven police department to inquire about the white mink cape that had been seen at the defendant’s residence. On December 20, 1982, Hines phoned the defendant to arrange a meeting between the defendant and the two detectives. It was agreed that the men would meet in front of the defendant’s apartment building.

When the detectives arrived at the apartment building, they did not see the defendant and so they proceeded up to his apartment. Hines knocked at the door. After he identified himself, the defendant’s girlfriend, Marjorie Marshall, who lived with the defendant, opened the door. One of the detectives asked whether there was a white mink cape in the apartment, explaining that such a cape had been stolen from a Woodbridge residence. Marshall replied that she had a white mink cape and that the defendant had given it to her as a gift sometime in August. The detectives asked if they could see the cape for identification purposes, and Marshall complied with the request. Upon examination of the cape, the detectives discovered that the design, labels and initials sewn into the cape matched the description of the missing Quinlan cape. When Marshall was informed of this, she gave the cape to the detectives stating that if it had been stolen, she did not want it. The evidence revealed that the detectives at no time actually entered the apartment during the conversation with Marshall. Evidence presented at trial also indicated that Marshall owned a charcoal gray Mercury automobile with registration 595-AXY, and that she and the defendant were the only two who drove the car.

I

The defendant’s first claim on appeal is that the court erroneously denied his motion to suppress the mink cape obtained at the defendant’s apartment. The basis of the motion was that the warrant authorizing the North Haven police to search the defendant’s apartment on December 14,1982, lacked probable cause. The defendant asserts that because the mink cape was a fruit of this illegal search, it must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

For the defendant to prevail on this claim, we must find not only that the warrant authorizing the December 14, 1982 search was invalid, but also that the seizure of the cape six days later was fatally tainted by the alleged illegality. The state asserts, and we agree, that even assuming the invalidity of the initial search, the voluntary handing over of the cape by Marshall dissipated any taint that might have been created by the warrant. Because of our holding, we need not consider whether the warrant authorizing the search on December 14, 1982, was in fact defective.

Under the exclusionary rule, evidence must be suppressed if it is found to be the “fruit” of prior police illegality. Wong Sun v. United States, supra, 485. All evidence is not, however, a “fruit of the poisonous tree” simply because it would not have been discovered but for the illegal action of law enforcement officials. Id., 487-88; see State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). “Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, supra, 488, quoting Maguire, Evidence of Guilt (1959) p. 221.

In answering this question, we must first consider whether Marshall voluntarily consented to the seizure of the cape by the police on December 20,1982. Whether consent has been given voluntarily is a question of fact to be determined by the totality of the circumstances. Dotson v. Warden, 175 Conn, 614, 619, 402 A.2d 790 (1978). The state bears the burden of establishing such consent. Id., 618. The trial court in this case never reached the question of consent because it found no illegality on the part of the police in conducting the search of the defendant’s apartment on December 14, 1982. Ordinarily, this would necessitate a remand on the question of consent. In this case, however, the parties do not dispute that Marshall voluntarily turned over the cape to the officers, and the record reveals that in doing so, she told the officers that if it was stolen, she did not want to have it. These undisputed facts “are tantamount to a finding of consent and must be so treated” even in the absence of an express finding by the trial court. State v. Hanna, 150 Conn. 457, 471, 191 A.2d 124 (1963).

The voluntary consent of Marshall is only a threshold requirement in determining whether the cape is a tainted fruit of the alleged prior illegality. In Brown v. Illinois, 422 U.S. 590, 603, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), the United States Supreme Court rejected the idea that a confession resulting from an illegal arrest is untainted simply because it is “voluntarily” given. It follows from Brown that the mere fact a consent to a search or seizure is voluntary does not necessarily remove the taint. See Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); People v. Odom, 83 Ill. App. 3d 1022, 404 N.Ed.2d 997 (1980); 4 W. LaFave, Search and Seizure—A Treatise on the Fourth Amendment (1987) § 11.4 (d), p. 410. The Broum court explained that the factors to be considered in determining whether the taint has been dissipated include the temporal proximity of the illegal police action and the discovery of the evidence, “the presence of intervening circumstances,” and “the purpose and flagrancy of the official misconduct.” Brown v. Illinois, supra, 603-604; see also State v. Villafane, supra. When we consider the present case in light of these factors, it is evident that any minimal taint stemming from the allegedly illegal search on December 14,1982, was sufficiently purged.

Turning to the first factor, the temporal proximity of the two events, the facts indicate that six days elapsed between the initial search and the return to the defendant’s apartment. Courts have frequently held that a purportedly voluntary consent given after an illegal arrest or search is nonetheless a tainted fruit when that consent was given very soon after the illegal police action. See, e.g., United States v. Recalde, 761 F.2d 1448, 1459 (10th Cir. 1985) (consent given promptly after illegal arrest invalid); United States v. Gooding, 695 F.2d 78, 84 (4th Cir. 1982) (consent occurring “within the same brief continuous encounter” as illegal seizure invalid); State v. Raheem, 464 So. 2d 293, 297-98 (La. 1985) (consent given within forty minutes of arrest invalid). These decisions imply that a consent given in very close temporal proximity to the official illegality is often a mere submission or resignation to police authority and not necessarily an act of free will. If the alleged consent is not given on the same occasion as the illegality but instead occurs at a later date, it is easier to establish that a consent is untainted. See 3 W. LaFave, supra, § 8.2 (d), p. 195. Because six days passed here between the search of the defendant’s apartment and the seizure of the cape, we do not think that Marshall’s consent was merely a submission to police authority.

The second consideration articulated in Brown v. Illinois, supra, concerns the presence of factors intervening between the illegal police action and the consent which would tend to negate any inference that the evidence was obtained by exploitation of the illegality. See Johnson v. Louisiana, 406 U.S. 356, 365, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972). In this case, the consent to the seizure of the cape was not given by the defendant, the target of the search on December 14, 1982. Instead, it was furnished by Marshall, a third party, who stated that she had been given the cape. In United States v. Ceccolini, 435 U.S. 268, 277, 98 S. Ct. 1054, 55 L. Ed. 2d 268 (1978), a case which considered whether the testimony of a witness should be suppressed as a tainted fruit of an illegal search, the court observed that, “[t]he time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify.” The reasoning of the Ceccolini court can be easily applied to the present case. When the police returned to the apartment that the defendant shared with Marshall six days after the initial search, they identified themselves and explained the purpose of their visit. After informing Marshall that the cape matched the description of one stolen from a Woodbridge residence, Marshall gave the cape to the officers stating that if the cape was stolen, she did not want it. The time the consent was given (i.e., six days after the search), the place from which it was obtained (at the threshold of the apartment and not in a police station or vehicle), and the proper manner in which the officers conducted themselves lead to the inescapable conclusion that Marshall’s handing over of the cape was the “product of detached reflection and a desire to be cooperative.” The allegedly illegal search on December 14,1982, appears to have had little, if any, influence on Marshall’s decision to turn over the cape to the police on December 20, 1982.

The final factor to be considered in the Brown analysis involves “the purpose and flagrancy of the official misconduct.” Brown v. Illinois, supra. At trial, the defendant clearly stated that he was making no claim of improper police conduct. The record reveals that in conducting the December 14, 1982 search, the police were acting under a warrant which had been issued by a magistrate and later upheld by the trial court judge. They were searching not for the cape but for items involved in an unrelated burglary. When the Wood-bridge police learned of the presence of a cape at the apartment, the defendant himself was contacted and a meeting was arranged. The officers who met Marshall at the apartment identified themselves and explained the purpose of their visit. At no point did they actually enter the apartment. From this brief factual recitation, it is abundantly clear that the present case is not one of flagrant police misconduct. We conclude, therefore, that Marshall’s voluntary consent to the seizure of the cape was not obtained by exploitation of any alleged prior illegality but instead was an act of her own free will. This consent dissipated any minimal taint arising out of the allegedly illegal search on December 14, 1982. Because of our holding, we need not discuss under the present circumstances whether a good faith exception to the exclusionary rule exists. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied, 468 U.S. 1250, 105 S. Ct. 52, 82 L. Ed. 2d 942 (1984).

II

The defendant next claims that the count of the information charging him with larceny in the second degree is constitutionally infirm because it fails to specify the date on which he supposedly committed the offense. The information alleged that the larceny of the mink cape was committed “on or after the 18th day of June 1982.” The defendant claims that the failure to specify a more precise date renders the information defective as violative of the sixth amendment to the United States constitution and of article first, § 8, of the Connecticut constitution. We cannot agree.

Initially, we note that the defendant never raised this precise claim at trial. Although the record reveals that he did move for a bill of particulars seeking, in part, a particularization of the date and time of the alleged offense, the court, for some undisclosed reason, never ruled on the motion. It is, of course, the defendant’s burden as appellant to perfect the appellate record. Our usual practice is not to review claims of error not distinctly raised at trial. Practice Book § 4185 (formerly § 3063). We have recognized, however, that an accused has a constitutional right “to be informed of the nature of the charge against him ‘with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution of the same offense . . . .’ State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979).” State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986). The potential for encroachment on this constitutional right renders the defendant’s claim reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). See State v. Orsini, 187 Conn. 264, 274, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982).

In our jurisdiction, it is well settled that the crime charged need not be proven to have occurred “on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the Statute of Limitations.” State v. Lorusso, 151 Conn. 189, 191, 195 A.2d 429 (1963); see also State v. Orsini, supra. If the lack of a sufficiently definite date implicates the defendant’s right to know the nature of the charges against him, however, we will find that the preparation of his defense has been unconstitutionally prejudiced. State v. Orsini, supra, 274-75.

Although the larceny count here did not specify the exact date of the alleged offense, we are unable to discern how the defendant here could possibly have been misled as to the nature of the offense charged. The only theory of liability for larceny upon which the defendant was prosecuted was that he “did wrongfully take, obtain or withhold” the cape belonging to Mrs. Quinlan. During discovery, the defendant obtained copies of the arrest and search warrants which indicated that the larceny took place on June 18,1982. At trial, the state introduced evidence, all of which indicated that the larceny occurred on June 18, 1982. The language “on or after” June 18, 1982, in the information appears to have been a technical error which was never seriously challenged by the defendant. Moreover, we fail to see how the language of the information prejudiced the defendant in the preparation of his defense, in light of the fact that he chose not to testify or to present any evidence in his defense. From this review of the record, it is clear that the defendant was sufficiently informed of the nature of the crime with which he was charged and that the pleadings were definite enough to enable him to plead his conviction in bar of any future prosecution for the larceny of the cape. State v. Orsini, supra, 275; State v. Sumner, supra.

Ill

The defendant finally contends that the evidence introduced at trial was insufficient to establish his guilt on both counts beyond a reasonable doubt. The evidence produced was largely circumstantial in nature. Although the defendant acknowledges that there is no legal distinction between direct and circumstantial evidence as far as probative force is concerned; see State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984); he points out that the inferences drawn from circumstantial evidence must be rational and not based on mere speculation or conjecture. State v. Kish, 186 Conn. 757, 768, 443 A.2d 1274 (1982). The thrust of the defendant’s argument is that the evidence did not logically support the conclusion that the defendant was present at the scene of the burglary and committed the crimes charged.

In reviewing claims concerning the sufficiency of the evidence, we will construe the evidence in the light most favorable to sustaining the jury’s verdict, and will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984); State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981). The defendant here was charged with aiding and abetting a burglary in the third degree and of committing larceny in the second degree. Although there was no direct evidence presented, such as fingerprints or eyewitness testimony, indicating that the defendant had committed the burglary and larceny, the jury heard sufficient circumstantial evidence from which it could reasonably infer that the defendant was guilty of the crimes charged. The jury was informed that on the morning of June 18, 1982, an intruder or intruders broke the lock on a sliding glass door, entered the Quinlan home in Woodbridge, and stole a white mink cape. At about the same time and place at which the burglary occurred, a car similar to the one usually driven by the defendant was seen, and the occupants were identified as two black men. Testimony also revealed that at about the time of the burglary, two black men were seen running across the road where the crime had occurred, carrying a white garment. The stolen cape, inside of which the initials “MHQ” were sewn, was found in the defendant’s apartment about six months after the crime took place, and the defendant’s only explanation of its presence was that he bought it “on the street.”

“[T]he requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition.” State v. Foord, 142 Conn. 285, 295, 113 A.2d 591 (1955). It was well within the province of the jury to discredit any testimony that he had bought the coat on the street, and to infer instead, from all of the evidence presented, that the defendant committed the crimes as charged. Contrary to the defendant’s assertions, the six month time span between the burglary and the finding of the cape at the defendant’s apartment did not make it impossible for the jury to infer that the defendant committed the offenses, especially in light of the fact that initials were sewn inside the cape, making it readily identifiable and not easily disposable. See United States v. Tisdale, 647 F.2d 91, 93 (10th Cir.), cert. denied, 454 U.S. 817, 102 S. Ct. 95, 70 L. Ed. 2d 86 (1981); State v. Brightman, 252 Iowa 1278, 1283, 110 N.W.2d 315 (1961). The evidence implicating the defendant, while certainly not overwhelming, when considered in the light most favorable to the state was sufficient to support the jury’s verdict of guilty.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-8. criminal liability for acts of ANOTHER. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      “[General Statutes] Sec. 53a-103. burglary in the third degree: class D felony, (a) A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein. ...”

       At the time of the offense, General Statutes (Rev. to 1981) § 53a-123 provided in part: “(a) A person is guilty of larceny in the second degree when: (1) The property consists of a motor vehicle, (2) the value of the property or service exceeds five hundred dollars, or (3) the property, regardless of its nature or value, is taken from the person of another.”

       The defendant argues that the claim of error was preserved because he excepted to part of the court’s instructions on the larceny charge. The challenged portion of the court’s charge and defense counsel's objections are as follows:
      “The Court: In the course of your deliberations you must also decide if the defendant is guilty of the offense of larceny in the second degree precisely as it is charged in the information. Specifically, in order to find Mr. Cates guilty of this offense you must find that the State has proven to you beyond a reasonable doubt that on or after the eighteenth day of June, 1982, Mr. Cates took, obtained or withheld a white mink cape without any legal justification or excuse, that the white mink cape belonged to Mary Quinlan, that the value of the cape was more than $500 and that Mr. Cates took, obtained or withheld the cape on or after that day with the specific intention to deprive another person of it. . . .
      “The Court: Any exceptions to the charge?
      “Ms. Polan: Yes, your Honor, I just have one exception to the charge and that’s specifically the following: I think that the charge should have been limited to, on the larceny charge, to whether the State has proved that Mr. Cates obtained, took or withheld the cape on or after June eighteenth and the jury have been specifically told that they were not to find the defendant guilty of that charge if they only found that he was in possession of the white mink coat on December 20, 1982.
      “The reason is that the defendant is separately charged in a separate information which is entitled CR6-214419 which is now pending in this court with being in possession of the mink cape on or about December 20, 1982, and the arrest warrant in that file is dated December 22,1982, to the charge of larceny in the third degree and it specifically includes the white mink cape and its value is also included in that charge.
      “I do not believe it’s appropriate for the jury in this case to consider that charge and I belive they should have been specifically instructed that if that’s what they find he is not guilty in this case.
      “The Court: Overruled. You may have an exception.
      “Ms. Polan: Exception.”
      From this passage, it is clear that the defendant was not objecting to the use of the phrase “on or after” June 18,1982, but was instead requesting that the jury be told that they could not convict him on the larceny count if they found only that he was in possession of the mink cape on the day of the search. This objection did not reasonably alert the court to the deficiencies in the affidavit now advanced, and therefore does not satisfy the requirement of Practice Book § 315 that counsel must “state distinctly the matter objected to and the ground of objection.” See Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 520 A.2d 1008 (1987).

         We recognize that the Woodbridge resident who saw the car described it as being black in color, whereas the Marshall vehicle was later determined to be charcoal gray. In addition, the registration of the car seen in Woodbridge was reported as 595-AYX, while the license plate of the Marshall vehicle read 595-AXY. We agree with the state that the jury could reasonably have thought that these minor inaccuracies were well within the range of human error.