Opinion

J.G. Myers v. Com. of PA

Court
Commonwealth Court of Pennsylvania
Filed
Aug 6, 2021
Status
Published
On the bench
Fizzano Cannon. McCullough
Cited by
0 cases
Authority
More cited than 33.1%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John G. Myers, :

Petitioner :

:

v. :

:

Commonwealth of Pennsylvania, : No. 274 F.R. 2016

Respondent : Submitted: June 9, 2021

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION

BY JUDGE FIZZANO CANNON FILED: August 6, 2021

Before this Court en banc are exceptions filed by Respondent, the

Commonwealth of Pennsylvania, and Intervenor, BJ’s Wholesale Club, Inc. (BJ’s)

to this Court’s panel decision, which reversed a decision of the Board of Finance and

Revenue (Board) and concluded that Petitioner, John G. Myers (Taxpayer), was

entitled to a partial refund of sales tax he paid for items he purchased at BJ’s.1 Upon

review, we overrule the exceptions and reaffirm the panel’s decision.

1

The Commonwealth and BJ’s file their exceptions pursuant to Pennsylvania Rule of

Appellate Procedure 1571(i), which states:

I. Background

The facts, as stipulated by the parties, are set forth in full in the panel’s

opinion. See generally Myers v. Commonwealth of Pa. (Pa. Cmwlth., Nos. 274 &

275 F.R. 2016, filed May 11, 2020) (Myers I). We state them here only as necessary

to our review.

Taxpayer sought a partial refund from the Department of Revenue

(Department), Board of Appeals (BOA) of sales tax he paid on items he purchased

on three occasions at BJ’s in Downingtown, Pennsylvania. Stipulations of Fact

(Stip.) ¶ 5, Exs. P & Q. In each of the first two instances at issue in this appeal, his

purchase receipt reflected that he bought a single item designated as taxable2 and

that he received a discount from the purchase price by applying a coupon. Neither

the item nor the nature of the discount coupon was identified on the receipt in either

instance. In the third instance, Taxpayer purchased six items, all of which were

taxable, and received discounts by using five coupons. Once again, the receipt did

not describe either the items or the coupons but did designate all the items as taxable.

Any party may file exceptions to an initial determination by

the court under this rule within 30 days after the entry of the order

to which exception is taken. Such timely exceptions shall have the

effect, for the purposes of Rule 1701(b)(3) (authority of lower

court or agency after appeal) of an order expressly granting

reconsideration of the determination previously entered by the court.

Issues not raised on exceptions are waived and cannot be raised on

appeal.

Pa. R.A.P. 1571(i).

2

In its brief, BJ’s does not dispute that the “T” and “N” designations on the receipts

designate taxable and nontaxable items, respectively, but argues that these designations were

insufficient to link the coupons to specific items purchased, as opposed to other kinds of discounts

such as total purchase discounts. Br. of Intervenor at 16-17. As discussed infra at 8-9, we reject

the argument that such differentiations in coupon types affect entitlement to reductions in sales

tax.

2

The BOA concluded Taxpayer was not entitled to a refund of the sales

tax paid on the discounts he received, because he failed to sustain his burden of

proving that his receipts described both the items purchased and the coupons applied,

as required by the applicable Department regulation, 61 Pa. Code § 33.2(b)(2). The

Board subsequently denied Taxpayer’s petition for review of the BOA’s decision.

See Board Decision and Orders dated 3/30/16 at 4; Stip. Exs. N & O.

Taxpayer then petitioned for review in this Court.3 In a panel decision,

this Court concluded Taxpayer was entitled to the requested sales tax refunds on the

purchases shown on the three receipts at issue. Myers I, slip op. at 27. The panel

reasoned that the items were sufficiently described to sustain Taxpayer’s burden of

showing a new purchase price was established for purposes of the regulation. Id.,

slip op. at 21-27. The receipts indicated that the items were taxable, the application

of coupons resulted in reduction of the purchase prices, and Taxpayer was charged

sales tax on the undiscounted prices. Id., slip op. at 22-24. Because Taxpayer bought

only one item in two instances, both the sales tax and the discount coupon shown on

each of those two receipts could only have related to that item. Id., slip op. at 23.

Therefore, the panel concluded that no further description was needed on either

receipt to demonstrate Taxpayer’s entitlement to the sales tax refund he sought. Id.

Similarly, because the third receipt showed that all six purchased items were taxable,

the panel concluded that the coupon discounts must have related to taxable items.

3

The panel’s decision in these consolidated cases also related to a sales tax refund request

by a second taxpayer, Cecelia A. Reihl (Reihl). Unlike Taxpayer’s receipts, Reihl’s purchase

receipt from BJ’s showed purchases of both taxable and nontaxable items, and it was not possible

to determine which of the items were discounted through the use of coupons. Myers v.

Commonwealth of Pa. (Pa. Cmwlth., Nos. 274 & 275 F.R. 2016, filed May 11, 2020) (Myers I),

slip op. at 24-25. Accordingly, the panel concluded Reihl had failed to sustain her burden of

proving entitlement to a sales tax refund. Id., slip op. at 25. No exceptions were filed to that

determination.

3

Id., slip op. at 24. Again, no further description on the receipt was necessary to

demonstrate Taxpayer’s entitlement to a sales tax refund. Id.

The Commonwealth filed exceptions from the panel decision to this

Court en banc, as did BJ’s, which was granted intervenor status.

II. Issues for Argument

The overarching issue raised in the exceptions is whether Taxpayer’s

evidence is sufficient, as a matter of law, to comply with 61 Pa. Code § 33.2. The

Commonwealth and BJ’s contend the panel erred in allowing Taxpayer’s requested

refunds. They assert that Taxpayer’s receipts failed to demonstrate that the coupon

discounts were among the categories authorized by the regulation. They also argue

Taxpayer failed to link the coupon discounts to specific items, as opposed to

transactions. Therefore, they insist Taxpayer failed to show that applying his coupons

established new purchase prices entitling him to refunds of excessive sales tax.4

III. Applicable Tax Regulation5 – 61 Pa. Code § 33.2

In relevant part, 61 Pa. Code § 33.2(b) excludes “from the taxable

portion of purchase price, if separately stated and identified”:

4

We note that this case arose in conjunction with a separate class action against BJ’s in the

Philadelphia Court of Common Pleas that has been stayed during the pendency of these

consolidated matters. See Myers v. BJ’s Wholesale Club, Inc. (Phila., No. 546 August Term 2013,

filed June 25, 2014) (order issuing stay).

5

Section 201(g)(2) of the Tax Reform Code of 1971 (Tax Reform Code), Act of March 4,

1971, P.L. 6, as amended, 72 P.S. §§ 7101-10004, provides:

4

(2) Discounts. Amounts representing

on-the-spot cash discounts, employe

discounts, volume discounts, store discounts

such as “buy one, get one free,” wholesaler’s

or trade discounts, rebates and store or

manufacturer’s coupons shall establish a new

purchase price if both the item and the

coupon are described on the invoice or cash

register tape. An amount representing a

discount allowed for prompt payment of bills

which is dependent upon an event occurring

after the completion of the sale may not be

deducted in computing the tax. A sale is

completed when there is a transfer of

ownership of the property or services to the

purchaser.

61 Pa. Code § 33.2(b)(2) (emphasis added).

EXAMPLES:

(i) “A” purchases two hamburgers from “R”

restaurant with a “buy one, get one free” coupon. The price

of one hamburger is $1. “R” rings up $2 on the cash

register. “R” enters a credit in the cash register for the

amount of $1 resulting in an adjusted price of $1. The

(2) There shall be deducted from the purchase price the

value of any tangible personal property actually taken in trade or

exchange in lieu of the whole or any part of the purchase price. For

the purpose of this clause, the amount allowed by reason of tangible

personal property actually taken in trade or exchange shall be

considered the value of such property.

72 P.S. § 7201(g)(2). Before the panel, the parties disputed whether a coupon is “tangible personal

property” under Section 201(g)(2). This Court concluded that a coupon conveys an intangible

right and therefore is not addressed in Section 201(g) of the Tax Reform Code. Myers I, slip op.

at 18-19 (citing DeGiorgis v. 3G’s Contracting, Inc., 62 A.3d 1024, 1027 (Pa. Super. 2013); In re

Macfarlane’s Est., 459 A.2d 1289, 1291 (Pa. Super. 1983)). Moreover, the panel concluded that

Section 201(g) of the Tax Reform Code relates to discounts arising after consummation of a sale,

while the regulation applies to discounts arising before consummation of a sale. Myers I, slip op.

at 13. Accordingly, the panel rejected Taxpayer’s contention that the Department’s regulation at

61 Pa. Code § 33.2 was inconsistent with the Tax Reform Code. Myers I, slip op. at 13. No issue

regarding the nature of a coupon as tangible or intangible is raised in the exceptions before the

Court en banc, nor is there any assertion of invalidity regarding 61 Pa. Code § 33.2. Thus, the

interplay of the statute and the regulation is not at issue here.

5

acceptance of the coupon by “R” establishes a new

purchase price of $1 which is subject to 6¢ tax.

(ii) “A” purchases 15 grocery items from “B”

grocery. All of the items are exempt from tax except a

bottle of soft drink. The price of the soft drink is $1. “A”

gives “B” a manufacturer’s coupon having a face value of

50¢ for the soft drink. “B” totals the 15 items on the cash

register including $1 for the bottle of soft drink. None of

the items are described or identified on the cash register

tape. “B” reduces the total sale by $1—double the amount

of the coupon. The coupon is not described or identified

on the register tape. Therefore, the acceptance of the

coupon by “B” does not establish a new purchase price.

The $1 purchase price of the soft drink is subject to 6¢ tax.

The redemption of the coupon represents a refund which

does not affect the purchase price of the soft drink.

(iii) “A” purchases a coffee pot from “C”

department store. The price of the coffee pot is $30. “A”

pays sales tax upon the purchase of the coffee pot in the

amount of $1.80. The sale includes a $10 manufacturer’s

mail-in-rebate form. “A” completes the form, mails it to

the manufacturer and receives a $10 check from the

manufacturer. The receipt of the rebate check by “A” does

not establish a new purchase price of the coffee pot. “C”

properly collected sales tax in the amount of $1.80.

(iv) “A” purchases and accepts delivery of a load

of lumber from “D” lumber company. “D” sends “A” a

billing invoice which states “lumber—$1,000, sales tax—

$60.” The invoice also states “if invoice paid within 30

days, customer entitled to a 1% discount.” “A” pays the

invoice within 5 days. “A” is entitled to a discount of 1%

of $1,000, but is required to pay the sales tax in the amount

of $60 as a new purchase price has not been established.

Id., Examples (i)-(iv).

6

IV. Discussion

In their exceptions,6 the Commonwealth and BJ’s posit that not every

kind of coupon discount is excludable from sales tax. The Department’s regulation

excludes from sales tax “[a]mounts representing on-the-spot cash discounts,

employe[e] discounts, volume discounts, store discounts such as ‘buy one, get one

free,’ wholesaler’s or trade discounts, rebates and store or manufacturer’s coupons .

. . if both the item and the coupon are described on the invoice or cash register tape.”

61 Pa. Code § 33.2. Thus, relevant here, to qualify for a sales tax exclusion, a

coupon discount must be (1) an “on-the-spot” cash discount or a store discount such

as “buy one, get one free,” a rebate,7 or a store or manufacturer’s coupon, and (2)

“described” on the receipt, along with the discounted item. See id. The

Commonwealth and BJ’s argue that some types of coupons are not included in the

regulation, such as percentage reductions of entire purchases, specific dollar-amount

discounts from a minimum purchase amount, discounts for shopping on a specific

6

In tax appeals from the Board, this Court functions as a trial court,

and exceptions filed to its final order have the effect of an order

granting reconsideration. [Consol. Rail Corp.] v. Commonwealth

[of Pa.], 679 A.2d 303, 304 (Pa. Cmwlth. 1996). This Court reviews

de novo the determinations of the Board. Kelleher v. Commonwealth

[of Pa.], 704 A.2d 729, 731 (Pa. Cmwlth. 1997). “Stipulations of

fact are binding upon both the parties and the Court.” Id. “However,

this Court may draw its own legal conclusions.” Id. “Our scope of

review in tax appeals is . . . limited to the construction, interpretation

and application of a State tax statute to a given set of facts.” United

Serv[]s. Auto[.] Ass[’]n v. Commonwealth [of Pa.], . . . 618 A.2d

1155, 1156 (Pa. Cmwlth. 1992) (quoting Escofil v. Commonwealth

[of Pa.], . . . 406 A.2d 850, 852 (Pa. 1979)).

Am. Elec. Power Serv. Corp. v. Commonwealth of Pa., 184 A.3d 1031, 1034 n.7 (Pa. Cmwlth.

2018).

7

Presumably this is a reference to instant rebates, as the examples following the regulation

indicate that a mail-in rebate received after the purchase transaction would not establish a new

purchase price and therefore would not qualify for a sales tax refund. See 61 Pa. Code § 33.2,

Example (iii).

7

day, and other discounts not limited to specific items purchased. These types of

discounts, although they may be given pursuant to coupons, cannot be linked to

specific discounted items. Therefore, the Commonwealth and BJ’s reason that such

discounts would not qualify for sales tax refunds. It follows that the regulation

requires a taxpayer to present a receipt that shows both the specific items purchased

and a connection between those specific items and the discount given. Of necessity,

a taxpayer cannot qualify for a sales tax refund merely by presenting a receipt that

shows only that a taxable item was purchased and a coupon discount was given,

because there is no way to discern from such a receipt that the discount fell into one

of the categories specified in the regulation.

We disagree. Percentage reductions of entire purchases, specific dollar-

amount discounts from a minimum purchase amount, discounts for shopping on a

specific day, and other such discounts may not be linked to specific items purchased,

but they still constitute “on-the-spot” cash discounts. Therefore, they qualify for

exclusion from sales tax under the plain language of the regulation. The

Commonwealth and BJ’s have failed to point to any type of coupon that would not

be subject to a sales tax exclusion. Accordingly, we reject their argument that every

receipt, without exception, must specify the item for which a discount is given in

order to qualify for a sales tax exclusion.

We likewise reject the argument proffered by the Commonwealth and

BJ’s that a reduction does not reduce the purchase price if it is not linked to a specific

item. To the contrary, every discount, by definition, reduces the purchase price,

whether of a single item or a group of items. A coupon, moreover, cannot be

redeemed for cash; its only use is to reduce the purchaser’s cost. For example, if a

retailer offers double value on manufacturers’ coupons and the double coupon value

8

exceeds the price of the item, the purchaser does not get cash back for the difference;

the coupon can only reduce the purchase price. As so applied, the coupon

necessarily establishes a new purchase price. That the calculation of the new

purchase price of any specific item may be hampered where multiple items are

purchased does not defeat this principle.

Contrary to the contention of the Commonwealth and BJ’s, the

language of the regulation does not impose a blanket requirement that every discount

must correspond to a specific item. Rather, the issue is the sufficiency of a receipt

in any given case to demonstrate that the discount is one that qualifies for a sales tax

exclusion. That is a case-by-case determination for each purchase for which a

taxpayer seeks a sales tax refund. As the panel correctly reasoned, the only qualifier

under the regulation is that the discount must be on an item that is taxable. See Myers

I, slip op. at 21-22. Otherwise, there is no sales tax to reduce. Thus, where a taxpayer

has purchased multiple items, some of which were taxable and some of which were

nontaxable, the receipt may be insufficient to demonstrate entitlement to a sales tax

refund if the Department cannot discern to which item(s) the coupon discount(s)

applied. See 61 Pa. Code § 33.2, Example (ii).

Here, however, Taxpayer in each of the first two transactions at issue

purchased a single taxable item and presented a discount coupon that reduced the

purchase price of that item. In that situation, there can be no dispute that the coupon

reduced the purchase price of the item and established a new purchase price.

Taxpayer is therefore entitled to a refund on the excessive sales tax associated with

the amount of the discount.

The outcome is the same regarding the third receipt, where multiple

items were purchased, because all of the items were taxable. In such a case, the

9

amount of the excessive sales tax paid is the same regardless of which item or items

were discounted by the application of coupons.

Therefore, the receipt is sufficient under the specific facts of this case

to demonstrate Taxpayer’s entitlement to the refunds he seeks.

V. Conclusion

For the reasons discussed above, this Court concludes that the panel

correctly determined Taxpayer is entitled to the sales tax refunds he seeks for the

three specific transactions at issue. Accordingly, we overrule the exceptions of the

Commonwealth and BJ’s and reaffirm the panel’s decision.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John G. Myers, :

Petitioner :

:

v. :

:

Commonwealth of Pennsylvania, : No. 274 F.R. 2016

Respondent :

ORDER

AND NOW, this 6th day of August, 2021, the exceptions of Respondent,

the Commonwealth of Pennsylvania (Commonwealth), and Intervenor, BJ’s

Wholesale Club, Inc., are OVERRULED. Judgment is entered in favor of Petitioner

John G. Myers (Myers) and against the Commonwealth in the amount of 38 cents as

to the claims filed by Myers at No. 274 F.R. 2016.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John G. Myers, :

Petitioner :

: No. 274 F.R. 2016

v. :

: Submitted: June 9, 2021

Commonwealth of Pennsylvania, :

Respondent :

:

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: August 6, 2021

Respectfully, I must dissent from the Majority’s conclusion that John

G. Myers (Taxpayer) demonstrated that he was overcharged sales tax by BJ’s

Wholesale Club, Inc. (BJ’s) in violation of 61 Pa. Code §33.2. The Majority

concludes that there is no requirement within the regulation at 61 Pa. Code

§33.2(b)(2) that a vendor’s register receipt indicate precisely to which taxable item

the coupon relates in order to charge and remit sales tax on less than the original,

non-discounted price of the item. In the Majority’s view, it is enough if the register

receipt lists the items and the discounts taken on all taxable items without linking

the items to their associated coupons. In so doing, the Majority has, in effect, taken

away the Department of Revenue’s (Department) ability to perform its enforcement

function, which is to examine a vendor’s records to ensure that the vendor collected

the proper amount of sales tax required for each item sold. See Sections 271(a) and

272 of the Tax Reform Code of 19711 (Tax Code), 72 P.S. §§7271(a), 7272.

Under Pennsylvania’s sales tax law, vendors, such as BJ’s, are required

to assess and collect from purchasers a sales tax of 6% of the “purchase price” of

each taxable item sold. The Tax Code sets forth a comprehensive sales tax scheme,

including the method by which vendors are required to calculate taxable sales and

remit the sales tax to the Department. Sections 202-206, 215-227 of the Tax Code,

72 P.S. §§7202-7206, 7215-7227.

Section 202(a) of the Tax Code provides: “There is hereby imposed

upon each separate sale at retail of tangible personal property or service . . . within

this Commonwealth a tax of six percent of the purchase price . . . which tax shall,

. . . be collected by the vendor . . . from the purchaser, and shall be paid over to the

Commonwealth[2] as herein provided.” 72 P.S. §7202(a) (emphasis added).

A “sale at retail” is defined in the Code, relevantly, as “[a]ny transfer,

for a consideration, of the ownership, custody or possession of tangible personal

property . . . whether such transfer be absolute or conditional and by whatsoever

means the same shall have been effected.” Section 201(k) of the Tax Code, 72 P.S.

§7201(k). The measure of the retail sales tax—that is, the base against which the

rate is applied—is generally the consideration paid for goods or services sold, i.e.,

the “purchase price” the consumer pays for a product or item.

1

Act of March 4, 1971, P.L. 6, as amended, 72 P.S. §§7201-10004.

2

Vendors are required to remit the taxes collected to the Department, together with a tax

return, which is due either monthly, quarterly, or semi-annually, depending on the amount of the

vendor’s tax liability. Section 217 of the Tax Code, 72 P.S. §7217.

PAM -2

For a vendor to establish that it lawfully imposed and collected tax on

an amount less than the listed price, (after a coupon is applied), it must demonstrate

to the Department that a “new purchase price” was established for the item. If a

new lower purchase price is established, then the vendor may remit the 6% sales tax

based on the new, lower, after-discount purchase price of the item. Stated

differently, the vendor owes the state sales tax on the full price of an item unless the

vendor can establish a “new purchase price” of the item.

A vendor may establish a “new purchase price” of an item if an

“exclusion” from purchase price is “separately stated and identified.” 61 Pa. Code

§33.2(b)(2). A store or manufacturer’s coupon can establish a new purchase price

“if both the item and the coupon are described on the invoice or cash register tape.”

Id. Such a showing provides a sufficient explanation to the Department as to why

the vendor is remitting a sales tax based on an amount that is less than the listed

purchase price. The Department’s regulation, 61 Pa. Code §33.2(b)(2), provides as

follows:

(b) Exclusions. Amounts which are excluded from the

taxable portion of purchase price, if separately stated

and identified, include:

***

(2) Discounts. Amounts representing on-the-spot cash

discounts, employe discounts, volume discounts, store

discounts such as “buy one, get one free,” wholesaler’s or

trade discounts, rebates and store or manufacturer’s

coupons shall establish a new purchase price if both the

item and the coupon are described on the invoice or

cash register tape. . . . (Emphasis added.)

PAM -3

The Department has published the following guidance for retailers

applying 61 Pa. Code § 33.2(b)(2):

Q: How do I calculate sales tax on an item a customer

purchased with a coupon?

If you have the capability to link coupons to specific

items on receipts, you may charge sales tax on the

lower, after-coupon price. However, if your system

does not link a coupon to a specific item, state law

requires you to charge sales tax on the full purchase

price of the item. For more information, review Chapter

33 of the Pennsylvania Code.[3] (Emphasis added.)

The description requirement ensures the proper administration of the

sales tax law and prevents evasion of the sales tax. It also protects the vendor by

requiring it to show through adequate records why the taxable price of the item was

reduced. By requiring the vendor to document a taxable item and a coupon on an

invoice or receipt, the vendor is able to establish that it collected the appropriate

amount of sales tax.

Nothing in the Tax Code or the regulations require a vendor to have the

capability to link a coupon to a specific item. According to BJ’s, it does not have

that capability. Therefore, it is not required to assess, collect, or remit to the

Department an amount less than 6% sales tax of the original undiscounted purchase

price of the taxable items listed on Taxpayer’s receipts.

3

Pennsylvania Department of Revenue Tax Update, “Sales & Use Tax: 12 Common

Questions & Filing Errors,” No. 137, August/September 2008,

https://www.revenue.pa.gov/GeneralTaxInformation/News%20and%20Statistics/TaxUpdate/Do

cuments/taxupdate137.pdf (last visited 8/05/21).

PAM -4

The plain text of the Tax Code and regulations refutes the Majority’s

conclusion that the regulation only requires a description that allows one to discern

that a taxable item was purchased, and a coupon was accepted that applied to a

taxable item purchased.

Sales tax is assessed upon “each separate sale at retail,” which means

the cash register receipt must make a clear reference to each discounted item and the

coupon related to it. Support for this conclusion is found in our Supreme Court’s

decision in Commonwealth v. Morris Half Hour Laundromat, 277 A.2d 148 (Pa.

1971). There, a vendor owned and operated a chain of self-service coin operated

laundromats. One location contained ten 8-pound washers with a 25¢ coin slot and

two 16-pound washers with a 50¢ coin slot. Another location had sixteen single-

load washers with a 35¢ coin slot, four double-load washers with a 50¢ coin slot,

and two 30-pound washers with a 75¢ coin slot. Id. at 149. The vendor remitted to

the Commonwealth 4% or 5% of the gross receipts derived from the washing

machines at each of his laundromats. The Supreme Court held that this was clearly

wrong because the Tax Code “imposes a tax upon each ‘separate’ sale at retail, and

[the vendor’s] computations necessarily assume[d], contrary to fact, that the entire

gross receipts from one laundromat reflect[ed] a single sale at retail.” Id. at 151.

To determine if the vendor remitted the correct amount of sales tax, the

Department’s auditor began with the basic assumption that each single use of one

washing machine constituted one separate sale at retail. Id. at 151-52. The auditor

had to look at each sale separately because, based on the graduated scale in effect at

the time under section 202 of the former Tax Act of 1963 for Education

(Computation of Tax), formerly 72 P.S. §3403-202,4 the amount of tax due differed

4

Act of April 23, 1963, as amended, repealed by the Act of March 4, 1971, P.L. 47, No.

2.

PAM -5

based on the amount of the item. As the Supreme Court observed, under that (now

repealed) section, the total sales tax due on one 75¢ sale was less than that due on

three 25¢ sales. Id. at 152. Therefore, each single use of one washing machine

constituted one “separate sale at retail” that had to be assessed separately.

The important takeaway from Morris Half Hour Laundromat is that all

purchases made at a single visit do not represent one inseparable sale at retail. By

concluding that the combined taxable receipts from one transaction reflect a single

sale at retail, the Majority has adopted an interpretation of the sales tax provisions

of the Tax Code that has expressly been rejected by the Supreme Court. Morris Half

Hour Laundromat makes it clear that a single sale at retail means a sale of each

separate item. This tenet applies whether the discount taken is a dollar amount

discount, a percentage-off discount or a discount taken on the sale of an item which

is less than $1.00.

Like the statute in effect at the time of Morris Half Hour Laundromat,

section 203 of the Tax Code computes sales tax on purchases under one dollar

according to a graduated schedule:

The amount of tax imposed by section 202 of this article

shall be computed as follows:

(a) If the purchase price is ten cents (10¢) or less, no tax

shall be collected.

(b) If the purchase price is eleven cents (11¢) or more but

less than eighteen cents (18¢), one cent (1¢) shall be

collected.

(c) If the purchase price is eighteen cents (18¢) or more

but less than thirty-five cents (35¢), two cents (2¢)

shall be collected.

PAM -6

(d) If the purchase price is thirty-five cents (35¢) or more

but less than fifty-one cents (51¢), three cents (3¢)

shall be collected.

(e) If the purchase price is fifty-one cents (51¢) or more

but less than sixty-eight cents (68¢), four cents (4¢)

shall be collected.

(f) If the purchase price is sixty-eight cents (68¢) or more

but less than eighty-five cents (85¢), five cents (5¢)

shall be collected.

(g) If the purchase price is eighty-five cents (85¢) or more

but less than one dollar and one cent ($1.01), six cents

(6¢) shall be collected.

(h) If the purchase price is more than one dollar ($1.00),

six per centum of each dollar of purchase price plus the

above bracket charges upon any fractional part of a

dollar in excess of even dollars shall be collected.

72 P.S. §7203.

If BJ’s sells five items that are less than one dollar each, say $0.25,

$0.50 and $0.75, and one $0.10 coupon is used, it is impossible for the Department

to verify that the correct amount of sales tax was collected unless the Department

knows which item was discounted. This was clearly demonstrated in Morris Half

Hour Laundromat.

For dollar-off coupons, such as the transactions at issue here, vendors

will be required to charge sales tax on the discounted price of an item even though

the Department will only able to verify that vendors have collected 6% of the

discounted price of all taxable items in toto.

For percentage-off discounts, the Department will be unable to

determine which percentage-off coupon was applied to which item, and the sales tax

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owed would be impossible to verify. This is demonstrated by the following example:

assume a consumer purchases two items in one transaction. The listed price of

taxable Item #1 is $5.10, the listed price of taxable Item #2 is $3.50, and two coupons

in the amount of 20% and 30% were presented, which were incapable of being linked

to a specific item.

Assuming the 20% coupon actually related to Item #1, the sales tax

would be $.24 ($5.10 x .20 = $1.02, $5.10 - $1.02 = $4.08 x .06 = $0.24). Assuming

the 30% coupon related to Item #2, the sales tax would be $.15 ($3.50 x .30 = $1.05,

$3.50 – $1.05 = $2.45 x .06 = $0.15) – and the total sales tax for the two items would

be $0.39.

Reversing these assumptions demonstrates the incongruity of the

Majority’s thesis and why simply calculating the 6% sales tax on the total amount

of the discounted taxable items contravenes reality. In other words, it matters which

coupon relates to each item. If the 30% coupon was for Item #1, the sales tax would

be $0.21 ($5.10 x .30 = $1.53, $5.10-$1.53 = $3.57 x .06 = $0.21). If the 20%

coupon was for Item #2, the sales tax would be $.17 ($3.50 x .20 = $0.70, 3.50–

$0.70 = $2.80 x .06 = $0.17) for total of $0.38.

Without resorting to conjecture, the percentage-off discounts cannot

serve as the basis for establishing a new purchase price of the taxable items. Without

a link to the specific item to which they relate, Taxpayer cannot establish that he was

overcharged sales tax. This is why, contrary to the Majority’s reasoning, it is not

sufficient that the item and coupon merely “appear” on the register receipt, without

a clear connection to the item to which it relates.

I also believe the Majority errs in its analysis of a “one item/one

coupon” transaction. The Majority believes the sales tax should be assessed on the

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discounted amount when one taxable item is purchased and one coupon for a taxable

item is scanned ostensibly because there can be no question that the coupon related

to a taxable item purchased. I do not believe this rationale passes muster. First, an

item cannot be taxed differently just because it is purchased as a single item, instead

of within a group of items. The fact that there might be one item and one coupon -

is a matter of “happenstance” or chance, not a matter of the store’s “capability” to

link a coupon to an item on the receipt - which is the only way under the regulation

to establish a new purchase price of an item. If the store is incapable of linking the

coupon to the item on a multiple item transaction, as in this case, then the store is

ipso facto also incapable of linking it on a “one item/one coupon” transaction - even

if it may seem “obvious” due to the fact that there is only one item and one coupon

used. Third, a “scanned coupon,” even on a “one item/one coupon” receipt, does

not necessarily prove a new “purchase price” because the discount could be for a

discount which under the regulations does not establish a “new purchase price” of

an item (for example, a delayed tax sale, or some other in-store promotion).

There is no law in Pennsylvania that requires a vendor, such as BJ’s, to

have the capability of linking a discount coupon to a particular item on the register

receipt. If Taxpayer is unsatisfied with this business practice, he can take his

business elsewhere, and shop at a vendor that has such capability of imposing and

collecting sales tax on a discounted price. This Court cannot interfere with the

Department’s method of imposing sales tax on a per item basis, and its ability to

ensure that vendors are reporting and remitting the correct amount of sales tax. This

is precisely what the Majority has done here today by holding that there is no

requirement within the regulation that the receipt indicate precisely to which taxable

item the coupon relates.

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For these reasons, I would grant the Commonwealth’s exceptions,

reverse the Panel’s decision, and deny Taxpayer’s petition for refund.

PATRICIA A. McCULLOUGH, Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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