Bowie v. WASHINGTON DEPT. OF REVENUE

248 P.3d 504
CourtWashington Supreme Court
DecidedFebruary 10, 2011
Docket83426-1
StatusPublished
Cited by3 cases

This text of 248 P.3d 504 (Bowie v. WASHINGTON DEPT. OF REVENUE) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowie v. WASHINGTON DEPT. OF REVENUE, 248 P.3d 504 (Wash. 2011).

Opinion

248 P.3d 504 (2011)

Richard and Annette BOWIE d/b/a Val-Pak of Western Washington, et al., Petitioners,
v.
WASHINGTON DEPARTMENT OF REVENUE, Respondent.

No. 83426-1.

Supreme Court of Washington, En Banc.

Argued September 14, 2010.
Decided February 10, 2011.

*505 Scott M. Edwards, Lane Powell PC, Seattle, WA, for Petitioners.

Heidi A. Irvin, Donald F. Cofer, Attorney General's Office, Olympia, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 Petitioners Richard and Annette Bowie, d/b/a Val-Pak of Western Washington et al. comprise eight franchisees of Val-Pak Direct Marketing Systems Inc. (VPDMS), a Delaware corporation, with its principal place of business in Largo, Florida. Petitioners solicit advertisements and perform tasks related to their ultimate inclusion in blue "Val-Pak Envelopes," which are distributed in Western Washington by VPDMS.

¶ 2 Petitioners are subject to Washington's business and occupation (B & O) tax statute, chapter 82.04 RCW, but contest the applicable tax rate during the period of 1998-2006. If Val-Pak Envelopes qualify as a "periodical or magazine" as defined in RCW 82.04.280,[1]*506 the applicable tax rate would be 0.484 percent. Otherwise, the applicable tax rate is 1.5 percent under the "catchall" rate of RCW 82.04.290(2)[2] because petitioners' business activities do not fall within a specific classification listed in chapter 82.04 RCW. Petitioners do not claim or argue that Val-Pak Envelopes are newspapers.

¶ 3 Because Val-Pak Envelopes are not "periodicals or magazines," and because petitioners are not engaged in the business of "printing, and of publishing," we find that petitioners' business is taxable under the general, higher rate of RCW 82.04.290(2) and not under RCW 82.04.280. We reverse the Court of Appeals and affirm the trial court's grant of summary judgment to the Washington Department of Revenue (Department).

FACTS AND PROCEDURAL HISTORY

¶ 4 Petitioners entered into franchise agreements with VPDMS at various points in time prior to January 1998, the beginning of the tax refund period in question.[3] The franchise agreement states that VPDMS "is engaged in the business of publishing and distributing by direct mail promotional literature and packages known as VAL-PAK Envelopes." Clerk's Papers (CP) at 227. Petitioners, on the other hand, have "the right and license to sell advertising inserts or other advertising products offered by [VPDMS] to be placed in VAL-PAK Envelopes to be distributed solely within the [relevant] Territory[4].. . ." Id. at 229.

¶ 5 Petitioners have the exclusive right and license "to order Mailings of VAL-PAK Envelopes distributed into the Territory, and to approve each Advertising Insert which [VPDMS] . . . proposes to place in any VAL-PAK Envelope to be mailed within the Territory." Id. at 229-30. The franchise agreement, however, does not include "any right on the part of FRANCHISEE to itself print, publish or distribute VAL-PAK Envelopes or Advertising Inserts bearing the Marks or to cause any third party to do any of the foregoing. . . ." Id. at 230. In fact, the petitioners are expressly prohibited from engaging in such activities.

¶ 6 The franchise agreement states that VPDMS is the sole publisher and distributor of Val-Pak Envelopes and that VPDMS shall have final approval over the form and content of each item to be included in a Val-Pak Envelope and shall have the sole discretion *507 to determine the appearance and style of Val-Pak Envelopes.

¶ 7 The legal dispute we resolve here began with a letter sent to the Department on October 14, 2002, by a lawyer representing Val-Pak of Western Washington. The letter requested a ruling on the appropriate B & O tax classification for income received from Val-Pak advertising.

¶ 8 The Department responded by ruling that "advertising income received by publishers of magazines and periodicals is also taxed at the printing and publishing classification rate [stated in RCW 82.04.280]" but noted that a question remained concerning whether the Val-Pak Envelopes were periodicals "issued regularly at stated intervals." CP at 40 (emphasis added). For a publication to be considered a periodical or magazine, the Department ruled that "it would need to have a place in the publication where the issue interval is stated." Id.

¶ 9 Seeking to demonstrate that Val-Pak Envelopes were periodicals, David and Annette Bowie of Val-Pak of Western Washington provided a mailing distribution schedule to the Department. The Department responded on December 4, 2002, by stating that the Val-Pak Envelopes did in fact meet the definition of "periodical" under RCW 82.04.280: it ruled that the statute does not require the intervals to be "stated on the publication for it to meet the definition of a magazine or periodical." Id. at 42. The petitioners filed refund claims with the Department in response to the clarification.

¶ 10 On March 12, 2003, however, the Department rescinded the letter of December 4, 2002, in another letter, finding that the Val-Pak Envelopes are not periodicals but are "advertising circulars."[5]Id. at 44-45. Val-Pak Envelopes, therefore, were taxable under RCW 82.04.290(2) and not under RCW 82.04.280. The rescission was based in pertinent part on the Department's tax ruling, Determination No. 88-10, 4 WTD 437 (1987), which had found a taxpayer was not taxable under RCW 82.04.280 because the taxpayer only arranged for the printing of coupons and flyers and their distribution by mail, with the actual printing and mailing provided by a third party. The Department ruled that petitioners were providing the same service as the taxpayer in the determination.

¶ 11 Petitioners filed an appeal with the Department's appeals division on April 11, 2003, requesting that the rescission letter be reversed. The request was denied on May 29, 2003. On December 28, 2005, the appeals division issued Final Executive Level Determination No. 05-0217E (Determination), which found the petitioners' businesses to be properly taxable under RCW 82.04.290(2). The Determination held that "[b]ecause Taxpayers do not print the envelopes, but merely publishes them, the envelopes must qualify as a `periodical or magazine' in order for the printing and publishing B & O tax classification to apply." CP at 279. Noting that "[n]othing in the title [of the session law adopted by the legislature][6]

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248 P.3d 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowie-v-washington-dept-of-revenue-wash-2011.