(dissenting) — The result reached by the majority is a product of its expansive reading of the City of Tacoma’s tax provisions. As such, it counters the longstanding canon of statutory construction that any ambiguity in revenue-generating statutes be “construed most strongly against the Government, and in favor of the citizen.” Gould v. Gould, 245 U.S. 151, 153, 38 S. Ct. 53, 62 L. Ed. 211 (1917); Budget Rent A Car Corp. v. Dep’t of Licensing, 144 Wn.2d 889, 904, 31 P.3d 1174 (2001) (Sanders, J., dissenting) (quoting Dep’t of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973)). The majority opinion is further flawed by its failure to first consider whether the funds Evergreen collected from clients constitute gross income before addressing whether they are exempt as pass-through payments.7 I conclude these funds do not meet the definitions of gross income in the Tacoma Municipal Code, and, even if they did, they would nevertheless be *183exempt as pass-through payments per our decision in Rho Co. v. Department of Revenue, 113 Wn.2d 561, 782 P.2d 986 (1989).
A business and occupation (B&O) tax is imposed on a taxpayer’s revenue “for the act or privilege of engaging in business activities” in the jurisdiction of the taxing authority. E.g., RCW 82.04.220; Tacoma Municipal Code (TMC) 6.68.220. When, as here, the revenue is generated from rendering of services by the taxpayer, the basis for the tax is the compensation received in consideration. Walthew, Warner, Keefe, Arron, Costello & Thompson v. Dep’t of Revenue, 103 Wn.2d 183, 187, 691 P.2d 559 (1984); RCW 82.04.220, .070, .080; cf. Swedish Hosp. Med. Ctr. v. Dep’t of Revenue, No. 86-28, Bd. of Tax Appeals (Wash. Nov. 25, 1987), available at 4 Wash. Tax Dec. 299, 1987 Wash. Tax LEXIS 42, 1987 WL 114607, at *7.
The City of Tacoma imposes a B&O tax on businesses within its jurisdiction by virtue of TMC 6.68.220:
There is hereby levied upon and there shall be collected from every person as hereinafter provided, for the act or privilege of engaging in business activities within the City of Tacoma ... a license fee or occupation tax, sometimes herein referred to as the “tax,” in amounts to be determined by application of rates given against value of products, including by-products, gross proceeds of sales or gross income of business, as the case may be ... .
This provision is essentially identical to its state counterpart, RCW 82.04.220 (“There is levied and shall be collected from every person a tax for the act or privilege of engaging in business activities. Such tax shall be measured by the application of rates against value of products, gross proceeds of sales, or gross income of the business, as the case may be.”). As the plain text of TMC 6.68.220 makes evident the city of Tacoma imposes a B&O tax on a taxpayer’s “gross proceeds of sales or gross income of business.” This phrase, which hereinafter will be referred to simply as “gross income,” cf. Walthew, 103 Wn.2d at 186-88, is subject to further definitions in the city code:
“Gross proceeds of sales” means the value proceeding or accru*184ing from the sale of tangible personal property and/or for services rendered ....
TMC 6.68.060 (emphasis added).
The term “gross income of the business” means the value proceeding or accruing by reason of the transaction of the business engaged in and includes gross proceeds of sales, compensation for the rendition of services ....
TMC 6.68.070 (emphasis added).
The term “value proceeding or accruing” means the consideration, whether money, credits, rights or other property expressed in terms of money, actually received or accrued. . . .
TMC 6.68.080 (emphasis added).8 Thus, funds collected are includable in a taxpayer’s gross income only if and to the extent they are consideration for services rendered. TMC 6.68.060, .070; cf. RCW 82.04.070, .080. That is the starting point to determine whether the funds Evergreen collected from its clients are subject to the City of Tacoma’s B&O tax.
The majority, however, overlooks this threshold issue and concerns itself only with whether the funds Evergreen collected from its clients meet the exemption in the city’s administrative rule 111 (City of Tacoma, Department of Tax & License, Rule 111). But Rule 111 exempts money that otherwise would have qualified as gross income. If the money does not even constitute gross income, we need not concern ourselves with the exemption; the money is not subject to B&O tax to begin with. TMC 6.68.220.
This premise is not new, for it stems from our decision in Walthew, 103 Wn.2d 183. There we addressed State Rule 111 (WAC 458-20-111), which is identical to the City of Tacoma’s Rule 111, in light of the definition of gross income in RCW 82.04.080. We discussed our earlier decision in Christensen, O’Connor, Garrison & Havelka v. Department of Revenue, 97 Wn.2d 764, 649 R2d 839 (1982), which set *185forth a three-element test to determine whether funds are exempt as pass-through payments pursuant to Rule 111. Christensen held payments to a taxpayer are excluded from gross income if
(1) it is a customary reimbursement for an advance made to procure a service for the client, (2) the taxpayer does not or cannot render the service, and (3) the taxpayer was not liable for the payment.
Christensen, 97 Wn.2d at 768. With respect to the third element, Christensen explained this requirement is met if the taxpayer is not liable for making the payment “except as the agent of the client.” Id. at 769. Thus, as we later noted in Walthew, a fundamental basis for the exclusion in Rule 111 is agency—payments are excluded if the taxpayer’s obligation to make them was “solely agent liability.” Walthew, 103 Wn.2d at 188 (discussing Christensen).
We further noted that, in contrast to Rule 111, “[n]othing in the statute [RCW 82.04.080] refers to exceptions on the basis of agency and liability.” Id. at 187-88. “[T]he statute’s obvious intent [is] to tax only gross income which is ‘compensation for the rendition of services’ (RCW 82.04.080) or ‘consideration. . . actually received or accrued’ (RCW 82.04.090).” Id. at 188. Since the Tacoma Municipal Code provisions at issue here are the same in all important respects, compare TMC 6.68.060-.080 with RCW 82.04.070-.090, the same is true here: The City of Tacoma may impose B&O tax only on compensation or consideration received by Evergreen for services rendered by Evergreen. See Med. Consultants N.W., Inc. v. State, 89 Wn. App. 39, 48, 947 P.2d 784 (1997) (excluding from gross income money collected by the taxpayer for services rendered by persons other than the taxpayer); Swedish Hosp. Med. Ctr., 1987 Wash. Tax LEXIS 421987, at *18, 1987 WL 114607, at *7 (excluding payments from gross income because the taxpayer “gained nothing in terms of compensation or consideration for any sales or services”).
The majority’s focus on Rule 111 and whether Evergreen has established an agency relationship pursuant to that *186rule is therefore premature. Before that even becomes an issue, the city must first establish the payments Evergreen collected to reimburse the cost of wages for the temporary workers constitute gross income per TMC 6.68.060-.080. This the city cannot do.
Evergreen collects payments from its clients to compensate (1) the cost of recruiting temporary workers for its clients and (2) the cost of wages to the temporary workers that are hired by Evergreen’s clients. Only funds to compensate the costs in the first category constitute consideration for services rendered by Evergreen. Funds collected to compensate the cost of wages relate to services rendered by the temporary workers. They are therefore not includable in Evergreen’s gross income, and hence not subject to B&O tax—irrespective of whether they meet the test for pass-through payments in Rule 111. See TMC 6.68.070 (defining “ ‘gross income of the business’ ” to include “ ‘compensation for the rendition of services’ ”); Walthew, 103 Wn.2d at 187; cf. Med. Consultants N.W., 89 Wn. App. at 48 (“The monies MCN collects for medical exams are not for MCN’s ‘rendition of services,’ but rather are passed through to the actual Tenderers of the medical examination services, i.e., the physicians.”). I would therefore affirm the superior court’s decision that Evergreen is entitled to retain the amount in controversy, $37,508.50.
In the alternative, even if the funds collected by Evergreen to compensate the cost of wages could be considered gross income, they nevertheless qualify for the pass-through exemption in Rule 111. That exemption is based in the recognition that some receipts of a business are not for services rendered by the taxpayer, but rather are reimbursements for expenses paid by the taxpayer on behalf of a customer or client. The distinction is between the cost of doing business, which is part of the B&O tax base, and reimbursement for expenses of another, which is not. IB Kelly Kunsch, Washington Practice: Methods of Practice § 72.24 (4th ed. 1997).
*187Rule 111 provides, in part:
There may be excluded from the measure of tax amounts representing money or credit received by a taxpayer as reimbursement of an advance in accordance with the regular and usual custom of his business or profession.
The foregoing is limited to cases wherein the taxpayer, as an incident to the business, undertakes, on behalf of the customer, guest or client, the payment of money ... in procuring a service for the customer, guest or client which the taxpayer does not or cannot render and for which no liability attaches to the taxpayer. It does not apply to cases where the customer, guest or client makes advances to the taxpayer upon services to be rendered by the taxpayer... in carrying on the business in which the taxpayer engages.
City of Tacoma, Department of Tax & License, Rule 111 (1984); cf. WAC 458-20-111. Evergreen provides temporary staffing services that supply temporary workers to companies throughout the Puget Sound region. It does not provide the types of services that the temporary workers perform once hired by Evergreen clients. Examples include clerical services, such as typing, but also services such as moving lumber and working in bank vaults. As the superior court found, “[t]hese are services which Evergreen does not render and, in fact, does not have the capability of rendering.” Clerk’s Papers (CP) at 326. Instead, Evergreen recruits temporary workers for its clients and functions as the employer of record for the workers. Evergreen withholds income and payroll taxes, files state and federal tax returns, and provides each temporary worker his or her wages once the worker is hired by an Evergreen client. In other words, Evergreen’s role is to procure services for its clients which Evergreen itself cannot render. The money paid by Evergreen to those who render those services for its clients, i.e., the temporary workers, is incident to Evergreen’s business and therefore qualifies for the pass-through exemption in Rule 111.
Rule 111 additionally provides:
The word “advance” as used herein, means money or credits received by a taxpayer from a customer or client with which the *188taxpayer is to pay costs or fees for the customer or client. The word “reimbursement” as used herein, means money or credits received from a customer or client to repay the taxpayer for money or credits expended by the taxpayer in payment of costs or fees for the client.
The words “advance” and “reimbursement” apply only when the customer or client alone is liable for the payment of the fees or costs and when the taxpayer making the payment has no personal liability therefor, either primarily or secondarily, other than as agent for the customer or client.
City of Tacoma, Department of Tax & License, Rule 111 (1984); cf. WAC 458-20-111. The majority devotes most of its analysis to this portion of Rule 111, but its resolution is not true to our decision in Rho Co. v. Department of Revenue, 113 Wn.2d 561, 782 P.2d 986 (1989).
The situation in the case at bar is on all fours with the situation in Rho. Like Evergreen, Rho Company, Inc., was in the business of supplying other companies with temporary workers—engineers to be precise. Rho, 113 Wn.2d at 563. When a client needed an engineer, Rho would check its available bank of personnel for a suitable candidate. Id. at 564. If no suitable engineers were available, Rho would recruit engineers to match the client’s needs. Id. With Rho acting as an intermediary, the client and the engineer would negotiate salary and other employment conditions. Id. Once the employment was set up, the engineer was subject to the client’s guidance with respect to job assignments and the duration of employment. Id. The client was responsible for supervising the worker, evaluating his or her performance, providing tools and materials, and for terminating the engineer. Id. Rho’s clients did not compensate the temporary workers directly; instead the money was funneled through Rho, which in turn paid the workers and withheld required taxes. Id. at 563-64. The amounts collected by Rho from its clients included not only compensation for wages paid by Rho to the engineers, but also profit on behalf of Rho for procuring engineers for its clients. Id. at 565.
*189Evergreen operates in the same manner. When a client of Evergreen needs temporary workers, Evergreen first determines whether there are any available candidates in its “ ‘available for assignment’ ” list. CP at 324 (superior court’s findings of fact). Unless the position involves only general job skills, Evergreen usually recruits suitable personnel to match its client’s needs. Although Evergreen is the employer of record for the temporary workers, the decision of whether a worker will obtain temporary employment with an Evergreen client is made by the client. It is also the client’s responsibility to supervise the worker once hired by the client, evaluate his or her performance, provide tools and materials, and determine the duration of employment. Evergreen’s clients do not compensate the temporary workers directly; instead the money is funneled through Evergreen. The amounts collected by Evergreen from its clients include “the hourly rate of the worker, a ‘gross margin’ charged by Evergreen (which includes overhead and profit), any charges for special services requested by the customer, such as background checks, etc., and any benefits to be paid to the temporary worker.” CP at 324 (finding of fact 22).
Returning to Rho, based on Rho’s operation of its temporary staffing service we analyzed the applicability of Rule 111 under the three-prong Christensen test. We noted there was no question as to the applicability of the first two elements: that the payments are “ ‘customary reimbursements for advances made to procure a service for the client’ ” and “ ‘involve services that the taxpayer did not or could not render.’ ” Rho, 113 Wn.2d at 567-68 (quoting Christensen, 97 Wn.2d at 769). We said “[t]he clients customarily paid Rho for procuring the engineering services rendered by the technical personnel, and Rho did not itself perform these services.” Rho, 113 Wn.2d at 568. Likewise, Evergreen’s clients pay Evergreen to procure services rendered by temporary workers; services Evergreen itself does not perform. Thus, the first two elements of Christensen are also met here.
*190Our analysis of the third element of the Christensen test in Rho posed a two-pronged question: First, did Rho act as an agent for its client in paying the engineers, and second, if so, was Rho’s liability to the engineers solely that of an agent? Rho, 113 Wn.2d at 571.
With respect to the first prong, we set forth the applicable test as whether the “clients consented—either expressly or impliedly—that Rho would act under the clients’ control.” Id. at 571. Whether there is an express contractual establishment of an agency relationship is not determinative; rather the “standard definition of agency should be used in analyzing Rule 111. . . .” Id. at 573. That definition, nowhere to be found in the majority opinion, is as follows:
“Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”
Walter v. Everett Sch. Dist. No. 24, 195 Wash. 45, 48, 79 P.2d 689 (1938) (quoting Restatement of Agency § 1 (1933)); see also Matsumura v. Eilert, 74 Wn.2d 362, 368, 444 P.2d 806 (1968) (citing Restatement (Second) of Agency § 1 (1958)). Although agency is a legal concept (i.e., a relationship created by law), the existence of an agency relationship “ ‘depends upon the existence of required factual elements.’ ” Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 940, 845 P.2d 1331 (1993) (quoting Restatement (Second) of Agency § 1 cmt. b). Whether an agency relationship has been created is therefore a question of fact. Nordstrom Credit, Inc., 120 Wn.2d at 941; Mullen v. N. Pac. Bank, 25 Wn. App. 864, 877, 610 P.2d 949 (1980).
The superior court found an agency relationship did in fact exist between Evergreen and its clients. CP at 326 (“In paying the temporary workers’ wages, Evergreen acted on behalf of its customer and as the agent of the customer.”) (finding of fact 36). This finding is entitled to great weight on appellate review. Lorang v. Lorang, 42 Wn.2d 539, 541, 256 P.2d 481 (1953); Williams v. Bevis, 152 Wash. 469, 479, *191278 P. 193 (1929). Our role is limited to determining “whether substantial evidence exists to support the findings.” Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 712, 732 P.2d 974 (1987); Schmechel v. Ron Mitchell Corp., 67 Wn.2d 194, 197, 406 P.2d 962 (1965) (finding of fact may be rejected on appeal only if reached on a “wholly erroneous basis”); Lorang, 42 Wn.2d at 541 (finding of fact may be rejected only if the result of patent abuse of discretion). “ ‘Substantial evidence’ is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.” Fred Hutchinson Cancer Research Ctr., 107 Wn.2d at 712.
There is ample evidence to support the superior court’s finding an agency relationship existed here. Facts indicating consent on behalf of both Evergreen and its clients that Evergreen acted on its clients’ behalf and subject to their control include, but are not limited to: (i) Evergreen’s role as recruiter of workers to suit the clients’ needs; (ii) Evergreen’s role as employer of record for the clients’ temporary employees; (iii) Evergreen’s role as payor of workers’ wages; (iv) Evergreen’s role as withholder of payroll taxes; (v) Evergreen’s role as filer of necessary tax returns; (vi) Evergreen’s collection of fees to cover, not only workers’ wages, but also its own compensation and profit for the above services; (vii) that clients have final say on whether to hire a temporary worker suggested by Evergreen and, if so, for how long; and (viii) the fact the temporary workers do not get paid by Evergreen until they are hired by an Evergreen client.
The majority, however, refuses to follow the superior court’s factual finding. See majority at 178. Instead, the majority engages in a de novo review of the facts presented and concludes, based on Evergreen’s admission that it is the employer of record of the temporary workers, “that Evergreen has failed to establish that it paid its temporary workers pursuant to an agency relationship.” Majority at 178. The majority’s analysis not only improperly rejects the superior court’s factual finding but also disregards our
*192holding in Rho that formality does not control whether agency exists. Rho, 113 Wn.2d at 569-70.
The majority recasts some findings of fact as conclusions of law in a blunt attempt to justify its de novo review. It is true conclusions of law mislabeled as findings of fact are reviewed as conclusions of law, e.g., Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986) (citing Woodruff v. McClellan, 95 Wn.2d 394, 396, 622 P.2d 1268 (1980)); however, as noted above, the existence of an agency relationship is a question of fact, not law. Nordstrom Credit, Inc., 120 Wn.2d at 940; Mullen, 25 Wn. App. at 877. Instead of “hesit at [ing] to disturb the findings of the trial court upon the facts” as we ought, Swift v. Starred, 117 Wash. 188,188, 200 P. 1108 (1921), today’s majority cannot rush quickly enough to replace the superior court’s factual findings with its own. The superior court’s finding of agency is amply supported by the record.
As for the second prong of the third element of the Christensen test—whether the taxpayer’s liability to the temporary workers was solely that of an agent—we said in Rho:
Resolution of this issue will require analysis of the control over the contract personnel that was exercised by Rho and by the clients. If the clients’ control over the personnel was so pervasive that it should be deemed the employers of the personnel for purposes of B&O taxation, and Rho’s control consisted of little more than paying the personnel once they were hired, then Rho should be deemed to be a mere paymaster who pays the personnel only as an agent for the clients. The areas in which control will be important will include hiring, compensation, work assignment, supervision and termination.
Rho, 113 Wn.2d at 573 (emphasis added).
Analysis of each of these areas reveals the superior court correctly found the clients’ control over the temporary workers was so pervasive that Evergreen should be deemed their agent and paymaster. Although Evergreen is the employer of record for the temporary workers, the ultimate decision on hiring and firing with respect to a client is made *193by the client, not Evergreen. As for compensation, it is true the temporary workers are directly compensated by Evergreen (on behalf of the clients). But the majority makes it appear as if Evergreen pays the workers regardless of whether they are employed by an Evergreen client. Not so. The superior court’s unchallenged finding of fact 16 provides “temporary workers are not paid unless and until they go to work for a customer of Evergreen.” CP at 323. Finally, decisions as to work assignment and supervision are also firmly ensconced in the client.
Thus, the third element of the Christensen test is also met with respect to the payments Evergreen collected from its clients to reimburse the cost of workers’ wages. Consequently, these payments qualify for the pass-through exemption in Rule 111. This is an independent ground to affirm the superior court.
I dissent.
The majority suggests that because respondents did not specifically argue that funds collected by Evergreen are not “gross income,” and thus exempt from the business and occupation (B&O) tax, we should not consider this issue on review. Majority at 175 n.4.1 disagree. Deciding whether the funds are subject to the B&O tax is precisely the issue before this court, and whether they are “gross income” is an integral part of that judgment. Moreover, there is no bar to this court considering issues not raised at trial when the interests of justice so dictate. RAP 1.2(c); see, e.g., Tuerk v. Dep’t of Licensing, 123 Wn.2d 120, 124, 864 P.2d 1382 (1994); Kruse v. Hemp, 121 Wn.2d 715, 721, 853 P.2d 1373 (1993); Harris v. Dep’t of Labor & Indus., 120 Wn.2d 461, 468, 843 P.2d 1056 (1993); El Coba Co. Dormitories, Inc. v. Franklin County Pub. Util. Dist., 82 Wn.2d 858, 860, 514 P.2d 524 (1973). Certainly, where interpretation of the Tacoma Municipal Code is integral to resolving the issues before the court, we may do so on review.
Tacoma Municipal Code (TMC) 6.68.060, .070, and .080 are identical to RCW 82.04.070, .080, and .090, respectively.