Mountain Cable Co. v. Department of Taxes

721 A.2d 507, 168 Vt. 454, 1998 Vt. LEXIS 392
CourtSupreme Court of Vermont
DecidedNovember 13, 1998
DocketNo. 97-290
StatusPublished
Cited by3 cases

This text of 721 A.2d 507 (Mountain Cable Co. v. Department of Taxes) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mountain Cable Co. v. Department of Taxes, 721 A.2d 507, 168 Vt. 454, 1998 Vt. LEXIS 392 (Vt. 1998).

Opinion

Wesley, Supr. J.,

Specially Assigned. At issue in this appeal is whether installation and connection fees charged by cable television companies are subject to sales tax under Vermont law. We affirm the superior court’s order upholding the Commissioner of Taxes’ determination that such fees are taxable amusement charges.

The facts are not in dispute. From 1989 to 1992, Mountain Cable Company and Better TV Inc. of Bennington (“taxpayers”), two commonly owned cable television providers, charged customers a flat one-time installation or initiation fee for connecting them to the cable network. In the typical case involving a new customer without a cable-ready home, taxpayers’ technicians would run aerial or underground coaxial wire from a telephone pole outside the customer’s residence to one or more outlets installed in the customer’s home. Although the $20 to $25 installation fee recovered only about fifty percent of the actual cost of a first-time installation, taxpayers recouped the rest of the costs by charging the same amount for initiating service in previously-wired homes, which would involve merely engaging a switch on a telephone pole.

During the relevant period, taxpayers took the position that the fees they charged for installation or initiation of cable television service were not “amusement charges,” and thus not subject to sales tax. See 32 V.S.A. § 9771(4) (sales tax shall be paid upon receipts from amusement charges). In November 1992, the Department of [456]*456Taxes notified taxpayers that they were required to collect and turn over sales taxes imposed on their installation and initiation fees. Taxpayers filed an administrative appeal, and the Commissioner issued a determination upholding the Department’s position, ordering taxpayers to pay uncollected sales taxes on installation or service initiation charges required of their customers for the commencement, or reconnection, of cable television signals. Noting that customers could not choose to forgo the installation fees and still obtain cable programming, the Commissioner reasoned that the fees were merely one component of the transaction for the provision of cable television services, and thus should be considered “service charges” under 32 V.S.A. § 9701(10) (“amusement charges” include “service charges of cable television systems”). The superior court upheld the Commissioner’s determination, in turn, concluding that § 9701(10) does not limit “service charges” to just the monthly programming fee.

On appeal, taxpayers argue that the superior court erred (1) by according the Commissioner an undue degree of deference on a purely legal question of statutory interpretation, (2) by improperly imposing upon them the burden of proving that the installation fees were not subject to sales tax, and (3) in concluding that the installation fees were “amusement charges” subject to sales tax.

It is undisputed that “amusement charges,” as defined by § 9701(10), are subject to sales tax. Under that statutory provision, the term “amusement charges” means:

the admission charge (including any subsidiary, service or cover charge) to, and any charge for the use of any place of recreation or amusement. . . including specifically service charges of cable television systems or other audio or video programming systems that operate by wire, coaxial cable, lightwave, microwave, satellite transmission or by other similar means.

32 V.S.A. § 9701(10) (emphasis added). The key issue, then, is whether “service charges” include installation and initiation fees.

Without question, the common, ordinary meaning of the term “service charges” would include any fee charged for installing a product or system. See Cable Television Ass’n v. Finneran, 954 F.2d 91, 99 (2d Cir. 1992) (term “cable services” is not limited to cable programming, but includes both provision of equipment necessary to receive service and charge for installation to obtain service). Indeed, in the context of the sale of tangible personal property, fees desig[457]*457nated as “service charges” most often denote charges associated with the installation or delivery of the product. Because the term “service charges” is not defined in the statute, we must presume that the Legislature intended the everyday commonly understood meaning that would certainly encompass installation and initiation fees. See Shetland Properties, Inc. v. Town of Poultney, 145 Vt. 189, 194, 484 A.2d 929, 932 (1984) (words undefined in statute are given their plain and commonly accepted usage).

Taxpayers argue, however, that in the cable television industry the term “service charge,” as demonstrated by the exhibits in this case, is often used when referring to fees for providing monthly programming service. We do not find this argument persuasive. The fact that the term “service charge” might be used on cable bills to refer to monthly fees for programming services does not suggest that it is limited to that meaning or that it is not generally understood to include fees for installing or initiating service. The cable industry cannot infect the tax code with an ambiguity simply by giving different names to the various fees it imposes for providing cable signals. If that were the case, the industry’s ability to evade sales tax on its services would be limited only by the creativity of its marketing staff. Further, the Legislature would be sorely tested to fashion statutory provisions to immunize itself against the “ambiguity virus” arising from the very commercial entities it seeks to tax.

In any event, the Legislature has already provided the antidote for this potential epidemic by broadly defining “amusement charges” and by placing the burden on taxpayers to show that charges are outside that broad definition. Whether termed an “admission charge,” “cover charge,” “subsidiary charge,” or “service charge,” the costs associated with enjoying the specified taxable activities come within the definition of an “amusement charge.” 32 V.S.A. § 9701(10). The denomination of alternative common names for amusement charges should have forestalled the name game relied upon by taxpayers.

To further discourage precisely the sort of challenge taxpayers have mounted here, the Legislature expressly limited the arguments which cable companies, and all other operators of amusements, might raise to escape taxation based on creative nomenclature. Section 9813(a) of Title 32 of the Vermont Annotated Statutes establishes a special presumption applicable to the collection of sales taxes:

For the purpose of the proper administration of this chapter and to prevent evasion of the tax hereby imposed, it shall be presumed that all receipts for property or services [458]*458of any type mentioned in subdivisions (1), (2) and (3) of section 9771 of this title, and all amusement charges of any type mentioned in subdivision (4) of section 9771, are subject to tax until the contrary is established, and the burden of proving that any receipt or amusement charge is not taxable hereunder shall be upon the person required to collect tax.

32 V.S.A. § 9813(a) (emphasis added). The provision unmistakably delineates the legislative desire to broadly sweep amusement charges, by whatever name they may be called, within the ambit of the sales tax.

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Bluebook (online)
721 A.2d 507, 168 Vt. 454, 1998 Vt. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mountain-cable-co-v-department-of-taxes-vt-1998.