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Texas: Court of Appeals reverses Comptroller position, finding that the sale-for-resale exemption applies to hotel consumables

A Texas Court of Appeals has determined that a hospitality company’s purchases of hotel consumables, such as soap, shampoo, conditioner, mouthwash, shower caps, pens, and notepads (the “hotel consumables”), that were placed in the hotel room for the use of its guests, were entitled to the sale-for-resale exemption for Texas sales and use tax (DTWC Corp. v. Combs, Texas Court of Appeals, Third District, Austin, No. 03-10-008-CV, April 11, 2013). This ruling reverses the Comptroller’s long-held position that such hotel consumables are not resold to guests, but are instead used by the taxpayer and subject to sales tax. Based on this case, taxpayers purchasing hotel consumables should consider whether it would be beneficial to file a refund claim if they previously paid sales tax on such purchases.

Background

Both parties stipulated to the facts of this case. DTWC Corporation, successor-in-interest to Red Lion Hotels, Inc. (“Red Lion”), operated a hotel in Austin, Texas. Red Lion charged each of its guests a set fee for overnight lodging, which was subject to state and local hotel-occupancy taxes. The cost of the hotel consumables was factored into the lodging fee. Guests who did not use or want the hotel consumables did not receive a reduced fee for foregoing the use of the hotel consumables. Red Lion stored the hotel consumables in a locked area on its hotel property until such items were needed to replace any hotel consumables used or taken by its guests.

Sale-for-resale exemption

Section 151.302(a) of the Texas Tax Code (the “Code”) provides for an exemption from sales tax for the “sale for resale of a taxable item.” For the tax periods at issue, a “sale for resale” was defined in Section 151.006(a)(1) of the Code to include a sale of “tangible personal property … to a purchaser who acquires the property … for the purpose of reselling it … in the normal course of business in the form or condition in which it is acquired.” A “sale” or “purchase” includes “a transfer of title or possession of tangible personal property” when “done or performed for consideration.” Section 151.005(1) of the Code.

Application of sale-for-resale exemption to hotel consumables

The Court determined that under a plain reading of the statute, Red Lion’s use of the hotel consumables qualifies for the sale-for-resale exemption. The Court stated that the hotel consumables were tangible personal property that were placed in the form or condition in which Red Lion acquired them in the hotel rooms for its guests to use, not use, or take, were included as part of the fee charged for such hotel room and were transferred to its guests in the normal course of Red Lion’s business.

The Comptroller made four unsuccessful arguments in support of its position that the hotel consumables did not qualify for the sale-for-resale exemption.

  1. The Comptroller argued that the purpose of such exemption was to avoid having the same goods subject to sales tax twice. In this case, the sale of a hotel room is subject to a hotel-occupancy tax, not a sales tax. The Court disagreed with this position, explaining that they are bound to apply the exemption the legislature has written. The Court stated that if the plain language of the sale-for-resale exemption applies to the taxpayer’s purchase of hotel consumables, then the Court must conclude that the taxpayer is entitled to this exemption regardless of whether the ultimate consumer pays sales tax on such items.
  2. The Comptroller argued that the hotel consumables were a gift because the hotel’s guests only paid for lodging, not the other incidentals associated with the room. The Court found this argument unpersuasive because the parties had stipulated that part of the fee charged for the lodging included the cost of the hotel consumables. Even in the absence of such stipulation, the Court noted that the undisputed evidence established that the cost of the hotel consumables was included as a factor in setting the room rate. 
  3. The Comptroller argued that in order to be eligible for the sale-for-resale exemption, the taxpayer must be in the business of selling the hotel consumables. The Court disagreed, stating the sale-for-resale exemption only requires that the hotel consumables have been bought and resold in the normal course of Red Lion’s business. The Court explained that Red Lion’s business is to provide its guests with the type of overnight lodging its guests demand, which includes the provision of certain in-room amenities, such as the hotel consumables.
  4. The Comptroller argued that even if the sale-for-resale exemption applies, Red Lion is liable for at least some use tax because the hotel consumables bore Red Lion’s name and logo and were used by Red Lion as marketing tools. The Court disagreed, explaining that the hotel consumables were only used for the convenience of the guests and not for marketing purposes because Red Lion kept such hotel consumables in a locked storage room until they were placed in the hotel room, at which point, the guests had already agreed to stay at the hotel.

Status of the controversy

As of the date of this article, the docket for this case indicates that the Comptroller is planning to appeal this case to the Texas Supreme Court. Even if the Comptroller is unsuccessful in this litigation, it could take the position that the decision only applies prior to the amendment to the sale-for-resale exemption effective January 1, 2012, which provides that such exemption only applies to tangible personal property that is resold “with or as a taxable item” as defined under the sales and use tax laws. However, that position could also be challenged. 

Click here for the link to the Court’s docket for the full text of this case.

New York: Now that New York City is sweet, California decides to sour

Earlier this year, New York City Mayor Michael Bloomberg’s regulations to stave off overconsumption of sugary drinks were overturned in state court. The measure banned sales of sugary drinks in excess of 16 ounces in restaurants and other food service establishments. Presently, after the New York court overruled the measure, sugary drink sales in New York City are not limited based on volume.

California has decided to take a different tack to the matter of consumption of sugary drinks in the spirit of fighting obesity – tax it.

A new bill working its way through the California Senate, S.B. 622, would impose a one cent tax:

  1. Per ounce on bottled sweetened beverages, and
  2. On sweetened beverage concentrate per fluid ounce of sweetened beverage to be produced from that sweetened beverage concentrate.

“Sweetened beverage” means any sweetened nonalcoholic beverage sold for human consumption that has caloric sweeteners and contains more than 25 calories per 12 ounces (excluding fruit and vegetable juice beverages containing more than 50 percent natural fruit or vegetable juice). The bill would also create the Children’s Health Promotion Fund to which sweetened beverage tax monies would be transferred. The Children’s Health Promotion Fund monies would then be used for statewide childhood obesity prevention activities and programs.

This form of tax legislation may mark the beginning of a new “sin tax” trend working its way through state legislatures under the guise of obesity prevention and control. 

Click here to read S.B. 622.

North Dakota: I’d rather post bond: General partners may be personally liable for payment of partnership’s taxes

North Dakota Governor Jack Dalrymple signed into law H.B. 1106. One change (among the many) made by this legislation is to impose a special joint and several liability on general partners of a Limited Liability Limited Partnership (LLLP) who are responsible for the preparation of tax returns or payment of tax. If the LLLP fails to file the required returns or pay the taxes due, the general partners charged with such responsibilities will be personally liable. The general partner’s liability is not merely limited to taxes, but also extends to any penalties and interest related to such taxes. Additionally, dissolution of the LLLP does not relieve such general partners of their liability.

Fortunately, the general partners responsible for tax obligations can avoid such liability by electing not to be personally liable. If the general partners make such an election, the LLLP must make a cash deposit or post with the state’s tax commissioner a bond executed by an authorized surety company. The amount of such cash deposit or surety bond must be equal to the estimated annual tax liability of the LLLP. 

Click here to read H.B. 1106.

For additional information regarding these subjects or any other multistate tax issues, please contact:

David M. Kall
216.348.5812
dkall@mcdonaldhopkins.com

Susan Millradt McGlone
216.430.2022
smcglone@mcdonaldhopkins.com

Jeremy J. Schirra
216.348.5444
jschirra@mcdonaldhopkins.com

Multistate Tax Services

Businesses must be vigilant and careful in managing their state and local tax liabilities and exposures. We understand this can be a daunting task. McDonald Hopkins Multistate Tax Services provides a broad range of state and local tax services including tax controversy, tax evaluation, tax planning, and tax policy. With professionals who have worked both inside and outside government agencies, our multistate tax team leverages its knowledge and experience to help clients control their complex multistate taxes.

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