ACCEPTED 03-14-00397-CV 3783258 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/15/2015 2:06:00 PM JEFFREY D. KYLE CLERK No. 03-14-00397-CV _______________________________________________ FILED IN 3rd COURT OF APPEALS In the Court of Appeals AUSTIN, TEXAS For the Third Judicial District 1/15/2015 2:06:00 PM Austin, Texas JEFFREY D. KYLE Clerk _______________________________________________ AMERICAN MULTI-CINEMA, INC.
Appellant & Cross-Appellee, v. GLENN HEGAR, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND KEN PAXTON, ATTORNEY GENERAL OF THE STATE OF TEXAS
Appellees & Cross-Appellants. _______________________________________________ ON APPEAL FROM THE 200TH DISTRICT COURT, TRAVIS COUNTY, TEXAS TRIAL COURT CAUSE NO. D-1-GN-12-003831 _______________________________________________
APPELLANT’S REPLY BRIEF _______________________________________________ Mark W. Eidman RYAN LAW FIRM, LLP Texas Bar No. 06496500 100 Congress Avenue, Suite 950 Mark.Eidman@RyanLawLLP.com Austin, Texas 78701 512.459.6600 Telephone Doug Sigel 512.459.6601 Facsimile Texas Bar No. 18347650 Doug.Sigel@RyanLawLLP.com Counsel for Appellant
Olga Goldberg Texas Bar No. 24083081 Olga.Goldberg@RyanLawLLP.com
January 15, 2014 5 Table of Contents
Table of Contents .......................................................................................... ii Table of Authorities ...................................................................................... iv Appendix ....................................................................................................... v Reply to Appellees’ Statement of the Case .....................................................1 Reply to Appellees’ Issue Presented ............................................................... 1 Argument ...................................................................................................... 2 I. The phase two trial court disregarded conclusive evidence that establishes AMC’s sight and sound production process. ................... 2 II. This Court should not ignore the plain language of the Tax Code and the evidence presented at trial in favor of the Comptroller’s “common knowledge” argument. ............................... 7 A. AMC’s sight and sound production process is not “common knowledge.” The Comptroller’s common knowledge argument is not evidence. ........................................ 8 B. There is no support in the Tax Code for the Comptroller’s attempt to bifurcate AMC’s production space and consumption space. ................................................................... 11 C. Because Tax Code § 171.1012(a)(2) expressly defines “production” to include “improvement,” AMC’s improvements to the film’s sight and sound are part of the film production process. ............................................................13 III. The Comptroller’s arguments regarding stipulated issues—the costs at issue and the Comptroller’s calculations—are wholly irrelevant to AMC’s appeal. .............................................................. 15 A. Comptroller’s argument regarding the costs at issue ignores the parties’ stipulation and contradicts Texas law........16 B. The Comptroller’s argument regarding its calculations ignores the stipulation and is no substitute for conclusive trial evidence. ............................................................................19
Appellant’s Reply Brief – Page ii Conclusion and Prayer ................................................................................ 19 Certificate of Compliance ............................................................................ 21 Certificate of Service.................................................................................... 21
Appellant’s Reply Brief – Page iii Table of Authorities
CASES American Tobacco Co. v. Grinnel, 951 S.W.2d 420 (Tex. 1997) .................................................................. 8, 9 Bell Helicopter Textron, Inc. v. Combs, No. 03-10-00764-CV, 2011 WL 6938491 (Tex. App.—Austin Dec. 29, 2011, no pet.) ............................................................................................ 3 Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753 (Tex. 2014) ..................................................................... 9 Bonebrake v. Dep’t of Revenue, 15 Or. Tax 244 (2000) .............................................................................. 8 Buckeye Retirement Co. v. Bank of America, N.A., 239 S.W.3d 394 (Tex. App.—Dallas 2007) ............................................. 18 Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632 (Tex. 2013) ................................................................... 12 First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 2008)..................................................................... 3 H.K. Global Trading, Ltd. v. Combs, 429 S.W.3d 132 (Tex. App.—Austin, pet. denied) ............................. 15, 18 Haddock v. Arnspiger, 793 S.W.2d 948 (Tex. 1990) ..................................................................... 9 People v. McCabe, 266 N.Y.S. 363 (N.Y. Sup. Ct. 1933) ......................................................... 8 Tijerina v. Boletto, 207 S.W.2d 136 (Tex. Civ. App.—Austin 1947, no writ) ......................... 18 TracFone Wireless, Inc. v. Comm’n on State Emergency Commn’cs, 397 S.W.3d 173 (Tex. 2013) .................................................................2, 12 STATUTES Tex. Tax Code § 171.1012 (West 2008) ................................................. passim
Appellant’s Reply Brief – Page iv RULES Tex. R. Evid. 201............................................................................................ 9 OTHER AUTHORITIES BLACK’S LAW DICTIONARY (10th ed. 2014) ....................................................... 8 NEW OXFORD AMERICAN DICTIONARY (3rd ed. 2010) .................................... 12 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002) ......................... 13
Appendix
7. Supplemental Stipulation of Facts (Phase Two)
Appellant’s Reply Brief – Page v Reply to Appellees’ Statement of the Case
AMC refers the Court to the Statement of the Case in its Appellants’
Brief. AMC’s disagreement with the Comptroller’s description of the trial
court’s disposition of the case—which appears in both the Appellees’ Brief
and the Cross-Appellants’ Brief—is outlined in AMC’s Response to Cross-
Appellants’ Statement of the Case in AMC’s Cross-Appellee’s Brief.
Reply to Appellees’ Issue Presented
AMC disagrees with the Comptroller’s Issue Presented regarding
phase two of the trial because the Comptroller improperly attempts to
narrow the issue in AMC’s appeal by asking the Court to determine that
AMC’s product is produced “in” specific equipment. (See Appellees’ Brief at
v.). The Tax Code, and not the Comptroller’s assertions, dictate the scope
and nature of the issue presented.
The Tax Code specifically and broadly defines the term “production”
for purposes of the cost of goods sold (“COGS”) subtraction in Tax Code
§ 171.1012. 1 Under section 171.1012, AMC is permitted to include certain
direct costs of producing the goods it sells to its customers. Because the
parties agree as to the majority of the production costs, the disputed issue--
1“CR” refers to the clerk’s record. “P1, __ RR” refers to the reporter’s record from phase one. “P1, __ RR” and “P2, __ RR” refer to the reporter’s records from phase one and phase two, respectively. “Tab” refers to this brief’s appendix. Unless noted otherwise, “Tax Code” and “section” refer to their respective provisions of the Texas Tax Code in effect during the period in issue (Report Years 2008 and 2009).
Appellant’s Reply Brief – Page 1 which is the subject of AMC’s appeal of phase two--is the percentage of
movie theatre auditorium space used in the production of AMC’s film
product.
Argument
I. The phase two trial court disregarded conclusive evidence that establishes AMC’s sight and sound production process.
The phase two trial court’s erroneous conclusion of law no. 3 outlines
the phase two court’s sole basis for its ruling:
Interpretations given to statutes by state agencies are entitled to deference when, as here, a tax [un]arguably applies and the court is weighing competing interpretations of the amount owed. The Comptroller’s interpretation of the amount owed in the present case is reasonable under the plain language of Section 171.1012, Tax Code.
(Supp. CR 29.) In a letter to the parties, Judge Naranjo—who presided over
the trial of phase two—made explicit that she ruled for the Comptroller
based only on what she believed to be the Comptroller’s interpretation in a
dispute involving the calculation of tax. 2
2In the letter enclosing its final judgment, the phase two trial court “thought it would be helpful to the parties to explain the basis of its ruling.” (Supp. CR 33.) “In reaching its decision the Court relied on TracFone Wireless . . . which states that the interpretations given to statutes by state agencies are entitled to deference when, as here, ‘a tax unarguably applies and the court is weighing competing interpretations of the amount owed.’” (Id.) See TracFone Wireless, Inc. v. Comm’n on State Emergency Commn’cs, 397 S.W.3d 173, 183 (Tex. 2013). The trial court’s asserted support for its ruling is reflected in erroneous conclusion of law no. 3. (Supp. CR 29.)
Appellant’s Reply Brief – Page 2 The phase two ruling got it completely wrong. As outlined in the
Appellant’s Brief, there was no dispute over the calculation of tax in the
trial of phase two. 3 (Appellant’s Brief at 25-26.) The parties stipulated to
each side’s competing calculation of AMC’s tax refund in order to
streamline the trial of phase two. (CR 228-33.) Judge Naranjo should have
adopted one party’s stipulated refund amount calculation only if that party
prevailed on the substantive question of law raised by the Tax Code
definition, as applied to AMC’s facts. In other words, Judge Naranjo was
required to determine, under the definition of “production” in Tax Code
§ 171.1012(b), where exactly does AMC’s production process occur?
The Comptroller’s brief strangely rejects the phase two trial court’s
only justification for her ruling. The Comptroller agrees with AMC that this
Court “need not afford any deference to the agency or the agency’s counsel”
because the Comptroller’s litigation position in this case is categorically not
formal agency policy. (Appellees’ Brief at 10 n.3.) The Comptroller urges—
and AMC agrees—that “[t]he judgment should be upheld if there exists
3 This Court has ruled on cases actually involving calculation disputes, which did not implicate underlying substantive questions of law. See Bell Helicopter Textron, Inc. v. Combs, No. 03-10-00764-CV, 2011 WL 6938491, *3-5 (Tex. App.—Austin Dec. 29, 2011, no pet.) (in a taxpayer challenge to the Comptroller’s methodology for calculating the interest on its tax refund, this Court deferred to the Comptroller’s calculations); see also First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 2008) (deferring to Comptroller’s formally-promulgated rule requiring new method of calculating retaliatory tax). Conversely, AMC’s appeal does not challenge the Comptroller’s method of calculating AMC’s refund; AMC vigorously challenges the Comptroller’s litigation position interpreting the Tax Code definition of “production” as applied to AMC.
Appellant’s Reply Brief – Page 3 factually sufficient evidence supporting the trial court’s affirmative
findings. In other words, [AMC’s] appeal presents a straightforward
application of [section] 171.1012 to the record before this [C]ourt.” (Id.) In
reality, there is no evidence, much less factually sufficient evidence, in the
record supporting the Comptroller’s position. The only evidence regarding
AMC’s film production process—Huerta’s testimony—directly contradicts
the Comptroller’s unsupported assertions and conclusively establishes
AMC’s position. There is thus no basis in the record on which to affirm the
phase two court’s judgment.
In phase one of trial, Judge Byrne ruled that AMC is entitled to
include its costs to exhibit films in its COGS subtraction when calculating
its franchise tax. (CR 97; Supp. CR 27.) The court found, based on the
evidence and testimony, that AMC’s product—the film sight and sound
experience—is “tangible personal property” as defined in Tax Code
§ 171.1012(a)(3)(A)(i). (Supp. CR 30.) AMC’s customers purchase a
product that can be seen, heard, and is perceptible to the senses. 4 The
evidence alternatively proved that AMC’s product is a film, which is
“tangible personal property” under section 171.1012(a)(3)(A)(ii).
(Appellant’s Brief at 4-6, 13-22.) This is an independent basis supporting
4 See Tex. Tax Code § 171.1012(a)(3)(A)(i).
Appellant’s Reply Brief – Page 4 Judge Byrne’s ruling and is extensively briefed in the Cross-Appellee’s
Brief. (See Cross-Appellee’s Brief at 13-22.)
A taxpayer that sells tangible personal property in the ordinary course
of business is entitled to subtract its direct production costs as COGS. 5 Tax
Code § 171.1012(a)(2) specifically and unambiguously defines “production”
as including
construction, installation, manufacture, development, mining, extraction, improvement, creation, raising, or growth.
(Emphasis added.) The costs at issue in AMC’s appeal are those related to
the facilities AMC used to produce its product. Only costs related to
facilities used directly in production may be subtracted under section
171.1012. The central question in phase two of trial was thus, where does
AMC produce its film product?
The answer to this specific question determines the portion of
allowed costs specifically listed in the statute, such as facilities rent, real
estate taxes, building depreciation, utilities, and insurance.6 Therefore, the
parties stipulated to the percentages of AMC’s costs applicable to each
party’s competing theory of the case based upon square footage. This
5 See Tex. Tax Code § 171.1012(a)(1), (c), (d), & (o). 6 Tax Code §§ 171.1012(c)(7), (d)(6), (d)(8) and (o).
Appellant’s Reply Brief – Page 5 appeal involves the disputed issue of the amount of the square footage of
the movie theatre auditorium used to produce AMC’s film product.
Huerta’s testimony, based on decades of expertise, conclusively
established that the entire movie theatre auditorium is used to produce
AMC’s product. (P2, 1 RR 37-38.) The Comptroller argued—without
support—that only the square footage occupied by the projector, screen and
speakers is used to produce the product. The Comptroller presented no
evidence or testimony. (P2, 1 RR 22.)
What are the true facts regarding the production process as proven by
the actual evidence, Huerta’s testimony? The auditorium itself is a
production stage that is vital to the production of AMC’s film product—
premium motion picture sight and sound experience. (P2, 1 RR 37-69. 7)
The lighting and sound in this specific experience must be specifically and
meticulously calibrated to each unique auditorium space to manufacture
the quality product that AMC’s customers demand. (P2, 1 RR 52-53.) The
auditorium functions as an acoustic chamber and sound equalization and
screen brightness are frequently adjusted as part of a process that is
carefully designed to improve upon the films AMC receives from its studio
partners. (P2, 1 RR 41, 51-53, 67-68.) If any of the precise visual and
7At trial of phase two, Huerta emphatically referred to AMC’s “premium” product, underscoring the importance of quality to the sight and sound experience sold to AMC’s customers. (P2, 1 RR 42.)
Appellant’s Reply Brief – Page 6 acoustic elements in the auditorium is off balance, the result can be
disastrous and AMC will be unable to produce the superior sight and sound
product its customers demand. (P2, 1 RR 51-52, 67-68.)
Huerta’s testimony conclusively proved that without the state of the
art auditorium production environment, AMC could not produce the sight
and sound experience it sells to its customers. The Comptroller offered no
evidence on this point. There is therefore nothing in the record that
contradicts Huerta’s testimony that production occurs in the entire
auditorium. The Comptroller’s appeals to “common knowledge” facts are
not evidence and wholly disregard both conclusive evidence and the Tax
Code’s definition discussed above. There is no basis for the phase two trial
court’s judgment, and AMC asks the Court to reverse the phase two ruling.
II. This Court should not ignore the plain language of the Tax Code and the evidence presented at trial in favor of the Comptroller’s “common knowledge” argument.
AMC vigorously disagrees with the Comptroller’s simplistic “common
knowledge” argument. Common knowledge is not a reason to affirm a trial
judge who disregarded the evidence. The Comptroller’s simplistic and
unsupported explanations that mischaracterize AMC’s highly technical
production process are not evidence and in fact plainly disregard both
conclusive evidence in this case and the unambiguous language of the
Appellant’s Reply Brief – Page 7 “production” definition in Tax Code § 171.1012(a)(2).
A. AMC’s sight and sound production process is not “common knowledge.” The Comptroller’s common knowledge argument is not evidence.
The Comptroller asks this Court to disregard conclusive evidence in
favor of the Comptroller’s unsupported factual assertions about “common
knowledge.” But common knowledge is not evidence. See Bonebrake v.
Dep’t of Revenue, 15 Or. Tax 244, 245 (2000) (ruling Taxpayer’s claim that
building costs are “common knowledge” was not evidence); People v.
McCabe, 266 N.Y.S. 363, 367 (N.Y. Sup. Ct. 1933) (holding that
prosecutor’s “common knowledge” basis for the accusations against a
defendant was not evidence). And the Comptroller’s disregard for the trial
record, which conclusively establishes the facts regarding AMC’s
production process, cannot support affirming the phase two trial court’s
erroneous judgment.
Black’s Law Dictionary defines “common knowledge” as “[a] fact that
is so widely known that a court may accept it as true without proof.”
BLACK’S LAW DICTIONARY 334 (10th ed. 2014); see also American Tobacco
Co. v. Grinnel, 951 S.W.2d 420, 427 (Tex. 1997) (“common knowledge
encompasses only those things so patently obvious and so well known to
the community generally, that there can be no question or dispute
Appellant’s Reply Brief – Page 8 concerning their existence”) (internal quotations omitted).8 For matters
outside the layperson’s common knowledge, courts require evidence. 9 The
average layperson has no common knowledge of AMC’s sight and sound
production, as established by Huerta’s testimony during trial.
The Comptroller’s counsel and most lay people have the knowledge of
a moviegoer, a purchaser of a movie theatre’s sight and sound experience.
(See Appellees’ Brief at 12.) Most people know that a movie theatre has
seats, that a film is projected onto a screen, and that there are speakers that
play a soundtrack.
But a person’s superficial experience of a film’s sight and sound
imparts absolutely no knowledge of the technical, complex method by
which the sight and sound experience is produced. AMC’s film production
8 The Comptroller’s so called “common knowledge” facts are not properly in the trial record. The Comptroller did not ask the phase two trial court to take judicial notice of any common knowledge facts, nor did the court do so on its own. Under Tex. R. Evid. 201(b), a court may take judicial notice of an adjudicative fact only if the fact is “one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” AMC’s technical film production process is not generally known, and the Comptroller presented no evidence to support the supposed common knowledge facts. 9 See Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 761 (Tex. 2014) (expert testimony
required regarding use of a medical instrument in a medical procedural because such use “is not a matter plainly within the common knowledge of laymen”); American Tobacco, 951 S.W.2d at 430 (“we cannot simply assume that common knowledge of the general health risks of tobacco use naturally includes common knowledge of tobacco’s addictive quality”); Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990) (doctrine of res ipsa loquitur (“the thing speaks for itself”) does not apply “when the use of the mechanical instrument is not a matter within the common knowledge of laymen”).
Appellant’s Reply Brief – Page 9 process is highly specialized and continually evolves with technology. 10
AMC’s technology, for example, is always improving, from the
implementation of digital and multidimensional audio, to digital
projection, to improvements to screen, amplifier, and projector technology.
(P2, 1 RR 38.) A lay moviegoer has no knowledge of these technologies or
the “dozens and dozens of different technical elements” required to produce
AMC’s sight and sound product. (P2, 1 RR 49-50.)
The phase one trial court correctly ruled that AMC’s sight and sound
product is tangible personal property that can be seen and is perceptible to
the senses. But a moviegoer who perceives AMC’s film experience
nevertheless has no insight into how AMC produces that product. (Cf.
Appellees’ Brief at 12 (“The audience perceives the movie coming from the
screens and the speakers, not the seats, floors, armrests, or the aisles. To
be sure, the auditorium can affect the quality of the sight and sound. . . . But
that doesn’t have anything to do with where the ‘good’ is ‘produced.’”).)
The Comptroller’s belief that a person who has experienced a film in a
theatre understands how that film is produced is akin to a belief that a
person who has eaten a gourmet meal knows exactly how that meal was
prepared. Or, similarly, a belief that a person who has pumped gasoline at
10For example, Huerta has a degree in electrical engineering technology and has served in technical roles dedicated to fixture of facilities, technical systems, digital systems, new technology, and sight and sounds. (P2, 1 RR 37-38).
Appellant’s Reply Brief – Page 10 a gas station understands the highly technical oil and gasoline production
process. Merely experiencing a product does not give the average lay
consumer insight into the product’s production process or make the process
common knowledge.
The production process established by Huerta’s testimony is not
within the layperson’s common knowledge. The Comptroller’s vastly
oversimplified opinion of the film sight and sound production process is
not evidence, is not properly in the record, and provides no support for the
phase two trial court’s judgment. AMC asks this Court to reverse the trial
court’s phase two ruling.
B. There is no support in the Tax Code for the Comptroller’s attempt to bifurcate AMC’s production space and consumption space.
The Comptroller asks this Court to create a false dichotomy wholly
unsupported by the Tax Code: assuming that AMC’s product is produced in
one space, AMC’s customers must then consume that product in a different
space. (Appellees’ Brief at 2.)
To that end, the Comptroller analogizes to a restaurant, in which food
production and food consumption areas are, in fact, located in two separate
areas. (Id. at 13.) But the restaurant analogy tells the Court nothing about
how AMC’s product is produced. As Huerta explained at trial, a restaurant
Appellant’s Reply Brief – Page 11 customer sitting in a dining room simply orders and consumes the food
that was produced or prepared in the kitchen. (P2, 1 RR 54-55).
Conversely, in a movie theatre auditorium, AMC is “certainly creating [the
product] not just from an ambiance perspective, but . . . from an acoustical
integrity, design and technical perspective,” often at the same time that
AMC’s customers consume11 the product in the same auditorium. (Id.)
There is nothing in Tax Code § 171.1012 that requires a space to be
used solely for production or consumption of goods for purposes of COGS.
Huerta’s testimony established that AMC’s movie theatre auditoriums are
used for both production and consumption. Texas courts have rejected the
Comptroller’s repeated attempts to impose extra-statutory requirements on
unambiguous statutory provisions. See Combs v. Roark Amusement &
Vending, L.P., 422 S.W.3d 632, 637 (Tex. 2013) ; TracFone Wireless, 397
S.W.3d at 183. AMC asks the Court to reject the Comptroller’s attempts to
expand his taxing authority by improperly narrowing statutorily-granted
exclusions from tax.
11The plain meaning of “consumption” includes “the reception of information or entertainment, esp. by a mass audience.” NEW OXFORD AMERICAN DICTIONARY 373 (3rd ed. 2010).
Appellant’s Reply Brief – Page 12 C. Because Tax Code § 171.1012(a)(2) expressly defines “production” to include “improvement,” AMC’s improvements to the film’s sight and sound are part of the film production process.
The Comptroller asks this Court to ignore that Tax Code
§ 171.1012(a)(2) explicitly defines “production” to include “improvement.”
Appellees’ Brief claims incongruously that the “quality of the auditorium,”
as well as the “quality of the sight and sound” are irrelevant to the Court’s
determination of AMC’s production space. (Appellees’ Brief at 12.) The
plain language of the Tax Code mandates the opposite conclusion.
The ordinary meaning of “improve,” is “to enhance in value or
quality.”12 Thus, production occurs wherever improvement occurs. As
Huerta testified, AMC substantially improves, or enhances the quality of,
the film product in the movie theatre auditorium:
Certainly, we improved on what we’re originally provided by our studio partners because if we did not, if you were to go to one of our theatres and that auditorium did not have an auditorium specific sound EQ or equalization, the dialogue would not be as intelligible, the surround coverage and the associate of what we call SPLs or sound pressure level, some of them would be too loud; some of them would be too high or hot as we call it. You might not have enough low frequency. . . . Now, on the visual side, we do it specific to the screen type. . . . Everything has to be combined and that combination is what really creates the unique auditorium specific entertainment experience.
12 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1138 (2002) (emphasis added).
Appellant’s Reply Brief – Page 13 (P2, 1 RR 47-48.) AMC sells the resulting superior motion picture sight and
sound experience to its customers. Without the improvements performed
in the movie theatre auditorium, sound would be muddled, sight would be
distorted, and theatre fixtures could rattle. (P2, 1 RR 51-52, 68.) AMC
would have no product without improving the quality of the raw material—
the film reel rented from the movie studio—as part of its production
process.
For the same reason, the Comptroller’s analogies to a movie viewed at
home, on a smart phone, or at a drive-in theatre are unhelpful to the Court
and were rejected by Huerta. (See Appellees’ Brief at 13.) These analogies
tell the Court nothing about AMC’s specific cutting-edge sight and sound
production in a movie theatre. In each scenario, the movie viewer does not
experience the improved film product AMC produces in its movie theatre
auditoriums. Huerta explained that these spaces lack the AMC auditorium
“controlled environment with multi dimensional surround audio” or the
“controlled acoustical environment . . . where you have audio that is
equalized specifically for that space, which basically results in the best
quality of sight and sound.” (P2, 1 RR 39-40, 54.) The production, or
improvement, that occurs in each AMC auditorium, is missing from the
Comptroller’s clumsy analogies.
Appellant’s Reply Brief – Page 14 III. The Comptroller’s arguments regarding stipulated issues—the costs at issue and the Comptroller’s calculations—are wholly irrelevant to AMC’s appeal.
The Appellees’ Brief wrongly brings two un-appealed and undisputed
issues before the court: (1) whether AMC can include the costs listed in Tax
Code § 171.1012(o) in its COGS subtraction; and (2) whether the
Comptroller’s calculation in phase two of the trial—specifically, his estimate
that AMC is entitled to include 1.56% of movie theatre auditorium space in
COGS—is in dispute. (Appellees’ Brief at 5-6, 9.)
The parties entered into a pretrial stipulation (Tab 7). The parties
agreed to both the types of costs allowed and to both parties’ refund
calculations, with the sole dispute remaining as to which side’s argument
on the allowable costs is correct. (CR 228-33.) The stipulation was
accepted by the phase two trial court. (Supp. CR 28-29.) The Comptroller’s
arguments on matters not in dispute are wholly inapposite to AMC’s appeal
and should be disregarded by the Court. 13
13The Comptroller’s phase two Appellees’ Brief seeks to confuse the issues on appeal by infusing the Comptroller’s waiver argument from his phase one Cross-Appellants’ Brief. As outlined in AMC’s Cross-Appellee’s Brief, as the prevailing party in phase one, AMC was not required to appeal the trial court’s favorable judgment. (Cross-Appellee’s Brief at 15-17.) Further, the phase one trial court was not required to “set out in detail every reason or theory” that led it to rule in AMC’s favor. H.K. Global Trading, Ltd. v. Combs, 429 S.W.3d 132, 141 (Tex. App.—Austin, pet. denied) (internal quotations omitted). The Comptroller’s waiver argument is irrelevant to AMC’s appeal of phase two and unavailing in the Comptroller’s appeal of phase one.
Appellant’s Reply Brief – Page 15 Notably, AMC’s desire to streamline the trial by stipulating to the
Comptroller’s refund calculation to be used, if the trial court accepted the
Comptroller’s theory did not relieve the Comptroller from putting on
evidence to support his assertion that AMC’s film production space was
limited to the movie theatre screens, speakers, and projection room. The
parties’ stipulation does not excuse Comptroller’s failure to put on any
evidence on the disputed issue that AMC produces its film sight and sound
experience. Nor is the stipulation a legitimate reason for this Court to rule
in favor of the Comptroller’s position based on assertions about common
knowledge. This Court should decide based on the on-point testimony of
Huerta, which was the only evidence of AMC’s highly complex, technical
production process.
A. Comptroller’s argument regarding the costs at issue ignores the parties’ stipulation and contradicts Texas law.
AMC is permitted to subtract the costs listed in the stipulation by Tax
Code § 171.1012(c), (d), and (o). The Comptroller agreed that AMC was
entitled to subtract as COGS 100% of some of these costs—such as film
rent. (Id.) The Comptroller agreed that AMC was entitled to subtract a
percentage of other costs, which related to AMC movie theatre facilities.
(Id.) The only disagreement was the correct percentage of facility-related
Appellant’s Reply Brief – Page 16 costs to be determined based on where the production of the movie
occurs.14 There was no dispute at trial—and there is none in AMC’s
appeal—as to the types of costs AMC may subtract as COGS.
In the Appellees’ Brief, the Comptroller now bizarrely argues that
AMC may not subtract the costs described in Tax Code § 171.1012(o). But it
is wholly unclear which stipulated categories of costs—if any 15—the
Comptroller would seek to remove from COGS. (Appellees’ Brief at 5-6.)
Section 171.1012(o) permits a taxpayer whose “principal business
activity” is film or television production or broadcasting or the distribution
of tangible personal property including films to subtract the costs permitted
in section 171.1012 generally as COGS. The Comptroller claims that AMC
cannot subtract the costs in subsection (o) because the phase one trial court
made no specific finding of fact on AMC’s “principal business activity.” (Id.
at 6.) 16
The phase one trial court was not required to make a finding of fact
on AMC’s “principal business activity” because that fact would have no
14 The costs at issue are listed in bold in Joint Exhibit 1. (CR 233.) 15 Appellees’ Brief also notes that “[t]he parties agree on most of the numbers” listed in Joint Exhibit 1. (Appellees’ Brief at 11.) In fact, the Comptroller’s position in phase two, and the trial court’s ruling, rest wholly on the parties’ stipulation. (See CR 228-33; Supp. CR 28-29.) 16 The Comptroller improperly makes his argument in the Appellees’ Brief Statement of
Facts section labeled “Texas Law.” Including argument in the Statement of Facts is misleading to this Court and inappropriate under Tex. R. App. P. 38.1(g) & 38.2, which prohibit argument in the Statement of Facts.
Appellant’s Reply Brief – Page 17 effect on the court’s ruling. A trial court is required to make only the
findings of fact that are dispositive of the ultimate, or controlling, issues.
Tijerina v. Boletto, 207 S.W.2d 136, 137 (Tex. Civ. App.—Austin 1947, no
writ) (“It is not proper or necessary for the trial court to make specific
findings on every controverted fact”); Buckeye Retirement Co. v. Bank of
America, N.A., 239 S.W.3d 394, 402 (Tex. App.—Dallas 2007) (an ultimate
or controlling fact issue “is one that is essential to the cause of action” and
“that would have a direct effect on the judgment”). A court is “not required
to set out in detail every reason or theory by which it arrived at its final
conclusions.” H.K. Global Trading, Ltd. v. Combs, 429 S.W.3d 132, 141
(Tex. App.—Austin 2014, pet. denied) (internal quotations omitted).
The issue in phase one of trial was whether AMC was entitled to elect
to subtract its costs to exhibit films as COGS. (CR 6.) A taxpayer can elect
the COGS subtraction only if it sells “goods,” defined to include “tangible
personal property sold in the ordinary course of business.” 17 The phase one
trial court made all necessary findings—including the fact that AMC sells
tangible personal property as defined by section 171.1012(a)(3)(A)(i)— to
support its conclusion that AMC is entitled to subtract its costs to exhibit
17 Tex. Tax Code § 171.1012(a)(1).
Appellant’s Reply Brief – Page 18 films to its customers. (Supp. CR 30.) There was absolutely no need for
AMC to appeal the phase one court’s correct ruling.
B. The Comptroller’s argument regarding its calculations ignores the stipulation and is no substitute for conclusive trial evidence.
A footnote in the Appellant’s Brief notes that the Comptroller’s
calculations on AMC’s refund claim, like the entirety of the Comptroller’s
litigation position on phase two of trial, is wholly unsupported by any
evidence in the record. (Appellant’s Brief at 5 n.6.) AMC disagrees with the
Comptroller’s claim that AMC had any burden to prove the Comptroller’s
litigation position. (See Appellees’ Brief at 9.) The Comptroller, not AMC,
argued that production occurs only at the screens and speakers of the movie
theatre auditorium. AMC’s trial evidence—the only evidence in the
record—conclusively proved that the entire auditorium is used in the
production of AMC’s film product. Again, the Comptroller’s arguments
regarding stipulated numbers is bizarre and irrelevant to AMC’s appeal.
Conclusion and Prayer
For the reasons set forth above, AMC respectfully asks this Court to
reverse the district court’s judgment, and to render judgment that,
1. The entire movie theatre auditorium is used in the production of the
goods AMC sells to its customers;
Appellant’s Reply Brief – Page 19 2. As stipulated, costs associated with the square footage of the
auditorium, projection room, and 75% of concession space can be
included in AMC’s COGS subtraction (or 67.67% of the total average
movie theatre square footage); and
3. AMC is entitled to an additional tax refund amount of $349,947.00
for a total of $579,656 for Report Year 2008 and an additional
$321.334.00 for a total of $591,293 for Report Years 2009, in
addition to assessed penalty and interest and statutory interest.
Respectfully submitted,
Mark W. Eidman Texas Bar No. 06496500 Mark.Eidman@RyanLawLLP.com Doug Sigel Texas Bar No. 18347650 Doug.Sigel@RyanLawLLP.com Olga Goldberg Texas Bar No. 24083081 Olga.Goldberg@RyanLawLLP.com RYAN LAW FIRM, LLP 100 Congress Avenue, Suite 950 Austin, Texas 78701 Telephone: (512) 459-6600 Facsimile: (512) 459-6601
Attorneys for Appellant
Appellant’s Reply Brief – Page 20 Certificate of Compliance
This computer-generated document created in Microsoft Word complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains 4667 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1). In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
Doug Sigel
Certificate of Service
I certify that a copy of the foregoing Appellant’s Reply Brief was served on Appellees, Glenn Hegar and Ken Paxton, through counsel of record, Charles Eldred, Office of the Attorney General, Financial Litigation, Tax, and Charitable Trusts Division, 300 West 15th Street, 6th Floor, Austin, Texas, 78701, charles.eldred@texasattorneygeneral.gov, by electronic service through efile.txcourts.gov on January 15, 2015.
Appellant’s Reply Brief – Page 21 Tab 7 Supplemental Stipulation of Facts (Phase Two) 2/28/2014 5:42:53 PM Amalia Rodriguez-Mendoza District Clerk Travis County D-1-GN-12-003831
Cause No D-1-GN-12-003831
AMERICAN MULTI-CINEMA, INC., s IN THE DISTRICT COURT Plaintiff, s s s s SUSAN COMBS, COMPTROLLER OF s TRAVIS COUNTY, TEXAS PUBLIC ACCOUNTS OF THE STATE s OF TEXAS, and GREG ABBOTT, s ATTORNEY GENERAL OF THE STATE s OF TEXAS, s Defendants. s 2OOTH JUDICIAL DISTRICT
SUPPLEMENTAL STIPULATION OF FACTS (PHASE TWO)
The parties stipulate regarding the refund amount, but reserve the right to offer
other evidence not inconsistent with these stipulated facts.
1. Judge Byrne ruled ln Phase One that American Multi-Cinema, lnc.
("AMC") may include exhibition costs as Cost of Goods Sold ("COGS") for Report Years
2008 and 2009. Defendants do not agree with this ruling and reserve their appeal
rights, but enter into this stipulation to streamline the determination of the refund amount
based on the ruling.
2. The parties stipulate to the admissibility of Joint Exhibit 1. Defendants agree that the majority of the costs claimed by AMC as COGS qualify as exhibition
costs. These agreed costs include the costs reflected on Joint Exhibit 1 (attached),
with the exception of the percentage of certain rent, real estate taxes, utilities,
depreciation, and insurance expenses ("the disputed costs") to be included. The
disagreed costs are listed on Joint Exhibit 1 in bold. Plaintiffs contend thal67.67% of
the disputed costs should be included. Defendants disagree with this percentage and
contend that only 13.42% of the disputed costs should be included.
Phase Two Stipulation of Facts Page 1
D-1-GN-'1 2-003831', American Multi-Cinema, lnc. v. Combs American Multi-Cinema, Inc. Texas Franchise Tax Taxpayer No. 1-43-0908577-8 Summary
FOR REPORT YEAR: 2008 2009 TOTAL
Tax Refund Request -Comptroller's $229,709 $269,959 $499,668
Tax Refund Request - AMC's $579,656 $591,293 $1,170,949
Plus Penalty, Assessed Interest and Judgment TBD TBD TBD Interest
Joint Exhibit 1 American Multi-Cinema, Inc. PAGE 1 OF 1 Kansas City, MO TAX ADJUSTMENT SUMMARY TP#: 14309085778 FOR REPORT YEAR: 2008 FROM: Adjusted Verification Prior Data Per Original Audit Results Amounts Results - From: Last Report/Audit/ per Verification Col. C or Col. D Refund/FVAR (A) (B) (C) (D) (E)
AMC's Calculation Comptroller's Calculation
REPORT TYPE: Annual Annual Annual REPORT YEAR: 2008 2008 2008 REVENUE COL.D & COL.E ACCOUNTING YEAR ENDING FORWARDED FROM 3/29/2007 3/29/2007 3/29/2007 1. GROSS RECEIPTS OR SALES Col. C 2,273,966,201 2,273,966,201 2,273,966,201 2. DIVIDENDS Col. C 0 0 0 3. INTEREST Col. C 189,656,324 189,656,324 189,656,324 4. RENTS Col. C 84,023 84,023 84,023 5. ROYALTIES Col. C 0 0 0 6. GAINS/LOSSES Col. C 5,570,498 5,570,498 5,570,498 7. OTHER INCOME Col. C 245,111,359 245,111,359 245,111,359 8. TOTAL GROSS REVENUE SUM #1 - #7 2,714,388,405 2,714,388,405 2,714,388,405 9. DEDUCTIONS FROM GROSS REVENUE Exam 2 72,707,860 2,697,127 2,697,127 2,697,127 10. TOTAL REVENUE #8 - #9 $2,641,680,545 $2,711,691,278 $2,711,691,278 COST OF GOODS SOLD 11. COST OF GOODS SOLD Exam 1 1,648,143,233 1,505,303,861 1,505,303,861 1,082,151,986 12. INDIRECT OR ADMIN COSTS Col. C 9,117,635 9,117,635 9,117,635 13. OTHER Col. C 0 0 0 14. TOTAL COST OF GOODS SOLD SUM #11 - #13 $1,657,260,868 $1,514,421,496 $1,091,269,621 COMPENSATION 15. WAGES AND CASH COMPENSATION Col. C 251,518,643 251,518,643 251,518,643 16. EMPLOYEE BENEFITS Col. C 12,009,024 12,009,024 12,009,024 17. OTHER Col. C 0 0 0 18. TOTAL COMPENSATION SUM #15 - #17 $263,527,667 $263,527,667 $263,527,667 MARGIN 19. REVENUE (#10 X 70%) #10 X 70% 1,849,176,382 1,898,183,895 1,898,183,895 20. REVENUE (#10 - COGS) #10 - #14 984,419,677 1,197,269,782 1,620,421,657 21. REVENUE (#10 - COMPENSATION) #10 - #18 2,378,152,878 2,448,163,611 2,448,163,611 22. MARGIN LOWEST 19,20,21 $984,419,677 $1,197,269,782 $1,620,421,657 APPORTIONMENT FACTOR 23. GROSS RECEIPTS IN TEXAS Col. C 226,143,616 226,143,616 226,143,616 24 GROSS RECEIPTS EVERYWHERE Col. C 2,735,517,882 2,735,517,882 2,735,517,882 25. APPORTIONMENT FACTOR #23 / #24 0.0827 0.0827 0.0827 TAXABLE MARGIN 26. APPORTIONED MARGIN #22 X #25 81,411,507 99,014,211 134,008,871 27. ALLOWABLE DEDUCTIONS Col. C 0 0 0 28. TAXABLE MARGIN # 26 - # 27 $81,411,507 $99,014,211 $134,008,871 TAX DUE 29. TAX RATE Col. C 0.0100 0.0100 0.0100 30. TAX DUE #28 X #29 814,115.07 990,142.11 1,340,088.71 TAX ADJUSTMENTS 31. TAX CREDITS Exam 3 16,321.54 21,304.95 21,304.95 21,304.95 32. TAX DUE BEFORE DISCOUNT #30 - #31 797,793.53 968,837.16 1,318,783.76 33. DISCOUNT 0.00 0.00 0.00 34. TAX DUE #32 - #33 $797,793.53 $968,837.16 $1,318,783.76 35. LESS TAX PAID Tax Reports 797,749.67 1,548,493.13 1,548,493.13 36. TAX ADJUSTMENT #34 - REPORTED $43.86 ($579,655.97) ($229,709.37) 37. OTHER REFUNDS ISSUED Other Refunds 0.00 0.00 0.00 38. OTHER FVAR REFUNDS OR ASSESSMENTS Other FVARs 0.00 0.00 0.00 39. OTHER BART REFUNDS OR ASSESSMENTS Other BARTs 0.00 0.00 0.00 40. OTHER AUDIT ADJUSTMENTS Per Audit 0.00 0.00 0.00 41. NET TAX ADJUSTMENT #36-#37-#38-#39-#40 $43.86 ($579,655.97) ($229,709.37)
Joint Exhibit 1 American Multi-Cinema, Inc. PAGE 1 OF 1 Kansas City, MO Original Audit Preparer/Date: KJ - 10/07/09 TAX ADJUSTMENT SUMMARY TP#: 14309085778 FOR REPORT YEAR: 2009 FROM: Adjusted Verification Prior Data Per Original Audit Results Amounts Results - From: Last Report/Audit/ per Verification Col. C or Col. D Refund/FVAR (A) (B) (C) (D) (E) AMC's Calculation Comptroller's Calculation REPORT TYPE: Annual Annual Annual
REPORT YEAR: 2009 2009 2009
REVENUE COL.D & COL.E ACCOUNTING YEAR ENDING FORWARDED FROM 4/3/2008 4/3/2008 4/3/2008 1. GROSS RECEIPTS OR SALES Col. C 2,282,273,284 2,282,273,284 2,282,273,284 2. DIVIDENDS Col. C 574,130 574,130 574,130 3. INTEREST Col. C 188,097,438 188,097,438 188,097,438 4. RENTS Col. C 0 0 0 5. ROYALTIES Col. C 216,626 216,626 216,626 6. GAINS/LOSSES Col. C (13,370,666) (13,370,666) (13,370,666) 7. OTHER INCOME Col. C 73,894,886 73,894,886 73,894,886 8. TOTAL GROSS REVENUE SUM #1 - #7 2,531,685,698 2,531,685,698 2,531,685,698 9. DEDUCTIONS FROM GROSS REVENUE Col. C 130,697 130,697 130,697 10. TOTAL REVENUE #8 - #9 $2,531,555,001 $2,531,555,001 $2,531,555,001 COST OF GOODS SOLD 11. COST OF GOODS SOLD Exam 1 1,660,610,572 1,514,869,422 1,514,869,422 1,099,171,074 12. INDIRECT OR ADMIN COSTS Col. C 9,530,393 9,530,393 9,530,393 13. OTHER Col. C 0 0 0 14. TOTAL COST OF GOODS SOLD SUM #11 - #13 $1,670,140,965 $1,524,399,815 $1,108,701,467 COMPENSATION 15. WAGES AND CASH COMPENSATION Col. C 208,369,216 208,369,216 208,369,216 16. EMPLOYEE BENEFITS Col. C 3,398,514 3,398,514 3,398,514 17. OTHER Col. C 0 0 0 18. TOTAL COMPENSATION SUM #15 - #17 $211,767,730 $211,767,730 $211,767,730 MARGIN 19. REVENUE (#10 X 70%) #10 X 70% 1,772,088,501 1,772,088,501 1,772,088,501 20. REVENUE (#10 - COGS) #10 - #14 861,414,036 1,007,155,186 1,422,853,534 21. REVENUE (#10 - COMPENSATION) #10 - #18 2,319,787,271 2,319,787,271 2,319,787,271 22. MARGIN LOWEST 19,20,21 $861,414,036 $1,007,155,186 $1,422,853,534 APPORTIONMENT FACTOR 23. GROSS RECEIPTS IN TEXAS Col. C 195,814,649 195,814,649 195,814,649 24 GROSS RECEIPTS EVERYWHERE Col. C 2,531,685,697 2,531,685,697 2,531,685,697 25. APPORTIONMENT FACTOR #23 / #24 0.0773 0.0773 0.0773 TAXABLE MARGIN 26. APPORTIONED MARGIN #22 X #25 66,587,305 77,853,096 109,986,578 27. ALLOWABLE DEDUCTIONS Col. C 0 0 0 28. TAXABLE MARGIN # 26 - # 27 $66,587,305 $77,853,096 $109,986,578 TAX DUE 29. TAX RATE Col. C 0.0100 0.0100 0.0100 30. TAX DUE #28 X #29 665,873.05 778,530.96 1,099,865.78 TAX ADJUSTMENTS 31. TAX CREDITS Exam 3 16,321.54 $ 20,911.35 20,911.35 20,911.35 32. TAX DUE BEFORE DISCOUNT #30 - #31 649,551.51 757,619.61 1,078,954.43 33. DISCOUNT 0.00 0.00 0.00 34. TAX DUE #32 - #33 $649,551.51 $757,619.61 $1,078,954.43 35. LESS TAX PAID Tax Reports 649,507.99 1,348,913.06 1,348,913.06 36. TAX ADJUSTMENT #34 - REPORTED $43.52 ($591,293.45) ($269,958.63) 37. OTHER REFUNDS ISSUED Other Refunds 0.00 0.00 0.00 38. OTHER FVAR REFUNDS OR ASSESSMENTS Other FVARs 0.00 0.00 0.00 39. OTHER BART REFUNDS OR ASSESSMENTS Other BARTs 0.00 0.00 0.00 40. OTHER AUDIT ADJUSTMENTS Per Audit 0.00 0.00 0.00 41. NET TAX ADJUSTMENT #36-#37-#38-#39-#40 $43.52 ($591,293.45) ($269,958.63)
Joint Exhibit 1 AMC ENTERTAINMENT, INC. AMC ENTERTAINMENT, INC. TEXAS FRANCHISE TAX AUDIT TEXAS FRANCHISE TAX AUDIT COST OF GOODS SOLD SUMMARY COST OF GOODS SOLD SUMMARY REPORT YEAR 2008 REPORT YEAR 2009
ACCOUNT ACCOUNT DESCRIPTION Stipulated Total AMC Comptroller ACCOUNT ACCOUNT DESCRIPTION Stipulated Total AMC Comptroller 60001 FILM RENT ESTIMATES 829,788,277 829,788,277 829,788,277 60001 FILM RENT ESTIMATES 840,563,482 840,563,482 840,563,482 82001 BASE RENT (excludes HQ) 400,927,789 271,307,835 53,804,509 82001 BASE RENT (excludes HQ) 409,177,901 276,890,685 54,911,674 80401 DEPR EXP - FF & E 111,245,459 75,279,802 14,929,141 80401 DEPR EXP - FF & E 105,691,205 71,521,239 14,183,760 83004 REAL ESTATE TAX EXPENSE 75,664,772 51,202,351 10,154,212 83004 REAL ESTATE TAX EXPENSE 77,863,009 52,689,898 10,449,216 63001 UTILITIES 72,330,866 48,946,297 9,706,802 63001 UTILITIES 75,677,010 51,210,633 10,155,855 61001 CONCESSIONS MDSE COSTS 68,241,492 * 68,241,492 68,241,492 61001 CONCESSIONS MDSE COSTS 71,332,206 * 71,332,206 71,332,206 80901 DEPR EXP - L/I 62,385,700 42,216,403 8,372,161 80901 DEPR EXP - L/I 60,094,001 40,665,610 8,064,615 62001 HOURLY WAGES 37,427,506 * 37,427,506 37,427,506 62001 HOURLY WAGES 38,152,292 * 38,152,292 38,152,292 64501 MAINTENANCE EXPENSE 22,828,015 15,447,718 3,063,520 64501 MAINTENANCE EXPENSE 23,018,665 15,576,730 3,089,105 60501 NEWSPAPER SUSTAINING - (1) - - 60501 NEWSPAPER SUSTAINING 0 (1) 0 0 82002 PERCENTAGE RENT 7,412,273 5,015,885 994,727 82002 PERCENTAGE RENT 7,273,236 4,921,799 976,068 81401 DEPR EXP - BLDGS 6,346,752 4,294,847 851,734 81401 DEPR EXP - BLDGS 7,453,921 5,044,068 1,000,316 83005 PERSONAL PROP. TAX EXPENSE 5,508,574 5,508,574 5,508,574 83005 PERSONAL PROP. TAX EXPENSE 4,835,928 4,835,928 4,835,928 60101 FILM TAXES 5,227,983 5,227,983 5,227,983 60101 FILM TAXES 5,687,074 5,687,074 5,687,074 84006 PROPERTY INSURANCE 4,989,523 3,376,410 669,594 84006 PROPERTY INSURANCE 4,751,824 3,215,559 637,695 60002 FILM RENT BUYER ADJST 3,801,473 3,801,473 3,801,473 60002 FILM RENT BUYER ADJST 14,033,702 14,033,702 14,033,702 60509 OTHER ADVERTISING 3,273,708 3,273,708 3,273,708 60509 OTHER ADVERTISING 1,683,048 1,683,048 1,683,048 82003 SPACE RENT SALES TAX 3,047,699 2,062,378 409,001 82003 SPACE RENT SALES TAX 3,132,739 2,119,925 420,414 67001 FILM FREIGHT 2,414,505 2,414,505 2,414,505 67001 FILM FREIGHT 2,495,334 2,495,334 2,495,334 60503 PRE-ENTERTAINMENT EXPENSE 1,828,538 1,828,538 1,828,538 60503 PRE-ENTERTAINMENT EXPENSE 16,314,311 16,314,311 16,314,311 81601 DEPR-CAP LEASES BLDG 1,461,545 989,027 196,139 81601 DEPR-CAP LEASES BLDG 1,353,777 916,101 181,677 62004 SALARIES 10500 FILM PROGRAMMING 1,428,179 1,428,179 1,428,179 62004 SALARIES 10500 FILM PROGRAMM 1,508,073 1,508,073 1,508,073 62004 SALARIES 95400 FILM PROGRAMMING KC 866,120 866,120 866,120 62004 SALARIES 96300 FOOD AND BEVE 725,737 725,737 725,737 62004 SALARIES 10910 PROCUREMENT 139,137 139,137 139,137 62004 SALARIES 95400 FILM PROGRAMM 707,862 707,862 707,862 62012 OVERTIME PAY 703,605 * 703,605 703,605 62012 OVERTIME PAY 676,625 676,625 676,625 60502 COOP AND MULTIPLES ADV 612,955 612,955 612,955 82004 SPACE RENT INSURANCE 258,363 174,834 34,672 62004 SALARIES 96300 FOOD AND BEVERAGE 451,898 451,898 451,898 82006 MERCHANT'S ASSOCIATION RENT 233,011 157,678 31,270
82004 SPACE RENT INSURANCE 240,542 162,775 32,281 62004 SALARIES 10910 PROCUREMENT 175,253 175,253 175,253 82006 MERCHANT'S ASSOCIATION RENT 244,919 165,737 32,868 64503 MAINTENANCE - LABOR 64,621 43,729 8,672 60102 FILM RENT - FOUR WALLS 178,389 120,716 23,940 60506 ADVERTISING ACCESSORIES 5,733 5,733 5,733 62014 ACCR HOURLY PAY 134,811 * 134,811 134,811 61003 COST OF T-SHIRTS & MDSE. (3,224) * (3,224) (3,224) 64503 MAINTENANCE - LABOR 84,886 57,442 11,392 60102 FILM RENT - FOUR WALLS (34,544) (23,376) (4,636) 60506 ADVERTISING ACCESSORIES 33,945 33,945 33,945 60507 PREOPENING ADVERTISING 1,928,637 1,928,637 1,928,637 61003 COST OF T-SHIRTS & MDSE. 7,249 * 7,249 7,249 62014 ACCR HOURLY PAY (676,100) * (676,100) (676,100) 61004 SALES TAX ON CONC/MDSE/ADM 144 144 144 60004 H.O. FILM RENT ADJUSTMENT (3,807,559) (3,807,559) (3,807,559) 60003 FILM RENT SETTLMENT ADJST (310,826) (310,826) (310,826) 82301 CAP LEASE CONTRA - BLDG (9,744,504) (6,594,106) (1,307,712) 60507 PREOPENING ADVERTISING (566,963) (566,963) (566,963) TOTAL DIRECT COGS 1,762,602,649 1,514,869,422 1,099,171,074 60004 H.O. FILM RENT ADJUSTMENT (1,326,230) (1,326,230) (1,326,230) Indirect COGS 9,530,393 9,530,393 9,530,393 82301 CAP LEASE CONTRA - BLDG (7,961,874) (5,387,800) (1,068,483) TOTAL COGS 1,772,133,042 1,524,399,815 1,108,701,467 DIRECT COGS FOR FEDERAL GROUP 1,721,113,334 1,474,943,903 1,061,869,617 60001 LOEKS FILM RENT ESTIMATES 17,614,418 17,614,418 17,614,418 60002 LOEKS FILM RENT BUYER ADJUSTMENT 280,708 280,708 280,708 * Agreed in Audit. 60003 LOEKS FILEM RENT SETTLEMENT ADJUSTME 22,248 22,248 22,248 (1) Agreed by AMC to withdraw. 60004 LOEKS HO FILM RENT ADJUSTMENT (58,772) (58,772) (58,772) Note: Amounts in bold adjusted to reflect 67.67% of the total for AMC and 12.86% of the total for the Comptroller's 67001 LOEKS FILM FREIGHT 59,276 59,276 59,276 LOEKS-STAR COGS 18,386,407 12,442,082 2,364,492 TOTAL DIRECT COGS 1,757,417,618 1,505,303,861 1,082,151,986 Indirect COGS 9,117,635 9,117,635 9,117,635 TOTAL COGS 1,766,535,253 1,514,421,496 1,091,269,621
* Agreed in Audit. (1) Agreed by AMC to withdraw. Note: Amounts in bold adjusted to reflect 67.67% of the total for AMC and 13.42% of the total for the Comptroller's positions.
Joint Exhibit 1