text:
    Kimberly-Clark Corporation v. Orest T. Dubno, Commissioner of Revenue Services
    (12967)
    Peters, C. J., Healey, Santaniello, Callahan and Hull, Js.
    Argued March 3
    decision released June 16, 1987

      Jonathon L. Ensign, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Christopher F. Droney, with whom was John M. Horak, for the appellee (plaintiff).
   Arthur H. Healey, J.

This is an appeal from the judgment of the trial court sustaining the plaintiff’s appeal from a determination of the defendant, the commissioner of revenue services (commissioner), upholding the assessment against the plaintiff, Kimberly-Clark Corporation, for Connecticut sales and use taxes in the amount of $137,366.66, of which $103,397.65, plus interest, is in dispute. The commissioner raises three issues on this appeal: (1) whether the trial court should have accepted the commissioner’s findings of fact unless they were clearly erroneous; (2) whether the commissioner’s declaratory ruling estopped him from making a lawful assessment pursuant to chapter 219 of the General Statutes; and (3) whether the trial court’s findings of fact are clearly erroneous in light of the evidence before it. We find no error.

The facts found by the trial court include the following: The plaintiff is a large national manufacturer of paper and related products. It has several plants throughout the country, including one located in New Milford, which employs approximately 1400 people. In 1978, the plaintiff decided to make substantial changes to its New Milford plant. The changes included installing a new production line at an estimated cost of $17 million and dismantling, expanding and modernizing an existing production line at an estimated cost of $7 million. These production lines are each over 100 yards long and are “completely integrated and automated.”

On August 31, 1978, the plaintiff wrote to the commissioner “to request a ruling, with respect to the Connecticut sales and use tax exemption on manufacturing machinery and equipment” for the two lines it intended to install. The letter stated: “[A]ll the machinery for the new production line has been designed by [the plaintiff] and cannot be purchased from a single supplier. The machinery will be fabricated by [the plaintiff]. Components for such machine fabrication will be purchased from several suppliers.” The letter then itemized the specific units of processes, systems, sections and controls of the new and the modernized production lines, and ended by requesting “that all the above described processes and machinery be ruled exempt from sales and use taxation.”

A conference on the plaintiffs request for a ruling was held on September 5,1978. Present at the conference were Nick D. Hansen, the plaintiffs vice president and tax counsel; David L. Hansell, the plaintiffs administrative manager for the expansion of products; Ralph Madden, the plaintiffs project engineer; Terence J. O’Neil, the commissioner’s division chief, legal/technical division; and Solomon J. Karam, the commissioner’s director of legal division, public relations and research. At this conference, Madden explained the design and operation of the two production lines. Most of the conference, however, was spent going over the itemized list of specific units of the two lines which had been included in the plaintiff’s request for a ruling. The commissioner’s representatives marked the specific items with an “E” indicating tax exempt, a “T” indicating taxable, and a “?” indicating that they were not sure whether the item was exempt and they needed more information to make such a determination. In the course of the discussions, the plaintiff raised the issue of whether, as a condition of sales tax exemption, the plaintiff had to have the two production lines fabricated by its Wisconsin subsidiary “Kim-Tech.” The commissioner’s representatives indicated that “that would not be necessary and [that] it would only hurt Connecticut by forcing construction out of the state.”

On September 11, 1978, O’Neil wrote to the plaintiff on behalf of the commissioner, stating that he was “returning a copy of the list [which the plaintiff had] submitted with [its] letter of August 31,1978, indicating [the commissioner’s] decision as to taxability.” “Items on the list were marked ‘E,’ ‘T,’ and '?,’ with only two comments: as to machine platforms and guards—‘E if purchased as part of a complete unit,’ and as to stock preparation equipment—‘E if purchased in conjunction with a machine.’ ”

The plaintiff supplied additional information as to the questionable items and eventually all the items on the plaintiff’s list included in its letter of August 31, 1978, were ruled upon by the commissioner. Of the thirty-seven individual units of the new production line, thirty-five were given tax exempt status, and of the thirteen individual units of the modernized production line, eleven were given tax exempt status. The commissioner allowed an exemption for machine controls on the new production line but denied an exemption for the same controls on the modernized line, on the ground that the latter would not be purchased “in conjunction with new machinery” but instead “at a later date to update existing machinery.'”

Having obtained what the plaintiff believed to be a favorable ruling of tax exemption based on its letter request of August 31,1978, the plaintiff proceeded to construct the two production lines.

Following the construction of the two production lines, the commissioner audited the plaintiff as to sales and use tax for the period December 1,1976, through April 30, 1980. As a result of the audit, the commissioner determined that the plaintiff owed taxes in the amount of $137,366.66 of which $103,397.65, plus interest, is disputed.

The items found by the defendant to be taxable (the disputed devices) were in the nature of switch gears, valves, cables, controllers, bearings, and the like, installed in the plaintiffs new and rebuilt production lines. As to the disputed devices, the trial court noted that the parties stipulated as follows:

“1. All of the disputed devices are used ‘directly in a manufacturing production process,’ as such phrase is used in [General Statutes] Sec. 12-412 (34).
“2. None of the disputed devices, by themselves, constitute^] a ‘basic machine itself,’ as such phrase is used in Sec. 12-412 (34).
“3. All of the disputed devices are ‘component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures,’ or ‘equipment or devices used or required to control, regulate or operate the machinery,’ as such terms are used in Sec. 12-412 (34).
“4. All of the disputed devices were purchased separately from any portion of the production lines that may constitute a basic machine itself, as defined in Sec. 12-412 (34).
“5. All of the disputed devices were purchased at the time of installation of the two production lines, were necessary for the initial operation of those lines and are not repair or replacement parts.
“6. The production lines each constitute a ‘basic machine itself,’ as that phrase is used in Sec. 12-412 (34).
“7. All the disputed devices were included in plaintiff’s letter of August 31,1978 in categories later designated as exempt by the [Commissioner’s] ruling.”

The plaintiff, asserting that it had been “aggrieved by the action of the commissioner ... in fixing the amount of such tax,” requested an administrative hearing, pursuant to General Statutes § 12-421. After a hearing, the deputy commissioner of revenue services rendered a decision upholding the assessment. The plaintiff, thereafter, took a timely appeal to the Superior Court pursuant to General Statutes § 12-422.

At trial, the commissioner essentially attempted to establish that the exemption for the disputed devices granted by the commissioner’s letter ruling was conditional upon the fact that the production lines were to be fabricated by an out-of-state subsidiary of the plaintiff. The commissioner argued that to have ruled any other way would have been contrary to his interpretation of § 12-412 (34) that “component parts and contrivances, such as belts, pulleys, shafts . . . and devices used ... to control . . . machinery” were exempt only if purchased from the vendor of the basic machine and at the same time. See Regs., Conn. State Agencies § 12-426-11 (A). Holding that the commissioner’s “exemption rulings are binding on him and enure to the plaintiff’s benefit on grounds of statute, estoppel and elemental fairness,” the trial court sustained the plaintiff’s appeal. The court ordered the commissioner to return to the plaintiff any payment of the assessment and interest thereon already made by the plaintiff. On January 26,1986, the commissioner appealed to the Appellate Court. On May 14,1986, this court transferred the appeal to itself. See Practice Book § 4023 (formerly § 3004A).

I

The commissioner’s first claim of error is that the trial court erred in conducting the appeal de novo. The commissioner argues that under the appropriate standard of review the trial court should have accepted his findings of facts unless they were clearly erroneous. The plaintiff argues that under General Statutes § 12-422, the trial court was empowered to conduct the appeal de novo.

The plaintiffs appeal to the trial court was taken, not under the Uniform Administrative Procedure Act, which excludes tax appeals; General Statutes § 4-186; but instead under § 12-422. Although this court has never specifically held that § 12-422 empowers a trial court to hear an appeal de novo, the language of that statute is similar to the language used in other Connecticut tax appeal statutes which have been interpreted to require a de novo review by the trial court. For example, appeals taken pursuant to General Statutes § 12-237, which concerns the Connecticut corporation business tax, and General Statutes § 12-597, which concerns the quarterly tax on gross earnings from the sale of petroleum products, are conducted de novo. See, e.g., Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 588, 522 A.2d 771 (1987); Schlumberger Technology Corporation v. Dubno, 202 Conn. 412, 421, 521 A.2d 569 (1987). Similarly, property tax appeals taken pursuant to General Statutes § 12-118 are conducted de novo. See, e.g., Xerox Corporations. Board of Tax Review, 175 Conn. 301, 303, 397 A.2d 1367 (1978); Yale University v. New Haven, 169 Conn. 454, 464, 363 A.2d 1108 (1975); O’Brien v. Board of Tax Review, 169 Conn. 129, 130-31, 362 A.2d 914 (1975); New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 239-40, 348 A.2d 641 (1974). In addition, Practice Book §§ 257 (d) and 4095 (formerly § 3088) imply that tax appeals receive a de novo review in the Superior Court. See also Greenman’s Trucking, Inc. v. Department of Revenue Services, 6 Conn. App. 261, 262 n.1, 504 A.2d 568 (1986) (parties agreed that an appeal taken pursuant to § 12-422 is an appeal de novo). We note also that in H. B. Sanson, Inc. v. Tax Commissioner, 187 Conn. 581, 586, 447 A.2d 12 (1982), which involved an appeal taken pursuant to § 12-422, this court looked to a finding made by the trial court, not the commissioner, and noted that “the trial court was not bound to limit its reasoning to that utilized by the tax commissioner . . . .”

In arguing that the trial court erred in conducting an appeal de novo, the commissioner places great emphasis on this court’s decision in Jaffe v. State Department of Health, 135 Conn. 339, 353-55, 64 A.2d 330 (1949). Jaffe, which is a pre-Uniform Administrative Procedure Act decision, does not avail the commissioner because the Uniform Administrative Procedure Act now expressly excludes tax appeals. As noted, our cases provide that a party appealing from an adverse ruling of the commissioner of revenue services is “entitled to a plenary review of its challenge of its tax assessment, and is not limited to an administrative appeal under the Uniform Administrative Procedure Act.” Texaco Refining & Marketing Co. v. Commissioner, supra; see also George P. Gustin Associates, Inc. v. Dubno, 203 Conn. 198, 202-203, 524 A.2d 603 (1987), citing Schlumberger Technology Corporation v. Dubno, supra. The trial court did not err in conducting this appeal de novo.

II

The commissioner’s second claim is that the declaratory ruling which he gave to the plaintiff did not estop him from making a lawful assessment of tax pursuant to chapter 219 of the General Statutes. The commissioner’s first argument is that, as an agent of the state, he is not subject to estoppel. His second argument is that, assuming he is subject to estoppel, the requisite elements have not been established in this case.

Citing McGowan v. Administrator, 153 Conn. 691, 694, 220 A.2d 284 (1966), the commissioner argues that he is not subject to estoppel. Specifically, he maintains that “he cannot waive the rights of the state, nor can he, by any act of his, estop the state from asserting its rights . . . .” See also Harper v. Tax Commissioner, 199 Conn. 133, 142 n.10, 506 A.2d 93 (1986). We disagree.

In McGowan v. Administrator, supra, and in State v. Metrusky, 140 Conn. 26, 30, 97 A.2d 574 (1953), a case cited in McGowan, we held that a claim for estoppel could not be based on the particular actions of the unemployment compensation administrator and the commissioner of welfare, respectively. In those cases, we recognized that the particular state agents had acted outside of their authority. McGowan and Metrusky are inapposite to this case. In this case, the commissioner had express statutory authorization to give the declaratory rulings, which are the subject of this appeal. See General Statutes § 4-176.

Although this court has not had occasion to determine specifically whether the conduct of the department of revenue services gives rise to estoppel, this court has said that, in certain limited circumstances, estoppel may be invoked against a municipality. See, e.g., Zoning Commmission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982), and cases cited therein. In Lescynski, we recognized that as a general rule, estoppel may not be invoked against a public agency in the exercise of its governmental functions. Zoning Commission v. Lescynski, supra; see also Dupuis v. Sub marine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969); State v. Stonybrook, Inc., 149 Conn. 492, 501, 181 A.2d 601, cert. denied, 371 U.S. 185, 83 S. Ct. 265, 9 L. Ed. 2d 227 (1962). Nevertheless, we noted that an exception to this general rule is made where the party claiming estoppel would be subjected to a substantial loss if the public agency were permitted to negate the acts of its agents. Zoning Commission v. Lescynski, supra; Dupuis v. Submarine Base Credit Union, Inc., supra, 354. We perceive no reason why this limited exception should not apply in an appropriate case to estop the department of revenue services, especially in view of its statutory authority to render declaratory rulings. See Connecticut Bank & Trust Co. v. Tax Commissioner, 178 Conn. 243, 423 A.2d 883 (1979) (this court dismissed the plaintiffs claim of estoppel not because the commissioner of revenue services is not subject to estoppel but because the elements of estoppel had not been established); see also George W. Davis & Sons, Inc. v. Askew, 343 So. 2d 1329, 1332 (Fla. 1977); Mountain States Advertising, Inc. v. Bureau of Revenue, 89 N.M. 331, 332, 552 P.2d 233 (1976); Advance Pipe & Supply Co. v. Wisconsin Department of Revenue, 128 Wis. 2d 431, 439-40, 383 N.W.2d 502 (1986); Department of Revenue v. Family Hospital, 105 Wis. 2d 250, 253-54, 313 N.W.2d 828 (1982).

The commissioner claims that, assuming he is subject to estoppel, the requisite elements of an estoppel are missing in this case. The commissioner’s argument as to this claim is twofold. The commissioner argues that he never ruled that the machinery in question was exempt and that if he did so rule, it was unreasonable for the plaintiff to have relied on that ruling, in light of General Statutes § 12-412 (34) and § 12-426-11 (A) of the regulations of Connecticut state agencies.

“Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., [supra]; Pet Car Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962).” Zoning Commission v. Lescynski, supra. In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency. Id.; Dupuis v. Submarine Base Credit Union, Inc., supra, 354. As noted, this exception applies where the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents. “ ‘[I]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.’ Pet Car Products, Inc. v. Barnett, [supra]; Linahan v. Linahan, 131 Conn. 307, 327, 39 A.2d 895 [1944].” Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 28-29, 392 A.2d 966 (1978).

The commissioner claims that he never ruled the disputed devices “exempt.” We disagree. At trial, the commissioner expressly stipulated that “[a]ll the disputed devices were included in the plaintiffs letter of August 31, 1978, in categories later designated as exempt by [the] Commissioner’s ruling.” The commissioner argued at trial that this exemption ruling was conditioned on a requirement that the disputed devices be purchased from the vendor of a basic machine and at the same time. The trial court found that the commissioner never made this condition “clear in [his] rulings,” and that “[i]f the [Commissioner] meant to condition his rulings of exemption . . . he had the obligation expressly to say so.” As we will discuss in part III of this opinion, this finding of the trial court was supported by the evidence. We, therefore, are unpersuaded by the commissioner’s argument that he should not be estopped from assessing the tax because he never exempted the disputed devices in the first place.

The commissioner also argues that he should not be estopped because it was unreasonable for the plaintiff to rely on his rulings. It is clear that the commissioner had the authority to issue the ruling requested by the plaintiff. General Statutes § 4-176 grants this authority and authorizes the commissioner to provide by regulation the procedure for the filing and prompt disposition of petitions seeking such rulings. According to the statute, these declaratory rulings “have the same status as agency decisions or orders in contested cases.” At trial, Karam and O’Neil testified that the departmental regulations which set forth the procedure for a taxpayer requesting a declaratory ruling, such as that issued by the commissioner to the plaintiff, had not been violated. See Regs., Conn. State Agencies § 12-2-4. Karam testified that when the commissioner gives declaratory rulings, he “intends” that such rulings “shall be relied upon” by taxpayers and “expects” that he will be bound by the ruling. The court found that, in reliance on the “favorable ruling,” the plaintiff proceeded to construct the two production lines. This finding is supported by the testimony of both Hansen and Hansell who indicated that the favorable ruling was the basis for going forward with the construction of the production lines. For example, Hansell said: “I had no recollection that it was even a consideration to use Kim-Tech when we left that meeting. You know, if there had been that consideration I would have had to [go] to the project manager and pursued that further.” Given the express statutory authority for the ruling and the testimony of Karam that the commissioner intends for taxpayers to rely on such rulings, we cannot say that the plaintiffs reliance on the ruling was unreasonable. To the contrary, the plaintiff’s conduct in writing to the commissioner requesting a letter ruling and its subsequent reliance on that ruling was completely reasonable. Rather than construct the production lines and then await a decision of the commissioner as to the taxability of its actions, the plaintiff took advantage of a provision in our statutes which allowed it to determine ahead of time the tax consequences of its proposed business decision. Despite the commissioner’s argument to the contrary, the plaintiff justifiably relied on the ruling given to it by the commissioner. The trial court did not err in concluding that the commissioner is subject to estoppel and that the requisite elements of estoppel had been established in this case.

III

The commissioner’s final claim is that “[t]he trial court’s decision is dependent upon certain factual findings not supported by the record.” As to this claim, the commissioner takes issue with the following findings: “(1) the ‘commissioner’s people’ never made clear their position that machine component parts purchased separately from basic machines were not exempt; (2) [the] plaintiff never orally at the conference changed the basic fact that ‘all the machinery would be fabricated by the plaintiff and components for such machinery would be purchased from several suppliers’; and (3) ‘[n]or did [the] commissioner make his rulings of exemptions conditioned on different facts.’ ” The commissioner also takes issue with the court’s finding that when the question of whether it was absolutely necessary to use a subsidiary was raised by the plaintiff, the “commissioner’s people said that it would not be necessary and it would only hurt Connecticut by forcing construction out of the state.”

The commissioner argues that “[i]n fact, the testimony by three of the four witnesses is uncontroverted that the [commissioner’s] personnel told the plaintiff’s personnel that machine component parts purchased separately from basic machines were not tax exempt.” The commissioner also points out that Hansen stated at the meeting that “the plaintiff had a subsidiary, Kim-Tech, which could fabricate the machines out-of-state and sell them to the plaintiff,” and that the commissioner’s representatives stated that the sale of completed machines to the plaintiff by its subsidiary, Kim-Tech, would be tax exempt. Based on this testimony, the commissioner argues that the court could reach “no conclusion other than that the [commissioner’s] rulings were conditioned upon facts represented to its personnel which differed from what [the] plaintiff initially proposed to do . . . .” The commissioner argues that “[therefore, the decision of the trial court should be set aside . . . .” We disagree.

“ ‘On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book [§ 4061]. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.’ (Emphasis added.) Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986). In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. Id., 243; Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986). On appeal, “we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” Gorra Realty, Inc. v. Jetmore, supra. “ ‘A factual finding may be rejected by this court only if it is “clearly erroneous.” ’ Kaplan v. Kaplan, [186 Conn. 387, 392, 441 A.2d 629 (1982)].” Cookson v. Cookson, supra.

The court’s findings and conclusions are supported by the evidence presented before it. Initially, we note that both Karam and O’Neil admitted during their testimony that in all of the written communication between the parties there was absolutely no mention that the exemption was conditioned on the fact that a subsidiary of the plaintiff would fabricate the production lines. Our review of those exhibits confirms that no such condition is included therein. At trial, Hanson testified that after the conference he was under the impression that the plaintiff received a favorable ruling from the commissioner which in his mind did not include the use of Kim-Tech or any other subsidiary. In fact, he recollected that during the conference very little time was spent discussing the possibility of using an out-of-state subsidiary to fabricate the machine. As to the commissioner’s response to the possibility of using an out-of-state subsidiary, it was Hanson’s impression that it was not required. In fact, “one of the things [Hanson was] trying to come away from the meeting with, was a decision as to whether or not [the plaintiff] had to go through [with that] formalitfy].” Hanson testified that they were never told orally that the exemption was conditional on the use of an out-of-state subsidiary and that the first time that he was aware of that condition was after the audit.

The testimony of Hansell also adds support for the trial court’s findings. Hansell testified that in his mind the rulings were not “in any way conditioned upon Kimberly-Clark using Kim-Tech or any other subsidiary to do the [fabrication].” When he left the meeting, he had “no recollection that it was even a consideration to use Kim-Tech . . . .” Hansell also testified that he believed that it was Karam who made the statement that it was not the intention of the Connecticut tax rules to force construction out of state.

The trial court’s rulings also find some support in the testimony of Karam. Karam testified that although the principal reason for the meeting of September 4th, 1978, was to discuss the role of the subsidiary, they only discussed that fact for a few minutes. In response to the court’s statement that it was difficult to believe that the declaratory ruling was based on an oral condition, Karam stated that “we weren’t articulate enough, and that’s our problem.” Karam recognized that “perhaps [they] should have repeated the statement to [the plaintiff], but [that they] didn’t.”

Although both O’Neil and Karam testified that it was their “understanding that they [had] agreed that the [machine] would be fabricated out of state by a subsidiary,” the trial court was not required to credit that testimony. From our review of the entire record, we conclude that the trial court’s findings are amply supported by the evidence and are not “clearly erroneous,” and its conclusions based on those findings are “legally and logically correct.” See Pandolphe’s Auto Parts, Inc. v. Manchester, supra. The trial court was entitled to find, inter alia, that the plaintiff never orally changed the basic fact that all the machinery would be fabricated by the plaintiff and component parts for such machinery would be purchased from several suppliers, that the commissioner did not make his ruling conditioned on different facts, and that the commissioner’s representatives said that it would not be necessary to use an out-of-state subsidiary and it would only hurt Connecticut by forcing construction out of state.

There is no error.

In this opinion the other justices concurred.

       Chapter 219 of the General Statutes is entitled “Sales and Use Tax” and provides, inter alia, for the imposition of the sales and use tax as well as the exemptions from that tax.

       As an alternative ground upon which the judgment may be affirmed, the plaintiff presents the following issue: “Must an item of machinery constitute a machine in and of itself or be purchased in conjunction with a machine in order to be exempt from the Connecticut sales and use tax pursuant to Section 12-412 (34) of the Connecticut General Statutes?” Because of our disposition of the commissioner’s claims on appeal, we need not reach the merits of this alternative basis for affirming the judgment.

       General Statutes § 12-412 (34) provides: “EXEMPTIONS. Taxes imposed by this chapter shall not apply to the gross receipts from the sale of and the storage, use or other consumption in this state with respect to the following items:
      “(34) Machinery used in manufacturing or agricultural production. Sales of and the storage, use or other consumption of machinery used directly in a manufacturing or agricultural production process. The word ‘machinery’ as used in this subsection means the basic machine itself, including all of its component parts and contrivances, such as belts, pulleys, shafts, moving parts, operating structures and all equipment or devices used or required to control, regulate or operate the machinery, but excluding office equipment or data processing equipment other than numerically controlled machinery used directly in the manufacturing process.”

       General Statutes § 12-422 provides: “appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under section 12-418,12-421 or 12-425 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 are denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.”

       The regulations of Connecticut state agencies, § 12-426-11 (A) provided in part: “Contrivances, such as belts, pulleys, shafts and operating structures accessory to such basic machine and equipment and devices used to control, regulate or operate it and spare parts for its repair will be subject to the 7% tax rate when purchased separately. The 2V2% tax rate is applicable only and if any of these accessory parts are purchased as a package with the basic machine.”
      In 1980 the commissioner repealed § 12-426-11 (A) and replaced that regulation with § 12-426-llb.

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

       At oral argument, the commissioner pointed to Exhibit G, which lists the specific items constituting the disputed devices, and argued that none of the items listed in Exhibit G is listed in the ruling request, Exhibit A, submitted by the plaintiff. The commissioner argued that the ruling was based on Exhibit A, not Exhibit G. We disagree. The commissioner expressly stipulated that “[t]he Disputed Devices are listed on Exhibit G .... All of the Disputed Devices were included in Plaintiffs letter of August 31, 1978 ... in categories later designated as exempt from tax by [the commissioner] in the rulings issued by [the commissioner] at the September 4, 1978 meeting . . . .” Given this stipulation, we fail to see how the commissioner can now say that the items listed in Exhibit G are somehow not included in the exemption ruling which he gave to the plaintiff.

       General Statutes § 4-176 provides: “declaratory RULINGS. Each agency may, in its discretion, issue declaratory rulings as to the applicability of any statutory provision or of any regulation or order of the agency, and each agency shall provide by regulation for the filing and prompt disposition of petitions seeking such rulings. If the agency issues an adverse ruling, the remedy for an aggrieved person shall be an action for declaratory judgment under section 4-175 unless the agency conducted a hearing pursuant to sections 4-177 and 4-178 for the purpose of finding facts as a basis for such ruling, in which case the remedy for an aggrieved person shall be an appeal pursuant to section 4-183. If the agency fails to exercise its discretion to issue such a ruling, such failure shall be deemed a sufficient request by the plaintiff for the purposes of section 4-175. Rulings disposing of petitions have the same status as agency decisions or orders in contested cases.”

       The regulations of Connecticut state agencies, § 12-2-4 then provided:
      “PETITION FOR DECLARATORY RULING
      “The Tax Department will accept a petition for declaratory ruling as to the applicability of any statute or regulation administered by the Tax Department in the following form:
      “(a) A petition stating the factual background of the issue must be in writing and include or have attached thereto a certificate indicating the manner in which and the date on which it is being filed with the Tax Department at the main office at 92 Farmington Avenue, Hartford, Connecticut 06115.
      “(b) The petition shall be signed by the petitioner and shall include his address for purposes of reply.
      “(c) A petitioner shall serve a copy of the petition on any party who he has reason to believe may not otherwise have knowledge thereof and may fairly have an interest therein. The petition or certificate shall indicate such service therein.
      “(d) The petition shall state clearly the question of applicability upon which it seeks a ruling.
      “(e) The petition shall state the position of the petitioner with respect to the question of applicability.
      “(f) The petition may include an argument in support of the position of the petitioner with such legal citation as may be appropriate.”

       It is the practice of the Internal Revenue Service to issue similar rulings stating the tax consequences of a completed or contemplated transaction. “A ‘ruling’ is a written statement issued to a taxpayer or his authorized representative by the National Office which interprets and applies the tax laws to a specific set of facts.” 26 C.P.R. § 601.201 (a) (2). Although the Internal Revenue Service has the authority to revoke or modify a ruling after it has been given, revocations or modifications are rarely applied retroactively to the taxpayer to whom the ruling was originally issued. The regulations provide: “Except in rare or unusual circumstances, the revocation or modification of a ruling will not be applied retroactively with respect to the taxpayer to whom the ruling was originally issued or to a taxpayer whose tax liability was directly involved in such ruling if (i) there has been no misstatement or omission of material facts, (ii) the facts subsequently developed are not materially different from the facts on which the ruling was based, (iii) there has been no change in the applicable law, (iv) the ruling was originally issued with respect to a prospective or proposed transaction, and (v) the taxpayer directly involved in the ruling acted in good faith in reliance upon the ruling and the retroactive revocation would be to his detriment,” 26 C.F.R. § 601.201 (l) (5). All of these considerations are applicable in this case.
      We also note that “[i]t is well settled that the doctrine of equitable estoppel, in proper circumstances, and with appropriate caution, may be invoked against the United States in cases involving internal revenue taxation. Joseph Eichelberger & Co. v. Commissioner, [88 F.2d 874 (5th Cir. 1937)]; Perkins et al. v. Thomas, Collector, [86 F.2d 954 (5th Cir. 1936)], affirmed 301 U.S. 655, 57 S. Ct. 911, 81 L. Ed. 1324 [1937].” Simmons v. United States, 308 F.2d 938, 945 (1962). It has also been said that “[although estoppel is rarely a proper defense against the government, there are instances where it would be unconscionable to allow the government to reverse an earlier position. Schuster v. Commissioner of Internal Revenue, 312 F.2d 311, 317 (9th Cir. 1962).” United States v. Lucienne D’Hotelle, 558 F.2d 37, 43 (1st Cir. 1977).

       At trial, Hansell testified as follows: “My recollection was that the bulk of the meeting centered around the discussion of what the items were that were on that descriptive document. Ralph [Madden] did a lot of testimony as to the functions of the various pieces of machinery that make up the paper machines. I do recall there was some brief discussion about this concept of parts versus whole machines and, as I recall, when that subject came up Nick [Hansen] introduced this concept of using Kim-Tech, you know, if we had to, to get around that issue. And I fairly clearly recall, at that time, I think that it was [Solomon] Karam that made the statement that it was not the intention of the Connecticut tax rules to force construction work to take place outside the State of Connecticut, which using Kim-Tech would clearly do.”

       On the record before us, the trial court was also entitled to find that the commissioner did not make clear in his ruling that if the plaintiff purchased the machine component parts separately from the basic machine, they would not be exempt.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. Harvey Fritz
    (12636)
    Peters, C. J., Healey, Shea, Callahan and Moraghan, Js.

      Argued April 8
    decision released June 23, 1987

      Shelley R. Sadin, with whom was Jacob D. Zeldes, for the appellant (defendant).

      Robert J. Murphy, special deputy assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Julia DiCocco Dewey and Thomas V. O’Keefe, Jr., assistant state’s attorneys, for the appellee (state).
   Callahan, J.

The dispositive issue in this appeal is whether the trial court erred in restricting the scope of questioning during the voir dire examination of the potential-jurors. By substitute information, the defendant, Harvey Fritz, a licensed physician specializing in internal medicine and cardiology, was charged with prescribing a controlled substance to another person in a manner not authorized by chapter 417 of the General Statutes, in violation of General Statutes §§ 21a-277 (a) and 21a-252 (a) (formerly chapter 359, General Statutes §§ 19-480 [a] and 19-460 [a]). Following a trial to a jury, the defendant was found guilty, and was subsequently fined $3000 and sentenced to a term of imprisonment of four years, execution of such sentence suspended after nine months. He was placed on probation for a period of five years, and ordered not to carry on any activities that require a license to dispense narcotics or to practice medicine or surgery. After the court rendered judgment, the defendant took this appeal.

The relevant facts are as follows: In 1968, the defendant began treating Barbara Gorman, the patient for whom he was accused of illegally prescribing medication. Gorman was under the care and treatment of the defendant for approximately thirteen years, and during that time had numerous medical problems. As a result of a 1975 injury to her back, Gorman developed chronic back pain. She underwent a series of unsuccessful operations in an attempt to alleviate her pain and finally, in 1977, the defendant began prescribing Demerol, a narcotic, to ease the pain emanating from her back. The Demerol was prescribed in liquid form and taken by intramuscular injection. From 1978 to 1981, the dosage and frequency of Demerol prescribed for Gorman increased steadily. She was also consuming a number of other medications for various medical conditions.

In the spring of 1981, the defendant referred Gorman to a pain specialist, Arthur Taub. Because of the potential for addiction and overdose associated with Demerol, Taub discontinued Demerol, and prescribed Methadone. Taub also contacted the defendant and requested that he discontinue prescribing Demerol for Gorman. For the next few months, Gorman remained on medication prescribed by Taub, without any prescriptions for Demerol from the defendant. On July 10 and 16,1981, apparently after Gorman had run out of her Methadone prescription, the defendant prescribed two grams of Demerol for her. On both dates, Taub was available to prescribe Methadone but, for whatever reason, was not contacted. Gorman died in an automobile accident on July 17, 1981. Autopsy results indicated that the amount of Demerol in her blood was ten times the normal therapeutic level.

On appeal, the defendant claims that the trial court erred in: (1) restricting the voir dire examination of the prospective jurors; (2) admitting irrelevant testimony concerning the circumstances of Gorman’s death and the investigation of the accident in which she was killed; (3) shifting to the defendant the burden of proof on the issue of whether the defendant had acted in good faith and in the course of his professional practice; and (4) denying the defendant’s motion to dismiss the information which he based on collateral estoppel. We find error on the defendant’s first claim and on part of his second claim, and therefore remand the case for a new trial.

I

During the voir dire, defense counsel sought to question the first and second members of the venire to determine whether they believed that the testimony of a police officer or a law enforcement person is entitled to more weight or credibility than that of any other person simply because of their status. The court refused to allow this line of questioning. The trial court, noting the defense counsel’s exceptions, stated that if similar questions were asked of future venire members his rulings would be the same. The defendant claims that the trial court violated his constitutional right to conduct a voir dire examination of prospective jurors by restricting his questioning on this issue. We agree.

Section 19 of article first of the Connecticut constitution, as amended by article IV, states in pertinent part: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law.” In addition, General Statutes § 54-82f provides the right to a voir dire examination of each prospective juror in a criminal action. It is firmly established therefore that “[t]he right to question each juror individually by counsel shall be inviolate.” See, e.g., State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987); Lamb v. Burns, 202 Conn. 158, 162, 520 A.2d 523 (1987); State v. Hill, 196 Conn. 667, 671-72, 495 A.2d 699 (1985). The extent of the voir dire examination rests largely within the discretion of the trial court, and the exercise of such discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted. State v. Dolphin, supra; State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985); State v. Haskins, 188 Conn. 432, 447, 450 A.2d 828 (1982); State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976); cf. State v. Smith, 10 Conn. App. 624, 638, 525 A.2d 116 (1987). Nevertheless, in exercising its discretion, the court should grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges. State v. Rogers, supra; State v. Haskins, supra, 446. Therefore, “ ‘if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.’ ” State v. Rogers, supra, 318.

We have recently had the opportunity to address the issue of whether the restriction of questions to prospective jurors concerning their possible predisposition to give additional weight to a police officer’s testimony solely because of his official status constitutes reversible error. See State v. Dolphin, supra; State v. Rogers, supra; State v. Hill, supra. In State v. Dolphin, supra, 515, we held that “[t]he police officers’ testimony was crucial in establishing the state’s case . . . the defendant had the right to attempt to ascertain whether a juror might be more, or less, inclined to credit their testimony solely because of their official status.” See also State v. Rogers, supra; State v. Hill, supra.

The state argues that the holdings in Hill and Rogers do not stand for the proposition that a trial court’s refusal to allow a particular question during voir dire is reversible error per se. Rather, the state contends that we must assess the claim of error in the context of the entire voir dire to determine whether the defendant was afforded a sufficient opportunity to expose juror bias or prejudice in general. It argues that an examination of the entire voir dire may reveal extensive questioning concerning juror bias and partiality and whether potential jurors were acquainted with or related to law enforcement officials, and that such questioning would provide a sufficient basis for this court to determine that the means employed to test juror impartiality created a reasonable assurance that prejudice would have been discovered if present. We agree that Hill, Rogers, and more recently, Dolphin, do not establish a per se error standard for the disallowance of a particular question during voir dire. Although we agree with the state’s contention that we must examine the defendant’s claim of error in the context of the entire voir dire, we are not persuaded that the erroneous ruling was harmless.

We stated in State v. Hill, supra, 672-73, that “[w]hen important testimony is anticipated from certain witnesses whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination should be permitted. . . . It was of vital importance to the defendant that if any such inclination existed it be brought to light. [A defendant is] entitled to explore this area of possible disqualification prior to the impaneling of the jury. Only then could he intelligently challenge for cause or exercise his right of peremptory challenge. State v. Higgs, [143 Conn. 138, 144, 120 A.2d 152 (1956)].” (Emphasis added; citations omitted.) From this perspective, we conclude that general questions during voir dire concerning a juror’s bias and impartiality and his relationships to law enforcement officials, would not necessarily expose whether a juror has a tendency to believe or disbelieve or give more weight to such officials because they are persons of authority, or enable the defendant to exercise intelligently his right of peremptory challenge.

The state also contends that unlike the situation in State v. Hill, supra, the state’s case-in-chief in this matter rested primarily on the testimony of physicians, members of the defendant’s profession, not that of law enforcement officials. Consequently, the state argues that any questions of prospective jurors on voir dire concerning any possible predisposition to believe law enforcement officials because of their status were of minimal importance, and their exclusion should not result in reversal. We disagree.

In this case, six of the state’s fourteen witnesses were either police officers or persons working for the state in an investigative capacity, and the majority of them provided testimony crucial to the state’s case against the defendant. Under General Statutes § 21a-252 (a), “[a] physician, in good faith and in the course of his professional practice only, may prescribe, administer and dispense controlled substances . . . for demonstrable physical or mental disorders but not for drug dependence . . . .” In order to show the defendant’s lack of good faith in prescribing the controlled substance Demerol, the state presented the testimony of Richard Moore, Jr., a drug agent for the state of Connecticut, who had investigated the defendant’s practices. He testified that he had obtained, from local pharmacies in Meriden, prescriptions the defendant had written for Gorman during the time period in question. He stated that, in his years of experience as a drug agent, he had never seen prescriptions of Demerol written with such frequency. This testimony was countered by the defendant’s expert witness, Forest Tennant, a pain specialist, who testified that when treating someone with chronic back pain, there is no set “upper limit” with respect to the amount or frequency of the drug being prescribed. Moore also testified that he had seized Gorman’s medical file from the defendant’s office, pursuant to a search warrant. He stated that the defendant had failed to make any notations in Gorman’s medical file concerning either her office visits during 1980 and 1981, or the prescriptions written for her during that period. Although the defendant did not introduce any extrinsic evidence to impeach this testimony, he did testify that he had, in fact, made such notations in Gorman’s file and that his office records must have been altered. The state then introduced rebuttal testimony from Thomas O’Grady, an investigator for the Connecticut state department of health services, who testified that the file in question had been in his custody and had not been altered. The testimony of these state’s witnesses, if believed, would support an inference that the defendant had not acted in good faith or in the proper course of his professional practice in prescribing Demerol to Gorman.

The state also presented the testimony of Richard Pinder, a physician and the director of the toxicology department of the office of chief medical examiner for the state of Connecticut. Pinder testified that the blood tests he had conducted on Gorman’s body revealed the presence of Demerol and two antidepressant drugs, and that the amount of Demerol in her system was ten times the normal therapeutic level. In addition, he opined that because of the high level of the drug, Gorman must have been exhibiting toxic effects from the Demerol. Thereafter, a former Meriden police officer testified that while he was on the police force in Meriden he had observed Gorman walking through a parking lot appearing dazed and confused, thereby bolstering the testimony that Gorman was exhibiting toxic effects from the drug. Although this testimony was contradicted by testimony from the defendant, and from the defendant’s expert witness, it would have supported an inference of guilt if believed by the jury.

We conclude, therefore, that testimony from state officials and police officers was crucial in establishing the state’s case, and therefore, the defendant had the right to inquire as to whether a juror might be more, or less, inclined to credit their testimony solely because of their official status. As we have previously held, “[n]othing could be plainer than that a predisposition to attach greater or less credence to a witness’ testimony simply because of that witness’ position as an officer [or because of official status] is inconsistent with the defendant’s constitutional and statutory right to an impartial jury. The denial of such a fundamental right cannot be countenanced.” State v. Hill, supra, 673; see also State v. Dolphin, supra, 516; State v. Rogers, supra, 319. The trial court’s refusal in this case to allow questioning concerning any predisposition was therefore an abuse of discretion. Accordingly, we find error and order a new trial.

Although our holding is dispositive of this appeal, we will consider certain of the defendant’s other claims of error which are likely to arise upon retrial.

During the course of voir dire, defense counsel sought to question a prospective juror concerning burden of proof, reasonable doubt, and the presumption of innocence. The trial court disallowed these questions and the defendant excepted. The defendant claims that it was an abuse of discretion for the trial court to disallow all questions during voir dire pertaining to these subjects. He argues that such inquiries could expose the inability of prospective jurors to perform the functions required of a juror in a criminal case and hence were crucial. We disagree.

A juror’s knowledge or ignorance concerning questions of law are generally not a proper subject of inquiry on voir dire. Such questions are concerned with matters which the juror is bound to take from the court. State v. Dahlgren, 200 Conn. 586, 601, 512 A.2d 906 (1986); State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973); Duffy v. Carroll, 137 Conn. 51, 56-57, 75 A.2d 33 (1950). The presumption of innocence and the state’s burden of proof beyond a reasonable doubt are legal principles which the trial court, in this case, discussed in detail in both its preliminary and final charge to the jury. Since it is presumed that an impartial juror will follow the trial court’s instructions; Francis v. Franklin, 471 U.S. 307, 324-25 n.9, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); Connecticut v. Johnson, 460 U.S. 73, 85 n.14, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Dahlgren, supra, 603; State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); we cannot conclude that the trial court abused its discretion in disallowing these questions. Cf. United States v. Price, 577 F.2d 1356, 1366 (9th Cir. 1978); United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977); United States v. Wooton, 518 F.2d 943, 946 (3d Cir. 1975); People v. Swain, 43 Colo. App. 343, 346-47, 607 P.2d 396 (1979); McCulligh v. State, 169 Ga. App. 717, 721-22, 314 S.E.2d 724 (1984).

II

The defendant also contends that the trial court erred in admitting irrelevant and prejudicial testimony concerning the circumstances of Gorman’s death, and the investigation of the accident in which she was killed. Specifically, the trial court admitted into evidence, over the defendant’s objection, details of the automobile accident in which she was killed, certain items found at the accident scene, and the results of the autopsy performed on Gorman’s body, which indicated the presence of high dosages of controlled substances in her bloodstream.

At the outset, we note that trial courts have broad discretion in determining the relevancy of evidence. State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); State v. Sharpe, 195 Conn. 651, 658-59, 491 A.2d 345 (1985); State v. Piskorski, 177 Conn. 677, 695, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion. State v. Boucino, supra; State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985). We have consistently held that “evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, [supra, 659]; State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978).” State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985). “ ‘No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.’ ” State v. Sharpe, supra, 659.

The evidence concerning the results of the autopsy performed on Gorman, introduced through the testimony of the state’s witness, Richard Pinder, a forensic toxicologist, logically tended to support the state’s contention with respect to the amount of Demerol that was being prescribed to Gorman by the defendant. The defendant argues that the probative value of this testimony was questionable in light of testimony from Kurt Stenn, the physician who performed the autopsy, that he did not know whether some or all of the blood in her body was transfused blood, and that such blood could have come from a donor with controlled substances in his or her system. This testimony, however, does not affect the relevance of Pinder’s testimony; it goes rather to the weight the jury will accord the state’s evidence. See Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 404, 461 A.2d 422 (1983); Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978).

The defendant also argues that it was error to allow into evidence two prescription bottles and syringes found at the scene of the accident in which Gorman was killed. This evidence was cumulative of prior testimony concerning the type of drug prescribed to Gorman and the method of taking it, and it tended to corroborate testimony that the defendant had prescribed Demerol to Gorman, after Taub had requested him to discontinue prescribing the medication, a fact which, if believed, tended to support the state’s theory that the defendant had not acted in good faith and in the proper course of his professional practice.

We cannot conclude, therefore, that the trial court abused its discretion in ruling that the testimony concerning the results of the autopsy, and the prescription bottles, were relevant and that their probative value outweighed any possible prejudicial effect. State v. Sharpe, supra, 660; see State v. Paoletto, 181 Conn. 172, 184-86, 434 A.2d 954 (1980).

The introduction of testimony concerning the circumstances of Gorman’s accident, however, presents a different situation. Officer Niezgorski of the Meriden police department testified that Gorman had died in a one car accident, which occurred on a sunny day and on a relatively straight road. In addition, he testified that there were no skidmarks at the accident scene, and that a mechanic’s inspection of her car revealed no mechanical defects. Even if we were to agree that this testimony was relevant to the state’s case against the defendant, we must conclude that its prejudicial effect far outweighs its probative value.

In State v. Mastropetre, supra, 517, we indicated that “evidence which is inconsequential tending to distract attention from the real issue should be excluded . . . as should evidence which would be of greater prejudicial effect than probative value.” (Citations omitted.) See also State v. Johnson, 190 Conn. 541, 551, 461 A.2d 981 (1983). Applying this reasoning, we conclude that the testimony of Niezgorski concerning details of the accident should have been excluded. His testimony would almost certainly have distracted the jury from the real issue in the case, that is whether the defendant’s care and treatment of Gorman was in violation of General Statutes §§ 21a-277 (a) and 21a-252 (a), and would have shifted the focus, to the defendant’s prejudice, to whether he was responsible for her death. While Gorman’s absence from the trial required some explanation, it was sufficient for the jury to know that Gorman had died in an automobile accident, information which had already come to the jury’s attention through the testimony of Gorman’s sister. We conclude, therefore, that the trial court abused its discretion in admitting the details of Gorman’s accident.

Ill

The defendant next claims that the trial court erred in denying his motion to dismiss the information on the ground that the issues in the criminal case had been fully and finally litigated in the defendant’s favor in a proceeding before the commissioner of consumer protection, and, therefore, the state was collaterally estopped from prosecuting him. We find no error in the trial court’s denial of the defendant’s motion.

Initially, we must note that the state claims that, because the defendant characterized his motion to dismiss as one based on double jeopardy rather than on res judicata or collateral estoppel, he must be deemed to have waived his right to raise either of these defenses on appeal. See Practice Book §§ 808,810. We disagree. Although the defendant did not specifically use the term collateral estoppel in his motion, or during argument on his motion, it is clear from a review of the transcript that this was the essence of his argument, i.e., the effect of the administrative proceeding on the state’s ability to go forward with a criminal proceeding against the defendant. Furthermore, the United States Supreme Court has indicated that the principle of collateral estoppel is embodied in the double jeopardy clause of the fifth amendment, which applies to the states through the fourteenth amendment. Ashe v. Swensen, 397 U.S. 436, 445-47, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). Because we conclude that this issue was raised sufficiently at trial, we will review the merits of the defendant’s claim.

The commissioner of the department of consumer protection charged the defendant with improperly and illegally prescribing Demerol and Dolophine for Barbara Gorman. Adjudicative hearings were held during which the department had a full opportunity to put on evidence and present testimony in support of its complaint. The hearing officer concluded that the agency had failed to prove the allegations in its complaint and recommended that the defendant’s license not be suspended or revoked. Pursuant to this report, the commissioner dismissed the agency’s complaint. The defendant claims that because the charges against him were fully litigated to a final conclusion in these administrative proceedings, the state is collaterally estopped from prosecuting him for violating General Statutes §§ 21a-277 (a) and 21a-252 (a). We disagree.

“Collateral estoppel is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice.” Ashe v. Swensen, supra, 443. It is “ ‘that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction.’ State v. Wilson, 180 Conn. 481, 485, 429 A.2d 931 (1980).” P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 161, 454 A.2d 1258 (1983); Slattery v. Maykut, 176 Conn. 147, 157, 405 A.2d 76 (1978); 1 Restatement (Second), Judgments § 27 (1982). In principle, the doctrine of collateral estoppel applies to criminal as well as civil proceedings. See State v. Aillon, 189 Conn. 416, 424, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); State v. Wilson, supra, 486; see also State v. Ellis, 197 Conn. 436, 464-65, 497 A.2d 974 (1985). We have held that the doctrine may also apply to determinations of administrative agencies under certain circumstances. See Corey v. Avco-Lycoming Division, 163 Conn. 309, 318, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); see also United States v. Utah Construction & Mining Co., 384 U.S. 394, 421, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1965); 2 Am. Jur. 2d, Administrative Law § 496. This is the first opportunity, however, that we have had to consider whether collateral estoppel operates to bar relitigation in a state criminal proceeding of those issues previously decided by a state administrative agency. See annot., 30 A.L.R. 4th § 856.

The state does not dispute that the issues raised before the administrative agency were substantially the same as those raised in the criminal prosecution of the defendant. Rather, it argues that the doctrine of collateral estoppel is not applicable to the criminal proceedings against the defendant because there is no privity between the state’s attorney’s office within the division of criminal justice and the department of consumer protection. The defendant argues, however, that, since the commissioner of consumer protection and the state’s attorney are both agents of the state and are both charged with protecting the consumer, privity exists for purposes of collateral estoppel. We are unpersuaded by the defendant’s argument.

“Privity is not established . . . from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same facts.” 46 Am. Jur. 2d, Judgments § 532. While the concept of privity is difficult to define precisely, it has been held that “a key consideration for its existence is the sharing of the same legal right by the parties allegedly in privity.” BTC Leasing, Inc. v. Martin, 685 S.W.2d 191, 198 (Ky. App. 1984). This is to ensure that the interests of the party against whom collateral estoppel is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding. See BTC Leasing, Inc. v. Martin, supra; 46 Am. Jur. 2d, Judgments § 532; see also Sunshine Coal Co. v. Adkins, 310 U.S. 381, 402, 60 S. Ct. 907, 84 L. Ed. 1263 (1940); Safir v. Gibson, 432 F.2d 137, 142 (2d Cir. 1970); Wade's Dairy, Inc. v. Fairfield, 181 Conn. 556, 561, 436 A.2d 24 (1980).

Applying this analysis to the present case compels the conclusion that the department of consumer protection is not in privity with the division of criminal justice. The department of consumer protection is granted the authority to investigate, inter alia, licensing complaints; General Statutes § 21a-8 (4), (6) and (8); which was obviously its function in this instance, and, if such complaints have validity, to take proper action against the practitioner, which may consist of, inter alia, the revocation or suspension of a license, the imposition of a probationary period or reprimand. General Statutes § 21a-7 (7). The state’s attorneys within Connecticut, however, “exercise all powers and duties with respect to the investigation and prosecution of criminal matters.” General Statutes § 51-277 (a); see also General Statutes § 51-286a. The purpose of the administrative proceedings, therefore, is to police licensing requirements within the state, while the state’s attorney’s interest in the criminal proceeding is in having guilt or innocence determined under the applicable criminal law and in seeing that proper punishment is meted out in the event that the criminal law has been violated. The “state’s attorney represents the broader public interest in the effective administration of criminal justice. State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).” State v. Ellis, supra, 470; see People v. Demery, 104 Cal. App. 3d 548, 163 Cal. Rptr. 814 (1980); Keating v. Department of Natural Resources, 140 Ga. App. 796, 232 S.E.2d 84 (1976), aff’d, 238 Ga. 605, 234 S.E.2d 519 (1977); Younge v. Board of Registration, 451 S.W.2d 346 (Mo. 1969), cert. denied, 397 U.S. 922, 90 S. Ct. 910, 25 L. Ed. 2d 102 (1970); People v. Morgan, 111 App. Div. 2d 771, 490 N.Y.S.2d 30 (1985); People v. Lalka, 113 Misc. 2d 474, 449 N.Y.S.2d 579 (1982); see generally annot., 30 A.L.R.4th § 856; cf. State v. Cox, 352 So. 2d 638 (La. 1977); People v. Klein, 76 App. Div. 2d 913, 429 N.Y.S.2d 39 (1980); but see People v. Sims, 32 Cal. 3d 468, 651 P.2d 321, 186 Cal. Rptr. 77 (1982); District of Columbia v. Fisher, 258 A.2d 456 (D.C. App. 1969). We conclude, therefore, that the state’s interest in having guilt or innocence determined is not adequately served in an administrative proceeding because, as the state points out in its brief, the state’s attorney has no control over the timing, substance or litigation of charges lodged against the defendant by the department of consumer protection. Therefore, since no privity exists, the state is not collaterally estopped from prosecuting the defendant. Accordingly, the trial court did not err in denying the defendant’s motion to dismiss.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). penalty FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING. (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”

       “[General Statutes] Sec. 21a-252. (Formerly Sec. 19-460). prescription AND DISPENSING OF CONTROLLED SUBSTANCES BY CERTAIN PRACTITIONERS. SURRENDER OF UNUSED SUBSTANCES BY PATIENTS, (a) A physician, in good faith and in the course of his professional practice only, may prescribe, administer and dispense controlled substances or he may cause the same to be administered by a physician assistant, nurse or intern under his direction and supervision, for demonstrable physical or mental disorders but not for drug dependence except in accordance with state and federal laws and regulations adopted thereunder.”

       Section 19 of article first of the Connecticut constitution, as amended by article IV provides: “Section 19 of article first of the constitution is amended to read as follows: The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”

       “[General Statutes] Sec. 54-82f. VOIR DIRE EXAMINATION. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”

       The state also claims in its brief that the defendant’s claim is not reviewable because he failed to provide the transcript of the entire voir dire. On November 26,1986, we granted the defendant’s motion to supplement the record by filing an additional portion of the transcript and, therefore, the entire transcript of the voir dire is part of the record on appeal.

       The fact that not all of the witnesses in question were police officers, but that some were investigative officers for the state, does not affect our discussion of this claim. In State v. Hill, 196 Conn. 667, 495 A.2d 699 (1985), the focus of our review was on whether important testimony was anticipated from witnesses -with “official” or “semi-official” status. Certainly, investigative officers employed by the state would fit into either of these categories.

       The state also introduced testimony from a document analyst for the United States postal service, and a former document examiner for the state of Connecticut police crime laboratory. These witnesses identified the defendant’s signatures on the prescriptions for Gorman. In addition, another Meriden police officer testified with respect to his investigation at the scene of the car accident in which Gorman was killed.

       We note that the testimony of Pinder with respect to the presence of two other drugs, Tofranil and Norpramine, in Gorman’s blood was not entirely relevant to the state’s case; however, the admission of such testimony was not prejudicial to the defendant. The defendant had testified earlier in the trial that Gorman had had various medical problems, and had been taking various medications. Therefore, Pinder’s testimony was merely cumulative.

       “[Practice Book] Sec. 808. —matters to be raised by motion
      “Any defense, objection or request capable of determination without a trial of the general issue may be raised only by a pretrial motion made in conformity with this chapter.”
      “Sec. 810. -FAILURE TO RAISE DEFENSE, OBJECTION OR REQUEST
      “Failure by a party, at or within the time provided by these rules, to raise defenses or objections or to make requests that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver, provided, however, that lack of jurisdiction over the offense charged or failure of the indictment or information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings.”

       The defendant’s reliance on Sunshine Coal Co. v. Adkins, 310 U.S. 381, 60 S. Ct. 907, 84 L. Ed. 1263 (1940), for the proposition that privity exists between the state’s attorney and the department of consumer protection is misplaced. Although the court indicated that privity might exist between officers of the same government, it pointed out that “the crucial point is whether or not in the earlier litigation the representative of the United States had authority to represent its interests in a final adjudication of the controversy.” Id., 403. Such was not the case here.

       “[General Statutes] Sec. 21a-8. (Formerly Sec. 19-171g). department OF CONSUMER PROTECTION’S POWERS AND DUTIES RE BOARDS AND COMMISSIONS. The department of consumer protection shall have the following powers and duties, with regard to each board or commission transferred to the department of consumer protection under section 21a-6:
      * ** *
      “(4) The department shall conduct any necessary review, inspection or investigation regarding qualifications of applicants for licenses or certificates, possible violations of statutes or regulations, accreditation of schools, disciplinary matters and the establishment of regulatory policy, and make recommendations to the appropriate board or commission. In connection with any investigation, the commissioner of consumer protection or the commissioner’s authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. If any person refuses to appear, to testify or to produce any book, record or document when so ordered, a judge of the superior court may make such order as may be appropriate to aid in the enforcement of this section.
      * * *
      “(6) The department shall conduct any necessary investigation and followup in connection with complaints regarding persons subject to regulation or licensing by the board or commission.
      * * *
      “(8) The department shall receive complaints concerning the work and practices of persons licensed, registered or certified by such boards or commissions and shall receive complaints concerning unauthorized work and practice by persons not licensed, registered or certified by such boards or commissions. The department shall distribute monthly a list of all complaints received within the previous month to the chairperson of the appropriate board or commission. The department shall screen all complaints and dismiss any in which the allegation, if substantiated, would not constitute a violation of any statute or regulation. The department shall distribute notice of all such dismissals monthly to the chairperson of the appropriate board or commission. The department shall investigate any complaint in which the allegation, if substantiated, would constitute a violation of a statute or regulation under its jurisdiction. In conducting the investigation, the commissioner may seek the assistance of a member of the appropriate board, an employee of any state agency with expertise in the area, or if no such member or employee is available, a person from outside state service licensed to perform the work involved in the complaint. Board or commission members involved in an investigation shall not participate in disciplinary proceedings resulting from such investigation. The commissioner of consumer protection may dismiss a complaint following an investigation if he determines that such complaint lacks probable cause. Notice of such dismissal shall be given only after approval by the chairperson of the appropriate board or commission. The commissioner may authorize a settlement if the settlement is approved by the complainant, the practitioner, and the board or commission. The commissioner may bring a complaint before the appropriate board or commission for a formal hearing if he determines that there is probable cause to believe that the offense alleged in the complaint has been committed and that the practitioner named in the complaint was responsible. All dispositions and final decisions by the department of consumer protection after an investigation into a complaint has begun shall be forwarded to the chairperson of the appropriate board or commission on a monthly basis.”

       “[General Statutes] Sec. 21a-7. (Formerly Sec. 19-171f). powers and DUTIES OF BOARDS AND COMMISSIONS WITHIN DEPARTMENT OF CONSUMER protection. Each board or commission transferred to the department of consumer protection under section 21a-6 shall have the following powers and duties:
      * ** *
      “(7) In addition to any other action permitted under the general statutes, each board or commission may upon a finding of any cause specified in subsection (c) of section 21a-9; Revoke or suspend a license, registration or certificate; issue a letter reprimand to a practitioner and send a copy of such letter to a complainant or to a state or local official; place a practitioner on probationary status and require the practitioner to report regularly to the board or commission on the matter which is the basis for probation, limit his practice to areas prescribed by the board or commission or, to continue or renew his education until he has attained a satisfactory level of competence in any area which is the basis for probation. Each board or commission may discontinue, suspend or rescind any action taken under this subsection.”

       “[General Statutes] Sec. 51-277. powers and duties of division. (a) The division shall exercise all powers and duties with respect to the investigation and prosecution of criminal matters conferred upon or required of it by this chapter, or conferred upon or required of state’s attorneys, assistant state’s attorneys and deputy assistant state’s attorneys of the superior court by the common and statutory law of this state.”