author: Peters, C. J.

text:
    Fairfield Plumbing and Heating Supply Corporation v. William J. Kosa
    (14294)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued October 31
    decision released December 17, 1991

      Joel Z. Green, for the appellant (plaintiff).

      David G. Volman, for the appellee (defendant).
   Peters, C. J.

The principal issue in this appeal is whether a judgment creditor who has foreclosed upon a judgment lien pursuant to General Statutes § 52-380a (c) is entitled to a deficiency judgment pursuant to General Statutes § 49-14 (a). After concluding that the provisions of § 49-14 (a) concerning deficiency judgments do not apply to judgment lien foreclosure proceedings, the trial court, Jones, J., ruled that the plaintiff, Fairfield Plumbing and Heating Supply Corporation, was not entitled to a deficiency judgment against the defendant, William Kosa. The plaintiff appealed the denial of its motion for a deficiency judgment to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We reverse.

On November 22,1988, the plaintiff obtained a judgment against the defendant in connection with an action on an account for plumbing hardware and supplies sold and delivered by the plaintiff to the defendant. Pursuant to § 52-380a (a), the plaintiff recorded a judgment lien on the land records of the towns of Fairfield and Easton on December 15, 1988. At that time, the defendant owned a one-half interest in properties located in each town. On June 12, 1989, because the judgment debt had not been satisfied, the plaintiff commenced a foreclosure action on both properties in the Superior Court for the judicial district of Fairfield. The plaintiff sought relief in the form of strict foreclosure and a deficiency judgment. On March 5,1990, the trial court rendered a judgment of strict foreclosure on the Fairfield property. In that proceeding, the trial court, Thim, J., determined that the debt owed to the plaintiff was $152,210.12 and set May 1, 1990, as the law day. When the defendant did not redeem on May 1, the title to the one-half interest in the Fairfield property vested in the plaintiff. The plaintiff took title to the property subject to prior encumbrances.

Alleging that the value of the one-half interest in the property minus the encumbrances that were superior in right was less than the value of the judgment, the plaintiff filed a motion for a deficiency judgment pursuant to § 49-14 (a) within thirty days of the vesting of title in the plaintiff. See Practice Book § 528. At the hearing held in conjunction with the motion, the trial court, Jones, J., heard extensive testimony from both parties about the value of the subject property and the amount of the encumbrances that were superior to the plaintiff’s interest in the property. The court thereafter denied the plaintiff’s motion, not on evidentiary grounds, but because of its conclusion that, as a matter of law, the provisions with respect to deficiency judgments contained in § 49-14 (a) did not apply to the foreclosure of a judgment lien. The court made no findings concerning the amount of the deficiency claimed by the plaintiff.

Section 49-14 (a) provides that any party to a mortgage foreclosure may, within thirty days after the time limited for redemption, file a motion seeking a deficiency judgment. The court must then hold a hearing, hear evidence, establish a value for the mortgaged property, and render judgment for the mortgagee for any difference between such value and the mortgagee’s monetary claim. In any further action upon the debt, note or obligation, the mortgagee can recover only the amount of such deficiency judgment. The question before us is whether § 52-380a (c), which provides that “[a] judgment lien on real property may be foreclosed or redeemed in the same manner as mortgages on the same property,” incorporates by implied reference the deficiency judgment provisions of § 49-14 (a). We agree with the plaintiff that the two statutes must be read together to afford the plaintiff access to a proceeding to determine the deficiency remaining after strict foreclosure of a judgment lien.

I

At common law, a mortgagee was required to elect between a foreclosure action or an action on the underlying debt. In Derby Bank v. Landon, 3 Conn. 62, 63 (1819), this court held that “a foreclosure and consequent possession, is in the nature of satisfaction of a debt secured by mortgage. It is deemed an appropriation of the thing pledged, in payment of the demand, for which it was security.” See also Swift v. Edson, 5 Conn. 532, 534-35 (1825). Because the entry of judgment of foreclosure precluded any further common law proceedings upon the note, the legislature, in Public Acts 1833, c. 18, §§ 1, 2, created the remedy of the deficiency judgment as the only available means of satisfying a mortgage debt when the security is inadequate to make the plaintiff whole. D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05A, p. 158. “[A] statute forbidding suit upon the . . . original indebtedness to recover the deficiency, does not operate to prevent suit upon a judgment for deficiency actually obtained in a foreclosure action.” 2 C. Wiltsie, Mortgage Foreclosure (4th Ed. Eager 1927) § 949, p. 1206.

Before rendering a deficiency judgment, the court must have a mechanism for establishing the value of the subject property to determine whether and to what extent a deficiency exists. While a foreclosure by sale automatically establishes the value of the property, a strict foreclosure does not have this secondary consequence. Only a proceeding for a deficiency judgment following a strict foreclosure establishes the amount of remaining indebtedness. In 1878, the predecessor to § 49-14 (a) “provide[d] for an appraisal which [was] conclusive as to the value of the property where a deficiency [was] sought by the plaintiff upon a strict foreclosure . . . .” Cronin v. Gager-Crawford, Co., 128 Conn. 688, 694, 25 A.2d 652 (1942). Prior to 1979, the statute required the court presiding over the foreclosure action to appoint three disinterested persons to appraise the property. The appraisers were to submit a written report of their appraisal to the clerk of the court in which the foreclosure was had and the report was to be a part of the file of the foreclosure suit. The appraisal was final and conclusive as to the value of the mortgaged property. Mere subtraction was all that was required to render a deficiency judgment.

In 1979, the legislature amended the procedure for calculating a deficiency in a strict foreclosure action in response to a decision by this court holding the existing procedure unconstitutional. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1979 Sess., pp. 539-52. The only change wrought by the amendment contained in § 49-14 (a) is the procedure by which the valuation of the mortgaged property is accomplished. Following the amendment, if a motion for deficiency judgment is filed within thirty days after the time limited for redemption, the court hears evidence on the value of the property from both parties and then establishes a conclusive valuation of the property.

II

In light of this history, we agree with the defendant’s observation that the remedy of a deficiency judgment is necessary in mortgage foreclosures because a judgment of foreclosure precludes further proceedings on the underlying debt. Concededly, a judgment of foreclosure does not have the same effect on a judgment lien. Foreclosing on a judgment lien does not extinguish the original judgment, which continues to be valid as to any uncollected portion. Cf. Gushee v. Union Knife Co., 54 Conn. 101, 107, 6 A. 192 (1886). The defendant maintains that this distinction in rationale obviates the need for granting a deficiency judgment to the holder of a partially unsatisfied judgment lien. We are unpersuaded.

It is true that, unlike a mortgagee, a judgment lienor may pursue a debtor in a separate action, i.e., through execution pursuant to General Statutes § 52-3501 Thus, the process for obtaining a deficiency judgment contained in § 49-14 (a) is not absolutely necessary to a judgment creditor left with a partially unsatisfied judgment following a strict foreclosure. Undoubtedly, however, in a separate action maintained by the judgment creditor, the debtor would raise the claim of whole or partial satisfaction of the debt in a set-off. At that point, in order to calculate the amount of the judgment that had been satisfied through strict foreclosure, the court would be required to determine the value of the property at the time of foreclosure. This becomes increasingly difficult as time passes. Outside of the process prescribed by § 49-14 (a), there is no other procedural framework for establishing the value of the property contemporaneously with a strict foreclosure on a judgment lien. Thus, even though the alternative procedure of bringing a separate action may be available to a judgment lienor, it is far more efficient for the parties and the court to have the issue of valuation determined as part of the foreclosure proceeding rather than as part of a subsequent action. We are unpersuaded that the legislature, in enacting the predecessors to both §§ 52-380a (c) and 49-14 (a) in 1878, intended to leave only an inefficient lien enforcement procedure for judgment lienors, while creating such an efficient and logical procedure for mortgagees.

Our construction of § 49-14 (a) as applicable both to the strict foreclosure of a mortgage and to the strict foreclosure of a judgment lien finds further support when we consider related rights arising out of a foreclosure by sale proceeding. With regard to such foreclosures, the legislature has not distinguished between mortgagees and judicial lienholders. General Statutes § 49-28 explicitly provides for a deficiency judgment in a foreclosure by sale when “the proceeds of a sale are not sufficient to pay in full the amount secured by any mortgage or lien thereby foreclosed . . . .” (Emphasis added.) Having afforded a judgment lienor in this state a deficiency judgment in a foreclosure by sale, the legislature probably did not intend to differentiate between mortgages and liens with respect to deficiency judgments in strict foreclosures. We can discern no policy reason why the legislature would have required a judgment lienor to pursue a foreclosure by sale rather than a strict foreclosure in order to obtain a deficiency judgment.

“ [Compelling principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. Sutton v. Lopes, 210 Conn. 115, 121, 513 A.2d 139, cert. denied sub nom. McCarthy v. Lopes, 479 U.S. 964, 107 S. Ct. 466, 93 L. Ed. 2d 410 (1986); Narel v. Liburdi, 185 Conn. 562, 571, 441 A.2d 177 (1981), cert. denied, 456 U.S. 928, 102 S. Ct. 1974, 72 L. Ed. 2d 443 (1982). We must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. Peck v. Jacquemin, 196 Conn. 53, 63-64, 491 A.2d 1043 (1985).” Turner v. Turner, 219 Conn. 703, 712-13, 595 A.2d 297 (1991).

The predecessor to § 49-14 (a), as originally enacted in 1878, provided that the appraisal report was to be “a part of the files of such foreclosure suit, and such appraisal shall be final and conclusive as to the value of such mortgaged property.” The valuation of the property was, and remains, part of a strict foreclosure action. We are persuaded that when the legislature wrote, in the same year, that “[a] judgment lien on real property may be foreclosed or redeemed in the same manner as mortgages on the same property,” it intended precisely that. Every aspect of a mortgage foreclosure applies equally to a foreclosure of a judgment lien, including the right to a deficiency judgment pursuant to § 49-14 (a). Accordingly, we hold that, pursuant to § 52-380a (c), the provisions of § 49-14 (a) concerning deficiency judgments apply to strict foreclosures upon judgment liens.

The judgment is reversed and the case is remanded for further proceedings on the plaintiffs motion for a deficiency judgment.

In this opinion the other justices concurred.

       General Statutes § 52-380a provides in pertinent part: “(e) A judgment lien on real property may be foreclosed or redeemed in the same manner as mortgages on the same property.”

       General Statutes § 49-14 provides in pertinent part: “(a) At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiffs claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       General Statutes § 52-380a provides in pertinent part: “(a) A judgment lien, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property by recording, in the town clerk’s office in the town where the real property lies, a judgment lien certificate, signed by the judgment creditor or his attorney or personal representative, containing: (1) A statement of the names and last-known addresses of the judgment creditor and judgment debtor, the court in which and the date on which the judgment was rendered, and the original amount of the money judgment and the amount due thereon; and (2) a description, which need not be by metes and bounds, of the real property on which a lien is to be placed, and a statement that the lien has been placed on such property.”

       The plaintiff subsequently learned that the value of the encumbrances that were superior and prior in right to the plaintiffs judgment lien on the Easton property exceeded the fair market value of the premises. Accordingly, the plaintiff withdrew those portions of its complaint that related to the Easton property.

       The plaintiff also sought monetary damages, possession of the liened premises, reasonable attorney’s fees, interests, costs of suit and such other and further relief available in law or equity.

       This figure includes the original judgment of $132,482.01 plus costs, interest and attorney’s fees. A basis for the award of attorney’s fees is not disclosed by the record and is not challenged on appeal.

       The plaintiff presented evidence that the value of the property was $315,000 at the time of foreclosure while the defendant presented evidence that the value was $500,000.

       This section applies only to deficiency judgments in strict foreclosure actions. When a foreclosure is by sale, the court appoints three disinterested persons to appraise the property and submit a report to the clerk of the court. General Statutes § 49-25. An appraisal upon a foreclosure of this nature is not conclusive as to the value of the property. Cronin v. Gager-Crawford Co., 128 Conn. 688, 692, 25 A.2d 652 (1942). Rather, the price realized upon the sale of the property fixes the amount for which a deficiency may be entered pursuant to General Statutes § 49-28. See also D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05B, p. 161.

       This common law rule is now codified in General Statutes § 49-1, which provides in part that “[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure.”

        In Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 576-77, 409 A.2d 1020 (1979), this court held that certain provisions of the former General Statutes § 49-14 violated due process. We concluded that the failure of the statute in effect at the time to mandate a hearing before the trial court where the defendant could present evidence as to value and cross-examine witnesses deprived the defendant of his constitutional right of confrontation.

       In the present case, in response to the plaintiffs motion for a deficiency judgment pursuant to General Statutes § 49-14 (a), the trial court held a hearing to determine the value of the foreclosed upon property and prior encumbrances just three months after the strict foreclosure judgment entered.

       Similarly, the law in other jurisdictions does not appear to distinguish between mortgages and liens with respect to deficiency judgments. Early cases show that, irrespective of statute, a foreclosure upon a lien was treated like a foreclosure upon a mortgage, including the right to a deficiency judgment. In discussing the foreclosure of a mechanic’s lien, the New York Court of Appeals stated: “To some extent the judgment is thus assimilated in form to a judgment upon the foreclosure of a mortgage, wherein the right to proceed against the land is accompanied by a judgment against the principal debtor for any deficiency. There is nothing . . . which prevents one establishing a lien from obtaining his full relief, which includes Ms right to enforce it, not only out of the property against which the lien is filed, but for any deficiency against the person who for the amount thereof is indebted to the claimant.” Ringle v. Wallis Iron Works, 93 N.Y. (86 Hun.) 153, 155-56, 33 N.Y.S. 398 (1895), aff'd, 155 N.Y. 674, 49 N.E. 1103 (1898).


source: Caselaw Access Project

author: Berdon, J.

license: Public Domain

text:
    State of Connecticut v. Eddie Dennison
    (14289)
    Shea, Callahan, Covello, Borden and Berdon, Js.
    Argued October 3
    decision released December 24, 1991

      Suzanne Zitser, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Kent Drager and Susan Cococeia, assistant public defenders, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Berdon, J.

The issues raised in this appeal are grounded upon the ruling of the trial court requiring a defense witness, Richard Clark, to invoke his fifth amendment privilege against self-incrimination in the presence of the jury during cross-examination by the state. The Appellate Court refused to consider this claim because it concluded that the defendant, Eddie Dennison, had failed to state “distinctly” the reasons for his objections as required by Practice Book §§ 288 and 4185, and also declared that, even if the claims had been considered, the court “would find them without merit.” State v. Dennison, 24 Conn. App. 27, 31 n.1, 585 A.2d 1240 (1991). The Appellate Court, after consideration of other issues not before this court, affirmed the conviction of attempt to commit robbery in the first degree while armed with a deadly weapon in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134 (a) (2). The defendant, after this court granted certification of three issues pertaining to the invocation of the privilege, appealed from the Appellate Court’s judgment.

We conclude that the claimed error was adequately preserved, that the trial court improperly required the witness Clark to invoke his fifth amendment privilege against self-incrimination in the presence of the jury and that the error was harmful. Accordingly, we reverse the judgment of the Appellate Court.

Although the facts that the jury could reasonably have found are set forth in the opinion of the Appellate Court, we summarize those pertinent to the certified issues. Shortly after midnight on January 31,1988, Andre Davis, the victim, and Clark, his friend, drove to Hurlburt Street in New Haven. They exited their vehicle and spoke with another friend. When they started to return to the vehicle, they passed the defendant, who was among a group of other people. The defendant pressed a gun to Davis’ stomach, led him into an alley and attempted to take his wallet. A struggle ensued between Davis and the defendant, and Clark came to Davis’ aid. During this time, a shot was fired from the group of people on the street. Shortly thereafter, the defendant’s gun was also discharged. Clark then fled. While Davis was still struggling with the defendant, Demetrious Woods, a third party, appeared with his gun drawn. As Davis began to run, Woods shot him in the back.

The defendant elected not to testify, but offered the testimony of Clark, a friend of Davis. At the time he gave his testimony, Clark was an inmate at Manson Youth Institution in Cheshire serving a sixteen year sentence for manslaughter. The trial court appointed Attorney William Tiernan to advise Clark of his constitutional right against self-incrimination. Clark testified that although he did not know what initiated the struggle between Davis and the defendant, it was Davis and not the defendant who had the gun. He stated that he had seen a gun in Davis’ possession earlier in the evening, and that he saw Davis with the same gun at the time of the incident. Clark testified that as he attempted to break up the fight, the gun fell from Davis’ hand to the ground. After seeing the gun fall, Clark heard a shot fired from behind him and saw Woods shoot Davis. Clark surmised that it was Woods who had fired the earlier shot.

In the presence of the jury, during cross-examination of Clark by the state and over the objections of the defendant, the state asked Clark the following three questions, which are the subject of the defendant’s claims.

(1) “[Assistant State’s Attorney David Gold]: Mr. Clark, you indicated earlier that you don’t carry a gun. Isn’t it a fact, sir, that in August of 1985 you had a gun with you, that you got involved in a fight with other people on a basketball court, you threatened all the rest of the people in the fight with the gun?

“[William Tiernan]: If your Honor please, I am going to suggest to my client that under the circumstances he avail himself of his fifth amendment privilege and not answer the question which may tend to incriminate him.
“[Richard Clark]: I will not answer that question, your Honor.
“The Court: All right. On the basis of the advice of your attorney.
“[Richard Clark]: Yeah.
“The Court: All right.”

(2) “[David Gold]: And sir, isn’t it also true that on May 7, 1986, you also were involved in an incident in which you produced a handgun in an effort to threaten someone else that was involved in a fight with you on May 7, 1986?

“[William Tieman]: I again will advise my client, your Honor, not to answer that question for the reason that the answer may tend to incriminate himself and I advise him to take his fifth amendment privilege.
“[Richard Clark]: I will not answer that question either, your Honor, on the advice of my attorney.
“The Court: All right.”

(3) “[David Gold]: And sir, isn’t it also true that on May 2,1988, at approximately 7 p.m. you were armed with a handgun and used that handgun to take the life of the victim for which you were later convicted of manslaughter?

“[William Tiernan]: With respect to that question, your Honor, and the question of the use of a weapon, I again suggest to my client that he not answer that question on the basis of the fact that the answer may tend to incriminate him.
“[Richard Clark]: I will not answer that question, your Honor.
“The Court: All right.”

I

The first issue presented in this appeal is whether the defendant adequately preserved his claim that the trial court improperly allowed the state to elicit Clark’s invocation of the fifth amendment privilege during cross-examination in the presence of the jury. Practice Book § 288 provides in pertinent part that “[wjhenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had.” Section 4185 provides in part that the Supreme Court is not “bound to consider a claim unless it was distinctly raised at the trial . . . .” We have noted that “[t]he purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986). This rule is essential to avoid trial by ambush. State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990).

The scenario that triggered the issue in this case occurred when the state was cross-examining Clark as to whether he carried a gun on the night of the incident. When Clark answered no, the state asked “[w]hat did you use to shoot the person that [sic] convicted you of manslaughter?” Both defense counsel and Clark’s attorney objected, and the court sustained the objections.

The trial court then excused the jury and, in their absence, the state indicated that it intended to ask Clark about several instances in which he carried a weapon, threatened to use a weapon and did use a weapon, all for the purpose of impeaching Clark’s credibility. Tiernan apprised the court that he would advise Clark to refuse to answer any such questions on the ground that it might incriminate his client. Clark indicated to the court he would follow his attorney’s advice.

The state then requested that the jury be brought back so that it could resume its cross-examination of Clark. The defendant objected to the state’s request and the following colloquy occurred.

“[Assistant State’s Attorney David Gold]: I intend to ask some questions and if Mr. Tiernan wants to on behalf of his client exercise his client’s rights, I suppose that’s what is going to happen. There is no reason then for any offer of proof and we can bring the jury back if that’s the situation then, that’s the decision.

“[Defense Counsel James Radda]: I don’t think that is the way it should happen, judge. I don’t think Mr. Gold is entitled to ask questions as they stand now. He knows Mr. Tiernan is going to tell his client not to answer on the grounds that he may incriminate himself. That’s to Mr. Gold’s advantage. I think Mr. Gold should be made now to make his inquiry outside the presence of the jury and let Mr. Tiernan and Mr. Clark decide whether there’s a risk of incrimination.”

The court ordered that the state conduct its voir dire of Clark outside the presence of the jury. After each question was asked, Tiernan advised Clark to avail himself of his fifth amendment privilege against self-incrimination. The court then ruled that it would allow the state to ask the questions of Clark in the presence of the jury, thereby compelling Clark to exercise his privilege before the jury. The defendant objected again:

“[James Radda]: I object to this same scenario taking place before the jury. It serves absolutely no purpose whatsoever for a question to be asked that now the court knows is not going to be answered on the grounds of the fifth amendment.

“The Court: I will overrule the objection. I think the way the matter has arisen that it is proper cross-examination.

“[James Radda]: Exception please, judge.”

The defendant clearly placed his objections on the record. He stated that it “serves . . . no purpose whatsoever,” and that it was to the state’s advantage. In a nutshell, the defendant objected on the ground that, since the questions would remain unanswered, they served no purpose except to prejudice the defendant before the jury. The defendant took an appropriate exception to the court’s ruling. The state argues that the objection was not sufficient because the defendant did not incorporate the explicit language he now uses in his brief to describe the effects of the ruling. This argument is unavailing because the reasons stated by counsel for the defendant were succinct and adequately alerted the trial court to the basis of the defendant’s objection. We conclude that the trial court and the state were fairly put on notice of the basis for the defendant’s objections; see State v. Gonzales, 186 Conn. 426, 433, 441 A.2d 852 (1982); and that the Appellate Court improperly concluded that the defendant’s claim had been inadequately preserved.

II

It is firmly established that “ ‘[njeither [the state nor the defendant] has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him.’ ” State v. Bryant, 202 Conn. 676, 683, 523 A.2d 451 (1987), quoting United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), reh. denied, 503 F.2d 568 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S. Ct. 631, 42 L. Ed. 2d 648 (1974); State v. Daley, 11 Conn. App. 185, 188, 526 A.2d 14 (1987). “The rule is grounded not only in the constitutional notion that guilt may not be inferred from the exercise of the Fifth Amendment privilege but also in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations. The jury may think it high courtroom drama of probative significance when a witness ‘takes the Fifth.’ In reality the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination.” Bowles v. United States, 439 F.2d 536, 541-42 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971).

Accordingly, we have held that a witness may not be called to the stand in the presence of the jury merely for the purpose of invoking his privilege against self-incrimination. State v. Person, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, U.S. , 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991); State v. Bryant, supra; State v. Reddick, 197 Conn. 115, 126-28, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). Such testimony is not relevant, and could be prejudicial. We conclude, therefore, contrary to the determination of the Appellate Court, that the defendant’s claim has merit.

Ill

We note that the defendant’s claim that the trial court impermissibly required Clark to invoke the fifth amendment privilege against self-incrimination in the presence of the jury does not present a constitutional issue in this case. State v. Person, supra, 659. It is a claim of evidentiary trial error. Id.; see Namet v. United States, 373 U.S. 179, 186, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963). Thus, the claim is reviewable under the standard of harmless error applicable to nonconstitutional claims; State v. Person, supra, 660; and the defendant bears the burden of establishing that the trial court’s erroneous ruling was harmful to him in that it probably affected the outcome of the trial. State v. Burak, 201 Conn. 517, 527, 518 A.2d 639 (1986); State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

In Namet, the United States Supreme Court identified two areas where prejudice can occur. “First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, [262 F.2d 535 (2d Cir. 1959)]. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government’s closing argument attempted to make use of the adverse inferences from their refusals to testify. See also United States v. Tucker, 267 F.2d 212 [3d Cir. 1959]. A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government’s chief witness. [United States v. Maloney, supra,] 536-37.” Namet v. United States, supra, 186-87; State v. Reddick, supra, 126.

In the present case, in order to determine whether the ruling of the trial court was prejudicial, we must consider the invocation of the privilege in response to the specific questions in the context of the circumstances of the case. Clark’s testimony and credibility were critical because he was the only eyewitness; he was a friend of the victim and had accompanied him to the area where the incident occurred; and he was the only defense witness who could support the claim that the defendant did not have or use a gun at the time of the incident, a necessary element of the crime charged. Clark’s credibility was impaired because the jury knew that at the time of his testimony he was incarcerated for the crime of manslaughter and that he had a previous conviction for carrying a dangerous weapon. The defendant, already having had his witness come to him saddled with heavy baggage, was also required to contend with those inferences that the jury undoubtably drew as a result of Clark’s “taking the fifth.”

This case fits the mold of at least the second area of prejudice outlined in Namet, i.e., “inferences from a witness’ refusal to answer . . . [which] unfairly prejudiced the defendant.” Namet v. United States, supra, 187. Here, the state made a conscious and flagrant attempt to induce the jury to draw adverse inferences. It was clear, from the voir dire, that the state knew Clark would invoke the privilege for these specific questions. The state pursued the questions in the presence of the jury, thus allowing the jurors to draw highly prejudicial inferences from the witness’ invocation of his “fifth”; there could be no other purpose. It also added critical weight to the state’s position that the defendant used a gun in his attempt to commit robbery. By casting another shadow on Clark’s credibility, the only witness to support the claim that the defendant had no weapon, it unfairly prejudiced the defendant.

Finally, the full impact of the prejudice was underscored by the state’s summation:

“[Assistant State’s Attorney David Gold]: Now, Richard Clark. I am going to jump ahead for a minute if I can. Richard Clark comes in yesterday. You know what amazed me is he sat up there and he answered the questions and he told you an entire story and then with that same look, the same composure that he answered all of the questions, he told you the story that this was Mr. Davis’s gun.
“The same way he looked at you and told you that it was Mr. Davis’s gun is the same way he looked at you and told you he never carries a gun, he never uses a gun. This is from someone who has been convicted of the crime of manslaughter.
“And when questions came to Mr. Clark’s attention that he chose not to answer, he exercised his fifth amendment—
“[Defense Attorney James Radda]: I object to that, judge. I’m sorry.
“The Court: Overrule the objection.
“[David Gold]: I’m just—I am not suggesting he doesn’t have a constitutional right to exercise his fifth amendment. He did. But it was interesting, I thought, he looked the same way and said no, I don’t carry a gun, I don’t use a gun and then he did, as is his right, exercised the fifth amendment with that same composure.”

The state further argued before the jury: “But when Richard Clark comes in here and he looked you dead in the eye and he says to you I don’t carry a gun, I don’t use a gun dead in the eye and then you hear what you hear, you have to shake your head and say what’s going on. And then when he takes, as is his right, he takes his fifth amendment, we know it is his right to do it, but I think that you can assess his credibility by considering that.” These statements make it clear that the state consciously attempted to use Clark’s invocation of his privilege against self-incrimination to entice the jury to draw an inference that was improper and prejudicial.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case for a new trial.

In this opinion the other justices concurred.

       General Statutes § 53a-49 (a) (2) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime he . . . intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-134 (a) (2) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... is armed with a deadly weapon.”

       We granted the defendant’s petition for certification limited to the following issues: “1. Did the Appellate Court properly conclude that the defendant’s claim that the trial court was incorrect in permitting defense witness Richard Clark to invoke his fifth amendment privilege in front of the jury was not adequately preserved and thus did not warrant review on appeal?
      “2. Did the Appellate Court properly conclude that even if it were to consider the defendant’s claim based upon the trial court’s ruling, the claim was without merit?
      “3. If the trial court’s ruling was incorrect, was the error harmless?” State v. Dennison, 219 Conn. 901, 593 A.2d 132 (1991).

       The trial court stated that it was appointing Tiernan to advise Clark of his “constitutional rights so that he can make an informed decision as to whether he wishes to testify.”

       The state’s reliance on State v. Brice, 186 Conn. 449, 452-58, 442 A.2d 906 (1982), is misplaced. In Brice, the defendant’s objection to the constancy of accusation testimony was based solely on the ground of repetitiousness, but was overruled. Id., 455-56. On appeal, the defendant additionally claimed that the constancy of accusation testimony was inadmissible because it was incumbent upon the victim to testify first that she told the witness of the sexual assault, a ground totally unrelated to that relied upon in the trial court. In the present case, the defendant explicitly stated the grounds he now relies upon and went further by pointing out that requiring Clark to invoke his self-incrimination privilege in the presence of the jury was advantageous to the state.

       See footnote 2, supra.

       The Appellate Court relied upon its holding in State v. Person, 20 Conn. App. 115, 118-23, 564 A.2d 626 (1989), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, U.S. , 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991), to support its conclusion that the defendant’s claim was without merit. State v. Dennison, 24 Conn. App. 27, 31 n.1, 585 A.2d 1240 (1991). Person is inapposite for several reasons. First, unlike the instant case, the witness in Person, after he initially invoked his fifth amendment privilege against self-incrimination regarding his use of marihuana, subsequently waived his privilege and testified that he never smoked marihuana. The Appellate Court found that “[e]ven if the possibility that the jury drew an impermissible inference from the fact of [the witness’] assertion of the privilege could be seen as being of critical weight, any prejudice to the defendant caused thereby was defused by [the witness’] subsequent testimony denying the use of marihuana.” State v. Person, supra, 122. Second, on certification, we found that the witness’ testimony in Person “was remote from the central issue of the case.” State v. Person, 215 Conn. 653, 663, 577 A.2d 1036 (1990), cert. denied, U.S. , 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991). In the instant case, if the jury had believed Clark, it is clear that the state could not have met its burden of proving the necessary element that the defendant committed the robbery with a deadly weapon. Third, in Person, the witness “was not a key witness.” State v. Person, supra, 215 Conn. 662. Here, Clark was the sole eyewitness and the only person capable of supporting the defendant’s version of the events.
      The present case must also be distinguished from those in which such episodes were “no more than minor lapses through a long trial.” United States v. Hiss, 185 F.2d 822, 832 (2d Cir. 1950). In such cases, curative instructions to the jury are usually sufficient to cure the impropriety. United States v. Amadio, 215 F.2d 605, 613-14 (7th Cir.), rev’d on other grounds, 348 U.S. 892, 75 S. Ct. 218, 99 L. Ed. 701 (1954); Weinbaum v. United States, 184 F.2d 330 (9th Cir. 1950).


author: Callahan, J.

text:
    United Technologies Corporation v. John G. Groppo, Commissioner of Revenue Services
    (14248)
    Shea, Callahan, Covello, Borden and Berdon, Js.

      Argued October 3
    decision released December 24, 1991
    Charles H. Lenore, with whom were James Sicilian and, on the brief, Thomas R. Webb, for the appellant (plaintiff).

      Jonathon L. Ensign, assistant attorney general, with whom were Richard K. Greenberg, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (defendant).
   Callahan, J.

During the years 1976 through 1982, the plaintiff, United Technologies Corporation (UTC), was a corporation organized and existing under the laws of the state of Delaware. During those years, UTC did business in Connecticut and, consequently, was subject to the Connecticut corporation business tax embodied in chapter 208 of the General Statutes, Revision of 1958, as amended (corporation business tax). The defendant was the commissioner of the department of revenue services for the state of Connecticut (commissioner) at the time of the institution of this action and the action was brought against him in his official capacity. For the income years 1976 through and including 1982, UTC was a corporation taxable both within and without Connecticut and therefore subject to the apportionment provisions of General Statutes § 12-218.

For the years 1976 through 1982, UTC timely filed its Connecticut corporation business tax returns and timely paid in full all taxes and charges that its calculations indicated were due. Thereafter, the commissioner conducted an audit of UTC’s corporation business tax returns for the years 1976 through 1982. As a result, on August 2,1986, the commissioner notified UTC that he had assessed additional corporation business taxes and interest. The disputed portion of the commissioner’s increased assessment was based on his determination that UTC was not allowed to utilize, and should not have utilized operating loss carryovers from 1979 and 1980 in computing its net income for the year 1981. The additional assessment attributable to the commissioner’s disallowance of UTC’s use of its operating loss carryovers in computing its 1981 corporation business tax increased UTC’s corporation business tax liability for that year from $231,316, which UTC had previously acknowledged and paid, to $4,254,897 plus interest.

Subsequently, UTC paid to the commissioner the amount shown as the total due on the commissioner's notice of additional assessment dated August 2,1986. At the same time, UTC filed a request pursuant to General Statutes § 12-236 for a hearing and a correction of the amount of the additional taxes and interest assessed by the commissioner. The commissioner denied UTC’s request for a hearing. Thereafter, UTC filed this appeal pursuant to General Statutes § 12-237. At the request of the parties, the single issue of law in controversy between them was later reserved by the trial court for the advice of the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023.

The single issue reserved for the advice of the court is: “For the purposes of the Connecticut corporate business tax, is a taxpayer entitled to utilize its operating loss carryovers from 1979 and 1980 in computing its net income or loss under Connecticut General Statutes § 12-219 (1) (B) (i) for 1981 and 1982?” No evidence was taken in the trial court and the parties have filed a stipulation containing the facts necessary for a resolution of the reserved question.

In order to answer the reserved question it is necessary to review briefly the relevant history of the corporation business tax. The parties stipulated that prior to the income year 1981, taxpayers subject to the corporation business tax were required to compute their business tax liability using whichever of three methods yielded the highest tax: (a) the “regular tax” imposed by General Statutes § 12-214, which was generally equal to 10 percent of the net income of the taxpayer; (b) the “alternative tax” imposed by General Statutes § 12-219 (1) (A), which was generally equal to 3/10 mills per dollar of average net book value of the taxpayer, up to a maximum tax of $100,000, plus under § 12-219 (1) (A) and General Statutes § 12-223c, the sum of $250 for each company, other than the taxpayer, included in the taxpayer’s combined return; or (c) the “minimum tax” of $250 per corporation included in a combined return pursuant to §§ 12-219 (1) (A) and 12-223c.

In January, 1981, however, the legislature amended § 12-219 to provide that in addition to the three bases of computation noted above, corporations would also be required to compute their corporation business tax liability under a fourth measure of the tax popularly known as the “fourth base.” Under the “fourth base,” corporations were required to pay a tax at a rate of 5 percent measured by 50 percent of the net income or loss of the corporation received from business transacted within Connecticut, plus 50 percent of the salaries and other compensation, apportioned to Connecticut, paid to officers of the corporation and certain shareholders. General Statutes § 12-219 (1) (B).

“The new additional tax base embodied in § 12-219 (1) (B) was enacted as a parallel provision to the Unincorporated Business Tax, General Statutes § 12-610 et seq. See 24 S. Proc., Pt. 10,1981 Sess., p. 3308; 24 H.R. Proc., Pt. 15, 1981 Sess., p. 5077. The unincorporated business tax, which has since been repealed; see Public Acts, Spec. Sess., November, 1981, No. 81-4, §§ 31, 32 (7); imposed a 5 percent tax on the taxable net income of unincorporated Connecticut businesses whose gross income exceeded $50,000. General Statutes § 12-611. While certain deductions from gross income were allowed in computing taxable net income; see General Statutes §§ 12-612,12-615; a business could not deduct amounts paid to a proprietor or partner for services rendered. See General Statutes § 12-612 (1).

“AVhile the legislature was considering passage of the unincorporated business tax, one of its main concerns was whether unincorporated businesses would incorporate in order to avoid the new tax. See 24 S. Proc., Pt. 7,1981 Sess., p. 2118. In other words, an unincorporated business, faced with the prospect of paying the new tax, might well decide to incorporate and then to ‘drain away’ its taxable income by paying it to officers and shareholders in the form of salaries, bonuses and other benefits, those amounts being deductible in computing the net income of a corporation. See General Statutes § 12-217. The new additional tax base of § 12-219 (1) (B) was added to the corporate tax structure to prevent this method of circumventing the unincorporated business tax. 24 S. Proc., Pt. 10,1981 Sess., p. 3308. Under § 12-219 (1) (B) (ii), ‘salaries and other compensation’ paid to officers and 1 percent shareholders, which were deducted in computing the net income of a corporation, were to be added back to net income in calculating the corporation’s tax base.” (Emphasis in original.) George P. Gustin Associates, Inc. v. Dubno, 203 Conn. 198, 205-206, 524 A.2d 603 (1987).

For the income years 1979 and 1980, UTC had operating losses apportioned to Connecticut in the amounts of $102,414,410 and $76,596,988, respectively. In computing its tax liability for the year 1981, UTC carried over those operating losses so as to reduce its net income to zero for use in computing the amount of corporation business tax that it owed for 1981 for purposes of both the “regular tax” imposed by § 12-214 and the “fourth base” tax imposed by § 12-219 (1) (B). Because the “regular tax” was determined simply by multiplying net income by 10 percent under that method of calculation, UTC owed no business tax for 1981. Under the “fourth base” tax of § 12-219 (1) (B), however, although its operating loss carryovers reduced UTC’s net income to zero, it was required to add back salaries and other compensation paid to officers in the amount of $8,532,635. Fifty percent of that amount at a tax rate of 5 percent yielded a tax of $213,316. That being the highest tax payable under the four bases for determining liability, UTC paid that amount of corporation business taxes for the year 1981.

The commissioner, however, contends that while UTC correctly deducted its operating loss carryovers in calculating net income and its consequent corporation business tax liability for 1981 under the “regular tax” of § 12-214, it was not allowed to use, and incorrectly used, its operating loss carryovers in determining its net income and consequent corporation business tax liability under the “fourth base” of § 12-219 (1) (B) (i). We disagree.

“Net income” under § 12-219 (1) (B) (i) was stated to be: “net income as defined in this chapter.” The sole definition of “net income” in chapter 208, concerning the imposition and payment of the corporation business tax, was contained in § 12-213, which defined “net income,” in relevant part, as “net earnings received during the income year . . . computed by subtracting from gross income the deductions allowed by the terms of section 12-217 . . . .” In turn, § 12-217 provided in relevant part that “[notwithstanding anything in this section to the contrary, (1) any excess of the deductions provided in this section for any income year commencing on or after January 1,1973, over the gross income for such year or the amount of such excess apportioned to this state under the provisions of section 12-218, shall be an operating loss of such income year and shall be deductible as an operating loss carryover in each of the five income years following such loss year, provided the portion of such operating loss which may be deducted as an operating loss carryover in any income year following such loss year shall be limited to . . . (i) any net income greater than zero of such income year following such loss year, or in the case of a company entitled to apportion its net income under the provisions of section 12-218, the amount of such net income which is apportioned to this state thereto . . . .” (Emphasis added.)

As previously noted, the commissioner has stipulated that UTC sustained the operating losses, apportionable to Connecticut, previously indicated for the years 1979 and 1980. It would appear then, that under a plain reading of the pertinent statutes, UTC was entitled to carry over those operating losses to reduce its net income to a number not less than zero, for purposes of § 12-219 (1) (B) (i), until the carryovers were exhausted, for each of the five income years following the loss years. See Murphy v. State Employees Retirement Commission, 218 Conn. 729, 735, 590 A.2d 974 (1991). The commissioner has failed to provide us with a compelling reason why that is not so or why the meaning conveyed by the plain reading of the statutes is not the proper one. See Tiernan v. Trustees of California State University & Colleges, 33 Cal. 3d 211, 218-19, 655 P.2d 317, 188 Cal. Rptr. 115 (1982); 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 46.01, p. 74.

The commissioner, moreover, has conceded that UTC properly used its operating loss carryovers to reduce its net income to zero in 1981, under the “regular tax” of § 12-214, with the result that there was no corporation business tax due the commissioner from UTC under that section. He insists, however, that the same operating loss carryovers could not and should not have been used by UTC to reduce its net income under § 12-219 (1) (B) (i). The commissioner’s positions are inconsistent.

Both §§ 12-214 and 12-219 (1) (B) (i) provide that “net income” is the “entire net income [as defined in chapter 208] received by such corporation or association from business transacted within the state during the income year . ...” As previously indicated, “net income” is defined in § 12-213 as “net earnings received during the income year . . . computed by subtracting from gross income the deductions allowed by the terms of section 12-217,” and § 12-217 allows the deduction of operating loss carryovers. If we were to conclude that corporate taxpayers were allowed to use operating loss carryovers to arrive at “net income” under § 12-214 but not allowed to use operating loss carryovers to determine “net income” under § 12-219 (1) (B) (i), we would be attributing two different meanings to the same term, “net income,” in the same statutory scheme. Such a result is contrary to both common sense and the rules of statutory construction. Board of Education v. State Board of Labor Relations, 217 Conn. 110, 116, 584 A.2d 1172 (1991); Plasticrete Block & Supply Corporation v. Commissioner, 216 Conn. 17, 27, 579 A.2d 20 (1990); Stamford Ridgeway Associates v. Board of Representatives, 214 Conn. 407, 432, 572 A.2d 951 (1990); 73 Am. Jur. 2d, Statutes § 232. Furthermore, we have found nothing in our search of the legislative history of § 12-219 (1) (B), nor has the commissioner called our attention to anything in that history, that would lead us to believe that the legislature intended that operating loss carryovers, while deductible to arrive at net income under § 12-214, were not deductible for that purpose under § 12-219 (1) (B) (i). In summary, there is no indication from any persuasive source that would induce us to conclude that the meanings or interpretations of the term “net income” in §§ 12-214 and 12-219 (1) (B) (i) were to be dissimilar or that “net income” consisted of different components depending on which of the two statutes was applied.

An interpretation of § 12-219 (1) (B) (i) that allowed for the use of operating loss carryovers in arriving at net income would also be compatible with the genesis of that section. As we stated in George P. Gustin Associates, Inc. v. Duhno, supra, 205-206, § 12-219 (1) (B) was passed in 1981 in order to foreclose attempts by unincorporated businesses to circumvent the newly enacted unincorporated business tax by incorporating and paying out all their earnings to principals in salaries and other compensation and thus avoiding payment of business taxes altogether. Obviously, the elimination of operating loss carryovers was not necessary to accomplish the purpose for which the statute was enacted. Taxing the salaries and other compensation paid corporate officers would have achieved the intended purpose. See Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn 529, 536, 494 A.2d 555 (1985).

Also if the legislature had intended such a radical departure from the established method of calculating net income, a method that the commissioner concedes is allowed under § 12-214, a statute enacted many years prior to § 12-219 (1) (B), it surely would have manifested clearly its intention to do so. “In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.” Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954); Kinney v. State, 213 Conn. 54, 66, 566 A.2d 670 (1989); Nor’easier Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 481, 542 A.2d 692 (1988); Gomeau v. Forrest, 176 Conn. 523, 527, 409 A.2d 1006 (1979). The commissioner would have us conclude, however, that it was the legislative intent, in order to enforce the new unincorporated business tax, to enact a tax statute that had the potential to raise a taxpayer’s corporation business tax liability astronomically, in this instance from zero under § 12-214 and a maximum of $100,000 under § 12-219 (1) (A), to well over $4,000,000 under § 12-219 (1) (B), without any indication in the newly enacted legislation that it was doing so. The commissioner would have us determine, moreover, that this was done without any discussion or mention of that potential tax increase in either house of the legislature during the debate on the bill embodying the statute.

Furthermore, as UTC points out in its brief, the purpose of allowing operating loss carryovers is to mitigate the rigidity of the annual accounting period; J. Mertens, Law of Federal Income Taxation (1987) § 29.01, p. 3; and “enable a taxpayer to average income and losses over a period of years to reduce the disparity between the taxation of businesses that have stable income and businesses that experience fluctuations in income.” Williamson, 9-4th T.M., Net Operating Losses—Concepts and Computations, A-l (1988). “An inequitable tax burden would result if companies were taxed during profitable periods without receiving any relief during periods of net operating losses.” D. Kieso & J. Weygandt, Intermediate Accounting (6th Ed. 1989) p. 939. We fail to understand why, if viable under the “regular tax” of § 12-214, the policy of averaging out income and losses is inapplicable to the “fourth base” tax of § 12-219 (1) (B) (i). The policy supporting the use of operating loss carryovers to reduce income is no less compelling under § 12-219 (1) (B) (i) than it is under § 12-214 and we see no justification for disparity in their treatment under the two statutes. We continue to believe, as we stated in George P. Gustin Associates, Inc. v. Dubno, supra, 200, that the first step in ascertaining the corporation business tax under § 12-219 (1) (B) was “to compute the Connecticut net income in the same manner as under the net income base of § 12-214.” (Emphasis added.)

We conclude that by the enactment of § 12-219 (1) (B) the legislature did not intend to prohibit the use of operating loss carryovers to compute net income and consequent corporation business tax liability under that section.

The answer to the reserved question is yes.

No costs shall be taxed to either party.

In this opinion the other justices concurred.

       “The Connecticut corporation business tax; General Statutes § 12-213 et seq.; is a tax upon the franchise of corporations, whether they be domestic or foreign, ‘for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity . . . .’General Statutes § 12-214; Connecticut Bank & Trust Co. v. Tax Commissioner, 178 Conn. 243, 247, 423 A.2d 883 (1979); Spector Motor Service, Inc. v. Walsh, 135 Conn. 37, 56, 61 A.2d 89 (1948); Stanley Works v. Hackett, 122 Conn. 547, 551, 190 A. 743 (1937); Underwood Typewriter Co. v. Chamberlain, 94 Conn. 47, 55, 108 A. 154 (1919), aff’d, 254 U.S. 113, 41 S. Ct. 45, 65 L. Ed. 165 (1920).” Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 415, 521 A.2d 569 (1987).

       “[General Statutes (Rev. to 1983)] Sec. 12-218. 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. . . .”

       “[General Statutes (Rev. to 1987)] Sec. 12-236. hearing by commissioner. Any taxpayer, aggrieved by the action of the commissioner or his authorized agent in fixing the amount of any tax, penalty or interest provided for by this part, may apply to the commissioner, in writing, within thirty days after the notice of such action is delivered or mailed to it, for a hearing and a correction of the amount of the tax, penalty or interest so fixed, setting forth the reasons why such hearing should be granted and the amount in which such tax, penalty or interest should be reduced. The 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, the commissioner shall notify the applicant of the time and place fixed for such hearing. After such hearing the 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. The 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 (Rev. to 1987)] Sec. 12-237. appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under the provisions of this part 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 the commissioner of revenue services 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 returned 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. Said court may grant such relief as may be equitable and, if such tax has been paid prior to the granting of such relief, may order the treasurer to pay the amount of such relief, with interest at the rate of six per cent per annum, to the aggrieved taxpayer. 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.”

       The parties have briefed only the question whether UTC was entitled to use its operating loss carryovers from 1979 and 1980 in computing its net income or loss under General Statutes § 12-219 (1) (B) (i) for the year 1981. We will therefore specifically address only that year. Our conclusions, however, as to the application of operating loss carryovers vis-a-vis § 12-219 (1) (B) (i) would also apply to the year 1982.

       “[General Statutes (Rev. to 1981)] Sec. 12-214. imposition of tax. Every mutual savings bank, savings and loan association and every company engaged in the business of carrying passengers for hire over the highways of this state in common carrier motor vehicles doing business in this state, and every other company carrying on, or having the right to carry on, business in this state, including a dissolved corporation which continues to conduct business, except (1) as to income years beginning prior to January 1,1973, insurance companies, and as to income years beginning on or after January 1,1973, insurance companies incorporated or organized under the laws of any other state or foreign government, (2) companies exempt by the federal corporation net income tax law, and any 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, but excluding companies, other than any company which so qualifies as, and so elects to be treated as, a DISC, which elect not to be subject to such tax under any provision of said Internal Revenue Code other than said Subsection (b) of said Section 992, (3) companies subject to gross earnings taxes under chapter 210, (4) companies all of whose properties in this state are operated by companies subject to such gross earnings taxes but not subject to the tax imposed by this part, (5) nonprofit cooperative ownership housing stock and nonstock corporations, when residence in such housing is restricted to members of the corporation and ownership in such corporation is restricted to occupants of such housing, (6) cooperative housing corporations, as defined for federal income tax purposes, where there is no taxable income to the corporation; (7) any organization or association of two or more persons established and operated for the exclusive purpose of promoting the success or defeat of any candidate for public office or of any political party or question or constitutional amendment to be voted upon at any state or national election or for any other political purpose and (8) individually owned companies whose gross annual revenues in the most recently completed year did not exceed one hundred million dollars and who engaged in the research, design, manufacture, sale or installation of alternative energy systems, including their parts and components, where such companies net income is directly attributable to such purposes, shall pay, annually, a tax or excise upon its franchise for the privilege of carrying on or doing business, owning or leasing property within the state in a corporate capacity or as an unincorporated association taxable as a corporation for federal income tax purposes or maintaining an office within the state, such tax to be measured by the entire net income as herein defined received by such corporation or association from business transacted within the state during the income year and to be assessed for each income year which begins on and after January 1, 1975, at the rate of ten per cent; provided, for income years beginning prior to January 1,1974, the rate applicable to insurance companies subject to tax under this section shall be two per cent. The exemption of companies included in subdivision (8) of this section shall not be allowed after July 1, 1985.”

       “[General Statutes (Rev. to 1981)] Sec. 12-219. additional tax. (1) For each income year beginning on or after January 1,1973, for which the tax calculated under subdivision (A) of this section exceeds the tax imposed by section 12-214, each company subject to the provisions of this part, except savings banks, Morris plan companies, corporations qualified under the laws of the United States as small business investment companies and state banks and trust companies incorporated under the laws of this state and production credit associations and savings and loan associations and banks incorporated under the laws of the federal government and The Connecticut Development Credit Corporation, shall pay for the privilege of carrying on or doing business within the state, in addition to the tax imposed by section 12-214, an additional tax of the amount by which the tax calculated under subdivision (A) of this section for such income year exceeds the tax imposed by section 12-214. In the case of a company other than a regulated investment company or real estate investment trust, the tax calculated under this section shall be: (A) A tax of thirty-one one hundredths of a mill per dollar for each income year of the amount derived (a) by adding (i) the average value of the issued and outstanding capital stock, including treasury stock at par or face value, fractional shares, script certificates convertible into shares of stock and amounts received on subscriptions to capital stock, computed on the balances at the beginning and end of the taxable year or period, the average value of surplus and undivided profit computed on the balances at the beginning and end of the taxable year or period, and (ii) the average value of all surplus reserves computed on the balances at the beginning and end of the taxable year or period, (b) by subtracting from the sum so calculated (i) the average value of any deficit carried on the balance sheet computed on the balances at the beginning and end of the taxable year or period, and (ii) the average value of any holdings of stock of private corporations including treasury stock shown on the balance sheet computed on the balances at the beginning and end of the taxable year or period, and (c) by apportioning the remainder so derived between this and other states under the provisions of section 12-219a, provided in no event shall the tax so calculated exceed one hundred thousand dollars or be less than fifty dollars. For each income year beginning on or after January 1, 1972, in the case of any regulated investment company or real estate investment trust, which, in arriving at net income as defined in section 12-213, is entitled to a deduction under section 12-217 for dividends paid as defined in the federal corporation income tax law, the tax calculated under this subdivision shall not exceed ten thousand dollars and shall be calculated at the rate of five-tenths of one mill per dollar of the amount derived by adding the average value of the issued and outstanding capital stock including treasury stock at par or face value, fractional shares, script certificates convertible into shares of stock and amounts received on subscriptions to capital stock, computed on the balances at the beginning and end of the taxable year or period, and the average value of surplus and undivided profits computed on the balances at the beginning and end of the taxable year or period, provided, where the remainder so derived as aforesaid is apportioned between this state and other states under the provisions of section 12-219a, the tax calculated under this subdivision for any such company shall not exceed the lesser of ten thousand dollars and the tax calculated under this sentence, multiplied, in either case, by a fraction the numerator of which is the additional tax base apportioned to this state under section 12-219a and the denominator of which is the entire additional tax base. The tax shall, in no case, be less than fifty dollars for any income year. For purposes of this subdivision, in the case of a new domestic company, the balances at the beginning of its first fiscal year or period shall be the balances immediately after its organization or immediately after it commences business operations, whichever is earlier; and in the case of a foreign company, the balances at the beginning of its first fiscal year or period in which it becomes liable for the filing of a return in this state shall be the balances as established at the beginning of the fiscal year or period for tax purposes. In the case of a domestic company dissolving or limiting its existence, the balances at the end of the fiscal year or period shall be the balances immediately prior to the final distribution of all its assets; and in the case of a foreign company filing a certificate of withdrawal, the balances at the end of the fiscal year or period shall be the balances immediately prior to the withdrawal of all of its assets. When a taxpayer has carried on or had the right to carry on business within the state for eleven months or less of the income year, the tax calculated under subdivision (A) of this section shall be reduced in proportion to the fractional part of the year during which business was carried on by such taxpayer. The tax calculated under subdivision (A) of this section shall, in no case, be less than fifty dollars for each income year. The taxpayer shall report the items set forth in subdivision (A) of this section at the amounts at which such items appear on its books; provided, when, in the opinion of the commissioner of revenue services, the books of the taxpayer do not disclose a reasonable valuation of such items, the commissioner may require any additional information which may be necessary for a reasonable determination of the tax calculated under subdivision (A) of this section and shall, on the basis of the best information available, calculate such tax and notify the taxpayer thereof.”

       It appears that the figures stipulated to are not entirely accurate. Prior to the January, 1981 legislative session, the amount paid for each corporation included in a joint return was $50. The revision of General Statutes § 12-219 enacted in that term raised that amount to $250. See General Statutes (Rev. to 1988) § 12-219. For purposes of this opinion, however, the inaccuracy is inconsequential.

       “[General Statutes (Rev. to 1981)] Sec. 12-223c. minimum tax in combined return. Each corporation included in a combined return, other than the corporation whose tax is computed and paid on the combined basis, shall pay the minimum tax of fifty dollars prescribed under section 12-219.”

       General Statutes (Rev. to 1983) § 12-219 (1) (B) provides: “additional TAX IN THE AMOUNT BY WHICH ALTERNATIVE COMPUTATIONS EXCEED TAX UNDER SECTION 12-214. MINIMUM TAX.

        [Text of section applicable to income years of corporations before January 1, 1983\

      “(1) For each income year beginning on or after January 1, 1973, for which the tax calculated under subdivision (A) of this section, or subdivision (B) of this section with respect to any company the gross income of which exceeds fifty thousand dollars in such income year, whichever is higher, exceeds the tax imposed by section 12-214, each company subject to the provisions of this part, except savings banks, Morris plan companies, corporations qualified under the laws of the United States as small business investment companies and state banks and trust companies incorporated under the laws of this state and production credit associations and savings and loan associations and banks incorporated under the laws of the federal government and The Connecticut Development Credit Corporation, shall pay for the privilege of carrying on or doing business within the state, in addition to the tax imposed by section 12-214, an additional tax of the amount by which the tax calculated under subdivision (A) or subdivision (B) of this section, whichever is higher, for such income year exceeds the tax imposed by section 12-214. In the case of a company other than a regulated investment company or real estate investment trust, the tax calculated under this section shall be ... (B) A tax to be measured by fifty per cent of (i) the net income or loss of such corporation or association but only to the extent that said income or loss is allocated and apportioned to this state, which income is the entire net income as defined in this chapter received by such corporation or association from business transacted within the state during the income year and which loss is the net loss of such corporation or association related to business transacted within the state during the income year, plus (ii) salaries and other compensation paid to the elected or appointed officers of such corporation or association, and to every shareholder owning in excess of one percent of the issued capital stock of such corporation or association, apportioned to this state by means of the apportionment fraction determined under subdivision (3) of section 12-218, at the rate of five per cent. The provisions of section 12-219a shall not apply to this subdivision. For purposes of this subdivision, the term ‘elected or appointed officer’ shall include the chairman, president, vice president, secretary, assistant secretary, treasurer, assistant treasurer, comptroller and any other person, irrespective of his title, who is charged with and performs any of the regular functions of any such officer. A director shall be considered an elected or appointed officer only if he performs duties ordinarily performed by an officer. When a taxpayer has carried on or had the right to carry on business within the state for eleven months or less of the income year, the tax calculated under subdivision (A) of this section shall be reduced in proportion to the fractional part of the year during which business was carried on by such taxpayer. The tax calculated under subdivision (A) or subdivision (B) of this section shall, in no case, be less than two hundred fifty dollars for each income year. The taxpayer shall report the items set forth in subdivision (A) of this section at the amounts at which such items appear upon its books; provided, when, in the opinion of the commissioner of revenue services, the books of the taxpayer do not disclose a reasonable valuation of such items, the commissioner may require any additional information which may be necessary for a reasonable determination of the tax calculated under subdivision (A) of this section and shall, on the basis of the best information available, calculate such tax and notify the taxpayer thereof.”

       Because the other methods of determining corporation business tax liability did not entail a tax on net income, these two methods are the only ones in issue. Under General Statutes § 12-219 (1) (A), UTC’s corporation business tax liability would have been $100,000, plus $250 for each affiliated company included in its combined return. Under General Statutes §§ 12-219 (1) (A) and 12-223c its corporation business tax liability would have been $5750.

       “[General Statutes (Rev. to 1983)] Sec. 12-213. definitions. When used in this part, unless the context otherwise requires . . . ‘net income’ means net earnings received during the income year and available for contributors of capital, whether they are creditors or stockholders, computed by subtracting from gross income the deductions allowed by the terms of section 12-217 . . . .”

       In a case addressing the exact issue found in this case, the Superior Court (Aspell, J.) concluded that a plain reading of the applicable statutes allowed the use of operating loss carryovers as a deduction under General Statutes § 12-219 (1) (B). Distributor Publications v. Commissioner of Revenue Services, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 299080 (October 14, 1987).

       The unincorporated business tax was repealed for income years commencing on or after January 1,1983. Public Acts, Spec. Sess., November, 1981, No. 4, §§ 31, 32 (7). Because the repeal of the unincorporated business tax eliminated the need for the “fourth base” of General Statutes § 12-219 (1) (B), it was also repealed at the same time. See id., § 30. Section 12-219 (1) (B) was in existence, therefore, only for the years 1981 and 1982.

       The commissioner also contends that UTC’s interpretation of General Statutes § 12-219 (1) (B) is incorrect because hypothetically it could result in the double utilization of a deduction. He argues that theoretically a loss could lower the salary component of § 12-219 (1) (B) in the loss year and also be carried over as an operating loss in ensuing years. While that may have been possible, a similar result was also theoretically possible under the unincorporated business tax. Because § 12-219 (1) (B) and the unincorporated business tax were intended to be “parallel taxes,” that argument of the commissioner is unavailing. See George P. Gustin Associates, Inc. v. Dubno, 203 Conn. 198, 206, 524 A.2d 603 (1987). Moreover, in this instance, such a double deduction did not occur and could not have occurred because the operating losses carried over by UTC were incurred in years prior to the effective date of § 12-219 (1) (B) and the utilization of the salary component.


author: Shea, J.

text:
    Alvin W. Penn v. Raphael Irizarry et al.
    (14385)
    Shea, Callahan, Glass, Covello and Borden, Js.
    Argued October 31
    decision released December 31, 1991

      Frederick D. Paoletti, with whom, were Paul C. Gusmano and, on the brief, Jerome Larracuente, legal intern, for the appellant (plaintiff).

      R. Christopher Meyer, assistant city attorney, with whom, on the brief, were JohnH. Barton, associate city attorney, and John P. Bohannon, assistant city attorney, for the appellees (defendant Thomas L. Kanasky et al.).

       After hearing the arguments in this case and recessing to deliberate, this court announced from the bench its decision affirming the judgment of the trial court, but indicated that a full opinion would follow.

   Shea, J.

The plaintiff, Alvin Penn, a candidate in a primary election to determine the Democratic party candidates for the board of aldermen in the 137th alder-manic district of the city of Bridgeport, brought this action pursuant to General Statutes § 9-329a in order to challenge the outcome of that election, in which he received two votes less than one of the declared winners, the named defendant, Raphael Irizarry. The basis for his challenge is the alleged misconduct of several election officials, who also have been made defendants, in opening the polls twenty-five minutes later than the time prescribed, in permitting one of the defendants, Maria Rivera, to enter the voting booth while it was occupied by a voter and in failing to prevent other irregularities.

The trial judge found that some misconduct of election officials had occurred, but concluded that it did not affect the outcome of the primary. The principal issue raised on appeal involves the interpretation of a provision of § 9-329a that allows a judge to “order a new primary if he finds that but for . . . any violation of [General Statutes §§ 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365], the result of such primary might have been different and he is unable to determine the result of such primary. ” (Emphasis added.) The plaintiff claims that the judge erroneously imposed upon him the burden of proving that the results of the primary “would have been different” rather than that they “might have been different.” We disagree with this interpretation of the memorandum of decision and affirm the judgment.

The parties do not challenge the facts found by the judge as set forth in the memorandum of decision. On September 11, 1991, a primary election was held in Bridgeport for selection of the two Democratic party candidates for the board of aldermen in the 137th alder-manic district. The two challengers, Samuel Baldwin and the defendant Irizarry, received 450 and 409 votes respectively, and they were declared the winners. The defeated candidates, the plaintiff and Lydia Martinez, both of whom had obtained the Democratic party endorsement, received 407 votes and 393 votes respectively. The plaintiff then brought this action contesting the two vote margin by which he had been defeated.

The principal misconduct claimed related to the activities of the defendant Rivera, a machine tender at the polls located in the Benjamin Franklin School. The judge found that on several occasions Rivera entered a polling booth while an elector was in the booth “and/or” put her hand and arm into the booth. Several Spanish speaking persons voted at this location and Rivera was aiding them in casting their votes. The judge had “no doubt that she was also showing them how to vote for the [challenge] slate as well,” but concluded that the evidence did not establish that she had induced or influenced anyone to vote “contrary to that elector’s intentions.” The judge also concluded that Rivera had “violated in several respects the instructions for election officials promulgated by the Secretary of the State, and quite possibly certain provisions of Chapter 149 of the General Statutes, which could lead to the imposition of criminal penalties.”

The judge found that the polls did not open at 6 a.m., as mandated, but approximately twenty-five minutes later. The plaintiff produced one witness who testified that she would have voted for him, but could not wait for the polls to open because of her employment, which also prevented her from returning to the polls later, since she was obliged to work overtime. If this person had been able to vote, the judge concluded, the plaintiff would have been defeated by only one vote “theoretically, but one could also surmise that other voters could not wait around either and would have voted for the two challengers.”

The only other “irregularity” specifically mentioned by the judge was that the moderator and the “other poll tender left the polling place for an hour or so, which is also prohibited, but not significant in terms of the results.” None of the misconduct relied upon persuaded the court that the results of the primary “would have been different.” Declaring that “election results should be invalidated only with ‘reluctance,’ and where the will of the electorate cannot be ascertained,” and referring to Wrinn v. Dunleavy, 186 Conn. 125, 141-42, 440 A.2d 261 (1982), the judge rendered judgment denying the plaintiff’s claims for relief.

The plaintiff claims that the standard to be used in deciding upon the need for a new primary pursuant to § 9-329a is whether the result of the contested primary “might have been different,” as the statute provides, rather than “would have been different,” as articulated by the judge. He maintains that the use of “might” in the statute signifies that, if the result could possibly have been different, another primary must be ordered. He also contends that the facts found, especially those concerning Rivera’s conduct, demonstrate the existence of such a possibility as a matter of law.

The difficulty with the plaintiff’s argument is that it wholly ignores the second condition for ordering a primary pursuant to § 9-329a, which requires that the judge be “unable to determine the result” of the contested primary. The use of the conjunctive, “and,” indicates that both conditions must be fulfilled before a new primary may be ordered. Even if the trial judge had found that the result “might have been different,” the plaintiff could not prevail unless the judge were also “unable to determine the result.”

The plaintiff’s claim with respect to the first condition, that “might” necessarily implies only a mere possibility of a different result, is undercut by the various gradations of meaning that lexicographers attribute to the word, which include “probability” as well as “possibility.” The ambiguity inherent in the use of “might” in the first condition cannot be allowed to obfuscate the relative clarity of the second condition, inability to determine the outcome of a primary election.

It is reasonably clear from the memorandum of decision that the judge concluded that he was able to determine the result of the contested primary, because he found that the various irregularities relied upon had not affected the outcome. The plaintiff has not challenged that factual finding except by pointing to the possibility of a different result. He has failed, therefore, to establish the second condition necessary for ordering a new primary.

The judgment is affirmed.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 9-329a. (Formerly Sec. 9-449). contests and complaints in connection WITH any PRIMARY. Any elector or candidate aggrieved by a ruling of an election official in connection with any primary as provided in section 9-423, 9-424,9-425 or 9-464 or who alleges that there has been a mistake in the count of the votes cast at such primary, or any candidate in such a primary who alleges that he is aggrieved by a violation of any provision of sections 9-355, 9-357 to 9-361, inclusive, 9-364, 9-364a or 9-365 in the casting of absentee ballots at such primary, may bring his complaint to any judge of the superior court for appropriate action. In any action brought pursuant to the provisions of this section, the complainant shall send a copy of the complaint by first-class mail, or deliver a copy of the complaint by hand, to the state elections enforcement commission. If such complaint is made prior to such primary such judge shall proceed expeditiously to render judgment on the complaint and shall cause notice of the hearing to be given to the secretary of the state and the state elections enforcement commission. If such complaint is made subsequent to such primary it shall be brought, within ten days after such primary, to any judge of the superior court. Such judge shall forthwith order a hearing to be held upon such complaint upon a day not more than five nor less than three days after the making of such order, and shall cause notice of not less than three days to be given to any candidate or candidates in any way directly affected by the decision upon such hearing, to such election official, to the secretary of the state, the state elections enforcement commission and to any other person or persons, whom such judge deems proper parties thereto, of the time and place of the hearing upon such complaint. Such judge shall, on the day fixed for such hearing, and without delay, proceed to hear the parties and determine the result. If, after hearing, sufficient reason is shown, such judge may order any voting machines to be unlocked or any ballot boxes to be opened and a recount of the votes cast, including absentee ballots, to be made. Such judge shall thereupon, if he finds any error in the ruling of the election official, any mistake in the count of the votes or any violation of said sections, certify the result of his finding or decision to the secretary of the state before the tenth day following the conclusion of the hearing. Such judge may (1) determine the result of such primary; (2) order a change in the existing primary schedule; or (3) order a new primary if he finds that but for the error in the ruling of the election official, any mistake in the count of the votes or any violation of said sections, the result of such primary might have been different and he is unable to determine the result of such primary. The certification by the judge of his finding or decision shall be final and conclusive upon all questions relating to errors in the ruling of such election official, to the correctness of such count, and, for the purposes of this section only, such alleged violations, and shall operate to correct any returns or certificates filed by the election officials, unless the same is appealed from as provided in section 9-325. In the event a new primary is held pursuant to such superior court order, the result of such new primary shall be final and conclusive unless a complaint is brought pursuant to this section. The clerk of the court shall forthwith transmit a copy of such findings and order to the secretary of the state.”

       In addition to Raphael Irizarry, the challenged primary victor, and the other two primary candidates, the defendants include Maria Rivera, whose activities are the principal basis for the complaint, the town clerk, the head moderator and thirty other officials involved in the primary election.

       The memorandum of decision does not specify which of the statutory provisions referred to in General Statutes § 9-329a, a violation of which may warrant a new primary pursuant to the statute, might have been violated by Maria Rivera’s activities. We agree with the defendants that the trial court’s statement that Rivera “quite possibly” violated certain statutory provisions is not equivalent to a finding that any one of the statutes referred to in § 9-329a was violated. Like the trial court, however, we find it unnecessary to resolve these issues, because, even if such a violation had occurred, a new primary could not have been ordered unless the court had been unable to determine the result of the contested primary.

       The memorandum of decision referred to the following passage from Wrinn v. Dunleavy, 186 Conn. 125, 141-42, 440 A.2d 261 (1982): “This court acknowledges and concurs in the reluctance with which courts invalidate ballots, because such action effectively disfranchises the voters involved. Where the legislature in express terms says that a ballot shall be void for some cause, the courts must undoubtedly hold it to be void; but no voter is to be disfranchised on a doubtful construction, and statutes tending to limit the exercise of the ballot should be liberally construed in his favor. Unless a ballot comes clearly within the prohibition of some statute it should be counted, if from it the wish or will of the voter can be ascertained. Dombkowski v. Messier, 164 Conn. 204, 207, 319 A.2d 373 (1972); Hurlbut v. Lemelin, 155 Conn. 68, 77, 230 A.2d 36 (1967); Scully v. Westport, 145 Conn. 648, 651-52, 145 A.2d 742 (1958); State v. Bossa, 69 Conn. 335, 341, 37 A. 977 (1897). But the right to vote is not absolute and is subject to regulation by the legislature. Mills v. Gaynor, 136 Conn. 632, 636, 73 A.2d 823 (1950). See generally General Statutes, Title 9.” (Internal quotation marks omitted.)

       Webster’s Third New International Dictionary defines “might,” when used as a verb, as follows: “past of may—used in auxiliary function to express permission, liberty, probability, possibility in the past ... or a present condition contrary to fact ... or less probability or possibility than may . . . or as a polite alternative to may • • • or to ought or should . . . .” (Emphasis in original.)