September 2003 Term
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No. 31239
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B B ENTERPRISE, INC.,
Plaintiff Below, Appellant
v.
JOSEPH M. PALMER,
State Tax Commissioner,
Defendant Below, Appellee
______________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 00-AA-95
REVERSED AND REMANDED WITH DIRECTIONS
_____________________________________________________
AND
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No. 31240
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JDA MANAGEMENT, INC.
Plaintiff Below, Appellant
v.
JOSEPH M. PALMER,
State Tax Commissioner,
Defendant Below, Appellee
______________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 00-AA-96
REVERSED AND REMANDED WITH DIRECTIONS
_____________________________________________________
Submitted: September 24, 2003
Filed: November 14, 2003
|
Christopher S. Smith, Esq. Hoyer, Hoyer, Smith & Miesner, PLLC Charleston, West Virginia Attorney for Appellants
| Darrell V. McGraw, Jr., Esq.
Attorney General Stephen Stockton Sr. Asst. Attorney General Charleston, West Virginia Attorneys for Appellee |
JUSTICE McGRAW delivered the Opinion of the Court.
1. 'Where
the issue on an appeal from the circuit court is clearly a question of law
or involving an interpretation of a statute we apply a de novo standard of
review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415
(1995). Syl. pt. 2, Osborne v. United States, 211 W.Va. 667, 567 S.E.2d 677 (2002).
2. Services which
are subject to the consumers sales and service tax or
use tax under W.Va. Code §§ 11-15-1 et seq. and 11-15A-1 et
seq. include all nonprofessional activities engaged in for other persons
for a consideration, which involve the rendering of a service as distinguished
from the sale of personal property, but shall not include contracting, personal
services or the services rendered by an employee to his or her employer or any
service rendered for resale. W.Va. Code §11-15-2(s). Under
110 C.S.R. §15.33.4.5, consumers sales and service tax shall not apply to, inter
alia, [a] service which is purchased for resale. A service is purchased
for resale when it is subcontracted by the person who is contracted to perform
the service.
3. 'Where
the language of a statute is free from ambiguity, its plain meaning is to be
accepted and applied without resort to interpretation.' Syl. pt. 2, Crockett
v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970). Syl. pt 4, Syncor Int'l Corp. v. Palmer,
208 W.Va. 658, 542 S.E.2d 479 (2001).
McGraw, Justice:
These consolidated cases are before this Court on appeals by B B Enterprise,
Inc. and JDA Management, Inc. (hereinafter collectively referred to as Taxpayers), two
West Virginia corporations which operate exotic show bars and adult entertainment
establishments. The Taxpayers appeal separate orders entered April 25, 2002, in the Circuit
Court of Kanawha County,
(See footnote 1) which required them to pay consumers sales and service tax or
purchasers use tax on special drink and private dance services provided by exotic
dancers hired by the Taxpayers.
For the reasons set forth below, we find that the special drink and private
dance services were purchased by the Taxpayers from the dancers for resale to patrons, the
ultimate consumers of the services. Because services which are purchased for resale are not
subject to tax under W.Va. Code §11-15-2(s) and 110 C.S.R. §15.33.4.5, the West Virginia
State Tax Department's (State Tax Department) assessment of taxes against the Taxpayers
for these services was improper. Accordingly, we reverse the circuit court's orders and
remand these cases to the circuit court for the entry of orders consistent with this opinion.
I .
FACTS
The Taxpayers operate exotic show bars and adult entertainment establishments
which advertise and prominently feature exotic dancing by female dancers. Upon entering
these establishments, patrons pay a cover charge, which entitles them to view floor shows
of the exotic dance performances.
(See footnote 2)
Once inside the establishments, those patrons who elect to purchase a special
drink or a private dance may do so at an extra charge. When a patron purchases a higher-
priced special drink for one of the dancers _ in exchange for some personal attention from
the dancer _ the patron is charged by the Taxpayers the full statutory consumers sales and
service tax of 6%. Likewise, when a patron purchases a private dance, which entitles him
to relocate to a private setting within the bar for a personal performance by one of the
dancers, the Taxpayers collect from the patron the full statutory consumers sales and service
tax of 6%. It is undisputed that in both instances, the collected tax is remitted to the State
Tax Department See W.Va. Code §§11-15-5; 11-15A-5 and 10.
The record reveals that the dancers who provide special drink and private
dance services are independent contractors. Pursuant to the written independent contractor
agreements between the dancers and the Taxpayers, the Taxpayers pay to the dancers some
portion of the purchase price paid by the patron for the special drink and private dance
services provided. The Taxpayers contend the subject services are actually purchased from
the dancers for resale to patrons and, therefore, are not taxable, under W.Va. Code §11-15-
2(s) and 110 C.S.R. §15.33.4.5. The Taxpayers point out that the patrons, as the ultimate
consumers of the dancers' services, pay consumers sales and service tax upon their purchase
of the services. Thus, the State Tax Department's assessment of taxes against the Taxpayers
for these services amounts to an impermissible double tax.
In contrast, it is the State Tax Department's position that the payments to the
dancers by the Taxpayers are taxable because the payment is in the nature of a commission
for the dancers' marketing and sale of higher-priced special drinks; in the case of private
dances, the State Tax Department argues the payment is actually a rental fee paid by the
dancer to the Taxpayers in exchange for a setting within the bar where the dancers may
conduct private performances for patrons.
On November 18, 1998, the State Tax Department issued a purchaser's use tax
assessment against Taxpayer B B Enterprise, Inc., for the period January 1, 1995 through
July 31, 1996, for the total amount of $12,188.00, including interest. Also on that date, the
State Tax Department issued a purchaser's use tax assessment against Taxpayer JDA
Management, Inc., for the period August 1, 1996 through December 31, 1997, for the total
amount of $17,499.00, including interest. In both cases, the Taxpayers timely filed Petitions
for Reassessment.
On April 13, 1999, an administrative hearing concerning both cases
(See footnote 3) was
conducted before Hearing Examiner Nisar A. Kalwar. In orders entered March 31, 2000,
the ALJ affirmed the tax assessments issued against the Taxpayers.
The Taxpayers timely filed Petitions for Appeal in the Circuit Court of
Kanawha County. W.Va. Code §11-10-10.
(See footnote 4)
By orders entered April 25, 2002, the circuit court held that pursuant to W.Va.
Code §11-15-2(s) and 110 C.S.R. §15.33.4.5, the special drink and private dance services
purchased by the Taxpayers from the dancers, and resold to patrons, are services which are
purchased for resale. Though the circuit court recognized services which are purchased for
resale to be exceptions to the consumers sales and service tax, the court nevertheless affirmed
the hearing examiner's decisions; the court held the Taxpayers' purchases of the dancers'
special drink and private dance services are taxable pursuant to another statute, W.Va.
Code §15-11-9(a)(41). Under W.Va. Code §15-11-9(a)(41), sales of artistic performances
of an entertainer to bars and other entertainment facilities are tax exempt if the sale does not
exceed $3,000.00; however, the statute excludes nude dancers or strippers . . . as
entertainers for the purposes of this exemption[.] The circuit court held that W.Va. Code
§11-15-9(a)(41) specifically addresses what the Legislature holds in regard to services
purchased for resale in an entertainment setting and holds that nude or strip show
presentations cannot take advantage of this exemption. Orders of the Circuit Court of
Kanawha County, entered April 25, 2002. It is from these orders that the Taxpayers now
appeal.
(See footnote 5)
II.
STANDARD OF REVIEW
It is well settled that where the facts presented on appeal are undisputed, as in
the instant appeal, and issues before the Court involve a question of law in view of those
facts, our review is de novo. As we held in syllabus point two of Osborne v. United States,
211 W.Va. 667, 567 S.E.2d 677 (2002), '[w]here the issue on an appeal from the circuit
court is clearly a question of law or involving an interpretation of a statute we apply a de
novo standard of review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138,
459 S.E.2d 415 (1995).
III.
DISCUSSION
The issue in this consolidated appeal involves the transaction between the
Taxpayers and the dancers for special drink and private dance services and whether the
Taxpayers' payments to the dancers for these services are taxable. As indicated above, the
circuit court held that the special drink and private dance services purchased by the
Taxpayers from dancers for resale to patrons constitute service[s] which [are] purchased for
resale, and as such, are excepted from the consumers sales and service tax. W.Va. Code
§11-15-2(s) and 110 C.S.R. §15.33.4.5. The court also held, however, that even though the
purchase of the services for resale are an exception to the consumers sales and service tax,
the payments to the dancers are, nevertheless, subject to tax, under W.Va. Code §11-15-9(a)(41). W.Va. Code §11-15-9(a)(41) provides a tax exemption for the sale of artistic
performances under certain circumstances but excludes from the exemption entertainment
provided by nude dancers and strippers.
Though this Court agrees with the circuit court's conclusion that the
Taxpayers' purchases of the dancers' services for resale to patrons are not taxable under
W.Va. Code §11-15-2(s) and 110 C.S.R. §15.33.4.5, we find the court erred in its latter
holding that the purchases are subject to tax under W.Va. Code §11-15-9(a)(41).
A.
W.Va. Code §11-15A-2(a) provides that [a]n excise tax is hereby levied and
imposed on the use in this state of . . . taxable services, to be collected and paid . . . at the rate
of six percent [6%] of the purchase price of such . . . taxable services. . . . 'Taxable services,'
for the purposes of this article, means services of the nature that are subject to the tax
imposed by . . . [§§11-15-1 et seq.]. . . . Id., in relevant part.
(See footnote 6) Importantly, the stated
legislative intent of the subject tax is that it shall be passed on to and be paid by the ultimate
consumer. W.Va. Code §11-15-10, in relevant part (emphasis added). To that end, W.Va.
Code §11-15-2(s) defines taxable service as including all nonprofessional activities engaged in for other persons for
a consideration, which involve the rendering of a service as
distinguished from the sale of tangible personal property, but
shall not include contracting, personal services or the services
rendered by an employee to his or her employer or any service
rendered for resale.
Id. (emphasis added). Likewise, services which are purchased for resale are specifically
excepted from tax, as set forth in 110 C.S.R. §15.33.4.5, which provides:
Enumerated Services Excepted. _ Consumers sales and
service tax shall not apply to any of the following services: . . . .
A service which is purchased for resale. A service is purchased
for resale when it is subcontracted by the person who is
contracted to perform the service[.]
Further, the foregoing legislative rule includes several examples of services
which are purchased for resale and therefore are excepted from consumers sales and service
tax. The facts of the instant cases are analogous to the rule's Example 3, which states:
B owns an auto repair shop and C brings an
automobile in to have the air conditioning fixed.
B is unable to fix the unit so the car is sent to G
who is an air conditioning specialist. The sale of
G's service to B is a sale for resale by B to C.
110 C.S.R. §15.33.4.5, in pertinent part.
To recapitulate, services which are subject to the consumers sales and
service tax or use tax under W.Va. Code §§ 11-15-1 et seq. and 11-15A-1 et seq. include all
nonprofessional activities engaged in for other persons for a consideration, which involve
the rendering of a service as distinguished from the sale of personal property, but shall not
include contracting, personal services or the services rendered by an employee to his or her
employer or any service rendered for resale. W.Va. Code §11-15-2(s). Under 110 C.S.R.
§15.33.4.5, consumers sales and service tax shall not apply to, inter alia, [a] service which
is purchased for resale. A service is purchased for resale when it is subcontracted by the
person who is contracted to perform the service.
In the instant cases, the Taxpayers advertise that their establishments offer
exotic dancing entertainment and, in return for providing such entertainment, the Taxpayers
require patrons to pay a cover charge upon entering. The Taxpayers subcontract the dancing
services to female dancers, who provide floor show performances for the general population
of patrons who pay a cover charge as well as special drink and private dance services
for those patrons who choose to pay for such services. Pursuant to the independent
contractor agreements between the dancers and the Taxpayers, the dancers receive a portion
of the purchase price paid by patrons for these services. Based upon these facts, we find that
the Taxpayers purchase these special drink and private dance services from the dancers
for resale to patrons, who are the ultimate consumers of the services. Upon resale to
patrons, consumers sales and service tax is paid and the collected tax remitted by the
Taxpayers to the State Tax Department. Thus, the special drink and private dance
services purchased from the dancers by the Taxpayers for resale to patrons are excepted
from tax under W.Va. Code §11-15-2(s) and 110 C.S.R. §15.33.4.5.
B.
While this Court agrees with the circuit court's April 25, 2002 orders to the
extent the court held the special drink and private dance services are purchased for
resale to patrons and are not taxable under W.Va. Code §11-15-2(s) and 110 C.S.R.
§15.33.4.5, the issue of whether the court properly affirmed the tax assessed under W.Va.
Code §11-15-9(a)(41) remains. The Taxpayers contend that, by its own language, W.Va.
Code §11-15-9(a)(41) is simply not applicable to the transactions at issue. We agree.
We have long held that '[w]here the language of a statute is free from
ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.'
Syl. pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970). Syl. pt 4, Syncor
Int'l Corp. v. Palmer, 208 W.Va. 658, 542 S.E.2d 479 (2001). See State ex rel. Riffle v.
Ranson, 195 W.Va. 121, 126, 464 S.E.2d 763, 768 (1995) ('the starting point in every case
involving construction of a statute is the language of the statute itself.' (Internal citation
omitted)).
W.Va. Code §11-15-9(a) authorizes a tax exemption on the sale of certain
services and tangible personal property. More specifically, W.Va. Code §11-15-9(a)(41)
exempts, inter alia,
The language of W.Va. Code §11-15-9(a)(41) is clear and unambiguous. The
$3,000.00 artistic service and performance exemption provided therein expressly excludes
nude dancing from the exemption: For the purposes of this exemption, artistic performance
or artistic service . . . does not include . . . nude or strip show presentations. . . . Provided
further, That nude dancers or strippers may not be considered as entertainers for the
purposes of this exemption[.] Id., in relevant part. Clearly then, the patrons' purchase from
the Taxpayers of special drink and private dance services provided by the exotic dancers
are expressly not entitled to the exemption provided in W.Va. Code §11-15-9(a)(41).
Indeed, it is undisputed that the full statutory consumers sales and service tax is paid by
patrons upon their purchase of these services.
The transaction at issue, on the other hand, involving the Taxpayers' purchase
from the dancers of special drink and private dance services for resale to patrons, is
another matter. Despite W.Va. Code §11-15-9(a)(41)'s plain language, the circuit court
concluded the statute specifically addresses what the Legislature holds in regard to services
purchased for resale in an entertainment setting and holds that nude strip show presentations
cannot take advantage of this exemption. April 25, 2002 Orders, in part. (Emphasis added)
We find this conclusion to be wholly unsupported by the clear and unambiguous language
of the statute. As already established, the Taxpayers' purchase of special drink and
private dance services from the dancers, for resale to patrons, is an exception to the
consumers sales and service tax under W.Va. Code §11-15-2(s) and 110 C.S.R. §15.33.4.5.
Nothing in the plain language of the exemption set forth in W.Va. Code §11-15-9(a)(41)
abrogates or otherwise affects the exception to which the Taxpayers are entitled under W.Va.
Code §11-15-2(s) and 110 C.S.R. 15.33.4.5. Thus, the circuit court's conclusion to the
contrary was reversible error. IV. CONCLUSION
For the reasons stated, the April 25, 2002 Orders of the Circuit Court of
Kanawha County are reversed and these cases are remanded to the circuit court with
directions to enter orders in both cases consistent with this opinion. The April 25, 2002 orders entered in these cases are virtually identical except with
regard to the assessment period and the amount of taxes assessed against each Taxpayer. See
Section I, infra.
It is undisputed that the Taxpayers charge patrons the full statutory consumers sales
and service tax of six percent (6%) on the cover charge; the collected tax is then remitted to
the State Tax Department See W.Va. Code §§11-15-5; 11-15A-5 and 10.
Mr. Joseph Anania appeared at the April 13, 1999 hearing as the president and a
stockholder of both Taxpayers, as well as of a third taxpaying entity, R & J Club Platinum
No. 1. Though a party to the administrative proceeding, it appears that the appeal taken by
R & J Club Platinum was heard separately. Consequently, the tax matter involving R & J
Club Platinum is not part of the instant appeal.
According to the parties, the instant cases share a single stipulated record with and
are factually identical to five other cases either pending in the Circuit Court of Kanawha
County or already resolved by that court. Notably, one of those cases, W & R
Corp., d/b/a
Shockers Lounge v. Palmer, Civil Action No. 00-AA-199, was resolved in favor of the
Taxpayer, by order entered December 17, 2001. The State Tax Department's Petition for
Appeal from that order was refused by this Court by order entered October 30, 2002.
The Taxpayers filed Petitions for Appeal from the circuit court's orders, which
petitions were refused by orders entered February 13, 2003. The Taxpayers filed motions to
renew their respective petitions for appeal, which were ultimately granted by orders entered
March 27, 2003.
W.Va.
Code §11-15-1 et seq., concerning the consumers sales and service tax, and
W.Va. Code §11-15A-1 et seq., concerning the use tax, are complementary laws and
wherever possible [are to] be construed and applied to accomplish such intent as to the
imposition, administration and collection of such taxes. W.Va. Code §§11-15-1a and 11-
15A-1a.
sales of . . . artistic services or artistic performances of an
entertainer or performing artist pursuant to a contract with the
owner or operator of a . . . bar, tavern . . . or other entertainment
facility . . . in which the public or a limited portion of the public
may assemble to . . . see . . . artistic works be performed . . .
when the amount paid by the owner or operator for the artistic
service or artistic performance does not exceed three thousand
dollars [$3,000.00]: . . . . For the purposes of this exemption,
artistic performance or artistic service . . . does not include . .
. nude or strip show presentations. . . . Provided further, That
nude dancers or strippers may not be considered as entertainers
for the purposes of this exemption[.]
Id., in relevant part. (Emphasis added)