Canteen Corp. v. Goldberg

DONNELLY, Judge.

This appeal involves assessment of taxes under the provisions of the Sales Tax Law (§§ 144.010 to 144.510, RSMo 1969). We have jurisdiction because the case involves “the construction of the revenue laws of this state * * Mo.Const. art. V, § 3.

On February 10, 1977, the Director assessed additional tax in the total amount of $38,231.78, including interest, against Canteen. On March 21, 1977, Canteen filed a Petition for Reassessment with the Director and paid the assessment of $38,231.78 under protest. On May 17, 1977, a hearing was held by a hearing officer of the Department of Revenue. On March 10, 1978, Canteen’s Petition for Reassessment was denied. On April 6, 1978, Canteen filed a Petition for Judicial Review “in the manner provided by chapter 536, RSMo” in the Circuit Court of St. Louis County under the authority of § 144.261, RSMo 1969. (Cf. § 144.261, RSMo 1978, effective August 13, 1978, which provides for appeal from the Director under § 161.273, RSMo 1978, and for judicial review under §§ 161.337 and 161.338, RSMo 1978.)

On December 28, 1978, the Honorable Drew W. Luten, Judge of the St. Louis County Circuit Court, set aside and abated *756the assessment of $38,231.78, ordered the Director to refund to Canteen the taxes paid under protest together with all interest earned thereon from March 21, 1977, and ordered the Director to pay the costs. The Director appealed to this Court.

The first issue on appeal compels a construction of § 144.010, RSMo 1969, which provides, in part, that “ ‘Sales at retail’ means any transfer made by any person engaged in business as defined herein of the ownership of, or title to, tangible personal property to the purchaser, for use or consumption and not for resale in any form as tangible personal property, for a valuable consideration * * *

Canteen operated a dining facility for the residents of Council Plaza, a retirement home. Canteen rented space from Council Plaza and was in charge of the actual serving of meals to the retirees. Canteen billed Council Plaza monthly for the number of meals served, at a predetermined price per meal. Council Plaza in turn billed the retirees for their meals at a price fixed by Council Plaza. Council Plaza was legally obligated to pay Canteen for the meals whether or not Council Plaza received payment. This operation accounts for $18,-453.53 of the total additional assessment.

The trial court found that the Canteen-Council Plaza operation involved two transactions: (1) sale by Canteen to Council Plaza of meals for resale, and (2) resale of the meals by Council Plaza to the retirees. We agree. We are cited to no case directly in point and have found none. In Berry-Ko-fron Dental Laboratory Co. v. Smith, 345 Mo. 922, 137 S.W.2d 452 (1940), this Court sought to define a “sale at retail.” We need not approve or disapprove the Berry-Kofron language. A general rule, other than the language of § 144.010, supra, may serve no useful purpose. In this case, the meals were sold by Canteen to be eaten by the retirees. There was no “sale at retail” by Canteen to Council Plaza. The trial court did not err in ruling this issue.

The second issue on appeal compels an application of § 144.020, RSMo 1969, which imposes upon “every retail sale in this state of tangible personal property a tax equivalent to three percent of the purchase price paid * *

This issue involves sales tax on receipts from coin-operated vending machines placed by Canteen in Missouri. This operation accounts for $19,122.45 of the total additional assessment.

An example of the operation is the sale of a candy bar from a vending machine for twenty-five cents. Canteen would contend it was charging twenty-four cents for the candy bar and collecting one cent sales tax. The Director would contend that § 144.020, supra, imposes the tax on twenty-five cents. The Director points to § 144.080.5, RSMo 1969, which makes it unlawful for any person to “hold out” that sales tax “will not be separately stated and added to the selling price of the property sold * * *.” We are unable to discern, with any degree of certainty, which, if any, regulations were in effect during the period of assessment involved in this case.

“It is well established that the right of the taxing authority to levy a particular tax must be clearly authorized by the statute, and that all such laws are to be construed strictly against such taxing authority.” State ex rel. Ford Motor Co. v. Gehner, 325 Mo. 24, 29, 27 S.W.2d 1, 3 (banc 1930).

Section 144.010, supra, provides that for the purposes of the Sales Tax Law, the “amount of the sale price [which is taxed] * * * shall be deemed to be the amount received.” (Emphasis added). In our view, the teaching of Gehner, supra, as applied to this case, is that “the amount received” by Canteen in the candy bar example, supra, was twenty-four cents. To hold otherwise would be to give § 144.080.5, supra, an effect not clearly intended and would be to reach a result not supported by the evidence. The trial court did not err in ruling this issue.

The third issue on appeal involves the action of the trial court in ordering the Director to pay court costs. Canteen concedes the error.

*757The fourth issue on appeal involves the action of the trial court in ordering the Director to refund to Canteen “all interest earned [on the sales taxes paid under protest] * * * from March 21, 1977 * (Emphasis added).

In Southwestern Bell Telephone Co. v. Feuerstein, 529 S.W.2d 371 (Mo.1975), a case involving real estate taxes in St. Charles County, this Court held that a taxpayer is entitled to interest earned on impounded funds. In International Business Machines Corporation v. State Tax Commission, 362 S.W.2d 635, 641 (Mo.1962), this Court denied the allowance of interest on refunds, noting “there is no provision in the sales tax act for the payment of interest on refunds.” The Court did not address the question of interest earned on refunds.

We decline to expand the Feuerstein holding to the Sales Tax Law. On the record before us, we cannot anticipate the practical effect of such a holding.

The judgment of the trial court is affirmed on the first and second issues and reversed and remanded on the third and fourth issues.

RENDLEN, WELLIVER, MORGAN and HIGGINS, JJ., concur. SEILER, J., concurs in part and dissents in part in separate opinion filed. BARDGETT, C. J., dissents in separate dissenting opinion filed.