Circuit City Stores, Inc. v. Director of Revenue, consolidated with)Dillard's, Inc. v. Director of Revenue

SUPREME COURT OF MISSOURI
en banc
CIRCUIT CITY STORES, INC., )
)
Respondent, )
)
vs. ) No. SC93687
)
DIRECTOR OF REVENUE, )
)
Appellant. )

consolidated with

DILLARD’S, INC., )
)
Respondent, )
)
vs. ) No. SC93711
)
DIRECTOR OF REVENUE, )
)
Appellant. )

PETITIONS FOR REVIEW OF DECISIONS OF THE
ADMINISTRATIVE HEARING COMMISSION
The Honorable Sreenivasa Rao Dandamudi, Commissioner

Opinion issued July 29, 2014

Circuit City and Dillard’s offered customers the opportunity to finance their

purchases through private label credit cards. The cards were issued by banks with which

each retailer had negotiated agreements. The bank immediately paid to the retailer the

full amount of the purchase, including sales tax, for each transaction made using the

private label credit card. The retailer then remitted the applicable sales tax to the State.
A customer’s payments on the credit card went to the issuing bank. If a customer failed

to pay his or her credit card debt, the issuing bank took any tax write off, as the retailer

had been paid fully at the time of sale. Although neither Circuit City nor Dillard’s

suffered any loss on these purchases or on the payment of sales tax based on these

purchases, both retailers nonetheless applied for refunds of the sales tax that the banks

had written off. The Administrative Hearing Commission (AHC) held that the Director

of Revenue erred in denying these refund claims.

The Director petitions for review. This Court reverses and remands. 1 The

retailers are incorrect in arguing that section 144.190.2, RSMo Supp. 2013,2 considered

alone or in conjunction with 12 CSR 10-102.100, 3 permitted them to be treated solely for

sales tax refund purposes as a single organizational entity with the banks. The retailers

and the banks are separate entities for sales tax refund purposes just as they concede they

are separate entities for other purposes such as paying the sales tax, writing off the bad

debt, or otherwise. Because, at the time of the initial transaction, the banks fully paid the

retailers for both the amount of the sales tax and the amount of the purchase on which

that tax was based, the retailers are not entitled to seek a refund of taxes the banks later

wrote off.

1
The two cases have been consolidated on appeal due to the similar nature of the legal
issues presented.
2
All statutory references are to RSMo 2000, unless otherwise indicated, as here.
3
As discussed below, 12 CSR 10-102.100 allows for tax refunds on bad debts written off
by a retailer only when there is a timing difference between the remission of sales tax to
the State and full payment on the purchase, with a resulting write-off by the retailer as to
certain customers who fail to pay after the tax is remitted. Here, the retailers received full
payment from the banks at the time of sale and remittance of the sales tax to the State.
I. STATEMENT OF FACTS

Both Circuit City and Dillard’s sold retail goods and were registered with the

Missouri Department of Revenue. Both entered into contracts with banks to issue private

label credit cards. Private label credit cards generally can be used only at the retail store

named on the card or at one of its affiliates. In other words, Circuit City customers who

obtained a Circuit City private label credit card could use it to charge purchases made at

Circuit City and affiliated stores; Dillard’s customers who obtained a Dillard’s private

label credit card could use it to charge purchases made at Dillard’s and affiliated stores.

Circuit City partnered with JPMorgan Chase Bank NA 4 to operate and service its

private label credit card accounts under a jointly negotiated program agreement. Under

this agreement, Chase received and reviewed Circuit City customer credit card

applications and decided whether to approve and issue a card. Chase also owned all

Circuit City card accounts. Both Chase and Circuit City participated in developing and

reviewing the card’s marketing plan, and both provided training to staff members from

the other company.

Dillard’s partnered with GE Capital Consumer Card Co.5 Like Chase, GE Capital

owned, authorized, and issued all Dillard’s credit cards. The program agreement between

Dillard’s and GE Capital included a predetermined approval rate and an income sharing

4
Circuit City first established its private label credit card program through First North
American National Bank, a wholly owned subsidiary, and then continued to operate the
program through Bank One Delaware, N.A. Chase Bank is the successor to Bank One.
This opinion will refer to the bank with which Circuit City contracted to provide its
private label credit card as Chase.

3
agreement settled monthly based on program revenues and bad debts incurred. Fifteen

GE Capital staff members worked out of Dillard’s headquarters and stores to administer

the private label card program.

Both program agreements contained the same type of payment mechanism. At the

point of sale, the customer used the private label credit card to purchase the merchandise.

The retailer then remitted to the Director the sales tax due. The agreements required the

issuing bank to pay the retailer the full amount of the purchase price plus the sales tax the

retailer would remit to the State minus whatever fee was negotiated. The customer’s

payments then would go to the bank issuing the card, either by direct payments to the

bank or via in-store payments accepted at Circuit City and Dillard’s stores. This

financing arrangement meant that, although the cards were issued in the names of the

retailers, if a customer failed to pay his or her bill, it was the bank that would suffer the

loss and take the federal income tax write-off for uncollectable past due accounts. 6

In 2010, Circuit City and Dillard’s separately applied to the Director for a refund

of sales tax amounts remitted to the State but later written off as bad debts by Chase and

GE Capital, respectively. The Director denied both requests. The retailers appealed to

the AHC, which reversed, allowing Circuit City and Dillard’s to claim their respective

sales tax refunds. The Director filed petitions for review in this Court. Because these

cases involve the construction of a state revenue statute, this Court has exclusive

5
Dillard’s previously had operated its private label credit card through a wholly owned
subsidiary, Dillard National Bank, before selling its card accounts to GE Capital.

4
appellate jurisdiction. MO. CONST. art. V, § 3.

II. STANDARD OF REVIEW

A decision of the AHC will be affirmed if: (1) it is authorized by law; (2) it is

supported by competent and substantial evidence based on the whole record;

(3) mandatory procedural safeguards are not violated; and (4) it is not clearly contrary to

the reasonable expectations of the legislature. See MO. CONST. art. V, § 18; § 621.193;

Union Elec. Co. v. Dir. of Revenue, 425 S.W.3d 118, 121 (Mo. banc 2014), citing Brinker

Missouri, Inc. v. Dir. of Revenue, 319 S.W.3d 433, 435 (Mo. banc 2010). The Court

reviews the AHC’s interpretation of revenue statutes de novo. Union Elec., 425 S.W.3d

at 121.

III. THE RETAILERS ARE INELIGIBLE FOR A REFUND OF SALES
TAX ON SALES THEY DID NOT THEMSELVES WRITE OFF

Circuit City and Dillard’s claim eligibility for a sales tax refund under section

144.190.2, which states in relevant part:

If any tax, penalty or interest has been paid more than once, or has been
erroneously or illegally collected, or has been erroneously or illegally
computed, such sum shall be credited on any taxes then due from the
person legally obligated to remit the tax pursuant to sections 144.010 to
144.525, and the balance, with interest as determined by section 32.065,
shall be refunded to the person legally obligated to remit the tax, but no
such credit or refund shall be allowed unless duplicate copies of a claim for
refund are filed within three years from date of overpayment.

In a retail sales transaction, the person statutorily obligated to remit the tax is the seller.

§ 144.080.1. Title 12 CSR 10-102.100, promulgated by the Director to effectuate section

6
See 26 U.S.C. § 166(a)(2) (“When satisfied that a debt is recoverable only in part, the
Secretary may allow such debt, in an amount not in excess of the part charged off within

5
144.190.2, states that sales tax remitted by the seller on what turns out to be an

uncollectible debt – that is, a transaction for which the seller remits to the State the full

amount of sales tax owing but for which the seller ultimately does not receive full

payment − is included within the statutory meaning of a tax “erroneously … collected”

under section 144.190.2. 7

The question before this Court is whether the retailers can claim sales tax refunds

on any debts written off by the banks that issued the retailers’ private label credit cards,

even though the retailers themselves were paid fully by the banks for the purchases,

including sales tax, and even though the retailers did not write off these debts nor do they

claim they could have done so under federal tax law. To resolve this question, the Court

looks first to the language of section 144.010, RSMo Supp. 2013, to determine whether

the retailer is a “person” who can claim a sales tax refund in this circumstance under

section 144.190.2 and related law. Section 144.010(7) defines “person” to include:

any individual, firm, copartnership, joint adventure, association,
corporation, municipal or private, and whether organized for profit or not,
state, county, political subdivision, state department, commission, board,
bureau or agency, except the state transportation department, estate, trust,
business trust, receiver or trustee appointed by the state or federal court,
syndicate, or any other group or combination acting as a unit, and the
plural as well as the singular number …

(emphasis added). The retailers claim that they and the banks financing their private

the taxable year, as a deduction”).
7
The regulation defines “bad debt” as “a sale that has been written off for state or federal
income tax purposes” provided the sale was “previously reported as taxable.” 12 CSR
10-102.100(2)(A). The Director reserves the right to argue in a future case that the
regulation is incorrect to the extent that it states that sales tax that was properly due when

6
label credit cards are “any other group or combination acting as a unit” and, therefore,

they and the banks should be treated as a single “person” for purposes of receiving a sales

tax refund, even though they concede they are not treated as a single person acting “as a

unit” when paying sales tax, taking a tax write-off for bad debts, or for any other purpose.

While section 144.010(7) and prior cases do not define the meaning of “unit” as

used in that statute, 8 “[a]bsent a definition in the statute, the plain and ordinary meaning

is derived from the dictionary.” Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc

2003). A “unit” is “a single thing or person or group that is a constituent and isolable

member of some more inclusive whole: a member of an aggregate that is the least part to

have clearly definable separate existence and that normally forms a basic element of

organization within the aggregate.” WEBSTER’S THIRD NEW INT’L DICTIONARY 2500

(1993).

Here there are two separate entities, or “isolable members,” in each case − a

retailer and a bank. The retailers and banks did not act as a single, “more inclusive

whole” in remitting the sales tax, and the retailers do not argue that the banks were sellers

who legally were required to remit the sales tax or that the banks improperly have failed

to fulfill a retailer’s statutory requirement to register with the State as sellers. The

remitted constitutes tax “erroneously” collected, but concedes the argument for the
purposes of this case.
8
This Court has construed the phrase “acting as a unit” only in a factually distinguishable
context. In Charles v. Spradling, the Court held that the inclusion of “any other group or
combination acting as a unit” in section 144.010’s definition of “person” does not allow
“a class of unrelated individuals as to permit them to make a claim for refunds under
Section 144.190 through a class action representative.” 524 S.W.2d 820, 823 (Mo. banc
1975) (internal citations omitted).

7
retailers argue only that they constitute a “unit” with the banks for purposes of obtaining

a tax refund. They do so because they recognize that, absent treatment as a unit, neither

the retailers nor the banks are entitled to seek a refund. Only the retailer is the entity

“legally obligated to remit the tax” and, therefore, the one eligible to apply for a refund if

it has suffered a loss, but only the bank has sustained bad debt write-off losses. The bank

did not remit the tax and, so, is not entitled to seek a refund under Missouri law. The

retailers, therefore, ask this Court to treat them as one entity with the banks for the sole

purpose of trying to fulfill the prerequisites to obtaining sales tax refunds.

The statute does not so allow. Under the principle of construction known as

ejusdem generis, context is important “in determining the scope and extent of more

general words.” Standard Operations, Inc. v. Montague, 758 S.W.2d 442, 444 (Mo. banc

1988). A court, therefore, looks at the context in which a term is used to determine its

meaning. As applied here, a court should look to the other types of entities listed in the

statute to assist it in determining how the word “unit” is employed in a particular

subsection. See id. (noting that, under this canon, “a document referring to ‘horses,

cattle, sheep and other animals’ will usually be construed as including goats, but not

bears or tigers”).

Section 144.010(7) places the term “group or combination acting as a unit” at the

end of a list of formal organizational structures, including “firm,” “copartnership,” and

“association.” The phrase “group or combination acting as a unit,” therefore, is best

understood as including types of joint entities that, although not specifically listed or

organized through the listed recognized forms, still, like those listed, operate as a single

8
organization. Dillard’s, Circuit City, and their respective banks do not fit within this

statutory scheme. They entered into contractual relationships to finance customer

purchases using private label credit cards. They have not associated or formed any sort

of joint entity or association but, rather, have maintained their independent corporate

identities and responsibilities for all purposes. The Director also persuasively notes that

to read “group or combination acting as a unit” to permit combinations of corporations

would be inconsistent with this Court’s decisions recognizing the importance of separate

corporate existence, even when two corporations act in concert and share a parent

corporation. See, e.g., Cent. Cooling & Supply Co. v. Dir. of Revenue, State of Mo., 648

S.W.2d 546, 549 (Mo. 1982) (finding no basis to ignore separate corporate existence of

subsidiary so subsidiary could avoid tax liability on transfers of goods between itself and

parent). 9

The retailers argue, however, that even if their credit card agreements with the

banks would not otherwise fall within the definition of a “group or combination acting as

a unit” under section 144.190.2, the Director has broadened the scope of the statute to

include them in issuing 12 CSR 10-102.100. This argument is unavailing for two

reasons. First, “[t]he rules or regulations of a state agency are invalid if they are beyond

the scope of authority conferred upon the agency, or if they attempt to expand or modify

statutes.” Union Elec. Co., 425 S.W.3d at 124-25; accord Hansen v. State, Dep’t of Soc.

Servs., Family Support Div., 226 S.W.3d 137, 143-44 (Mo. banc 2007). The Director’s

9
The retailers’ attempt to distinguish Central Cooling on the basis that the subsidiary
sought to avoid taxation rather than to obtain a refund is unpersuasive, as the intended

9
regulation cannot enlarge the meaning of the statute beyond its terms.

Second, the retailers are incorrect in construing 12 CSR 10-102.100 to apply to

them. They rely primarily on the first subsection of the regulation, which states, “In

general, a seller may file for a credit or refund within the three-year statute of limitations

when sales are written off as bad debts.” 12 CSR 10-102.100(1). The retailers say that,

because this sentence is written in the passive form and refers to “when sales are written

off” without saying that it must be the seller who has written them off, they are entitled to

seek refunds if a third party writes off the debt, even though they have written off

nothing.

This interpretation of the regulation ignores its purpose, which is to allow a seller

to receive a refund of sales tax paid if the sale on which it is based went bad and caused

the seller to write off the debt. To allow a seller who has not suffered a loss to receive a

refund would not serve this purpose. The logical fallacy of the retailers’ interpretation is

made clear when the sentence relied on is read in the context of the rest of 12 CSR 10-

102.100, as it must be. See Saint Charles Cnty. v. Dir. of Revenue, 407 S.W.3d 576, 578

(Mo. banc 2013) (“When engaging in statutory construction, this Court recognizes that

‘every word, clause, sentence, and provision of a statute must have effect’”). The

regulation states, in full:

(1) In general, a seller may file for a credit or refund within the three-year
statute of limitations when sales are written off as bad debts.
(2) Definition of Terms.
(A) Bad debt is a sale that has been written off for state or federal
income tax purposes. In order to qualify for a bad debt deduction for

effect of the refund claim is substantially the same.

10
 sales or use tax purposes, a sale must have been previously reported
as taxable.
(B) Accrual or gross sales reporting method means a seller reports
the sale and remits the tax at the time of the sale. The receipts are not
received from the buyer until a later date. Therefore, a timing
difference occurs between the time that the sale, with applicable
sales tax, is reported to the state and the time that the seller receives
payment from the buyer.
(3) Basic Application of the Law.
(A) A seller may file for a refund or credit within the three-year
statute of limitations for those sales written off as bad debts if the
sales were reported using the accrual or gross sales method. This
period is calculated from the due date of the return or the date the tax
was paid, whichever is later.
(B) If a bad debt credit or refund is given and the debt is later
collected, that amount must be reported on the next return as a
taxable sale.

12 CSR 10-102.100. Read together, subsections (2)(B) and (3)(A) make clear that the

regulation applies only when the seller remits the sales tax at the time of sale but “[t]he

receipts are not received from the buyer until a later date. Therefore, a timing difference

occurs between the time that the sale, with applicable sales tax, is reported to the state

and the time that the seller receives payment from the buyer.” 12 CSR 10-102.100(2)(B)

(emphasis added).

Example A of the regulation further illustrates that its limited intended purpose is

to allow a retailer who pays the full amount of sales tax up front to recover the portion of

its own write-off losses remitted to the State when a buyer fails to pay fully:

A retailer reports and pays sales tax on the accrual or gross sales method.
The retailer determines some sales to customers are not collectible and
writes them off as bad debts for income tax purposes. The retailer requests
a credit or refund from the state within the three-year statute of limitations.
The credit or refund would be granted.

12 CSR 10-102.100(4)(A).

11
 In the instant case, there was no timing difference between the time of sale and the

time the retailers received full payment, including applicable sales tax. The retailers

received those amounts immediately from the banks. The retailers sustained no losses in

remitting the sales taxes to the state. The regulation simply does not apply.

Indeed, Circuit City’s and Dillard’s contrary interpretation would allow a party to

be reimbursed fully for sales tax but at the same time to receive a refund of that very tax,

thereby allowing a double recovery of the tax. While the retailers contend that they can

avoid such double recovery through provisions in their agreements with the banks, 10 that

is a matter of their specific contracts; the rules regarding who must pay the tax and who is

entitled to a refund cannot vary depending on what extra-statutory contractual

arrangements a particular retailer chooses to make with a bank. It is the retailer that is the

seller, 11 and to get a refund the retailer itself must write off the debt.

While the specifics of the financing agreements between Dillard’s and Circuit City

10
Circuit City’s private contract allowed it to keep 50 percent of any refunded sales taxes
collected and to pass on the other 50 percent to the bank, even though it already had been
reimbursed for the full sales tax amount by the bank at the time of the sale and retained
those funds. Dillard’s private agreement required it to pass on the whole amount of any
refunded sales tax to the bank, minus Dillard’s recovery costs, and also required shared
profits to be set off by program losses, including bad debts, in certain circumstances.
Under this arrangement, Dillard’s profits may have been reduced as a result of bad debts
written off by the bank, and its income tax liability reduced accordingly, but it still was
reimbursed fully for sales tax by the bank at the time of sale. The Dillard’s agreement
appears to allow GE Capital, for its part, to recover the amount of the sales tax paid by
Dillard’s without losing the value of its write-off of that very tax as part of its bad debt.
11
The retailers again argue that under the statutory definitions of “seller,” § 144.010(12)
(“a person selling or furnishing tangible personal property or rendering services”), and
“person,” § 144.010(7) (“any other group or combination acting as a unit”), they and their
respective banks constitute a single seller for purposes for the refund claim. This
argument is unavailing for the reasons set out above.

12
and their respective issuing banks vary, they have in common that they are private

agreements between companies as to how they will share in profits, losses, or refunds.

While these companies certainly are free to contract as they wish, they have not shown

that their agreements are sufficient to make them a unit − whether through merger or joint

venture or piercing of the corporate veil or by some other means coming within the

definition set out in the statutes. As such, those private agreements do not affect the

result here. A company’s private agreements cannot modify the tax code or transform it

into a joint enterprise for tax purposes. 12

IV. CONCLUSION

The statute does not contemplate treating two separate corporations in a

contractual relationship as a single tax entity for the limited purpose of obtaining a sales

tax refund. The regulation relied on by the retailers to argue to the contrary cannot

expand the statute and, by its terms, does not apply to retailers who do not incur bad

debts because they have been fully reimbursed for the sales tax amounts they remitted to

the state. The decision of the AHC is reversed, and the case is remanded.

_________________________________
LAURA DENVIR STITH, JUDGE

All concur.

12
At oral argument, counsel for the retailers noted that the program agreements were
entered into by sophisticated parties, taking into consideration factors such as the
anticipated default rate. The parties likewise are free to, and already may, contract
around anticipated sales tax losses. Indeed, the agreements also contemplate that their
sharing of losses is subject to applicable laws, such as the statutes this Court applies here.

13